<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 14, 1998
REGISTRATION NO. 333-65837
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON. D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
FIDELITY NATIONAL FINANCIAL, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C>
DELAWARE 86-0498599
(STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
</TABLE>
17911 VON KARMAN AVENUE
IRVINE, CALIFORNIA 92614
(949) 622-5000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE)
M'LISS JONES KANE
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
FIDELITY NATIONAL FINANCIAL, INC.
17911 VON KARMAN AVENUE, SUITE 300
IRVINE, CALIFORNIA 92614
(949) 622-5000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
C. CRAIG CARLSON, ESQ.
J. MICHAEL VAUGHN, ESQ.
CHRISTOPHER D. IVEY, ESQ.
STRADLING YOCCA CARLSON & RAUTH
660 NEWPORT CENTER DRIVE
NEWPORT BEACH, CALIFORNIA 92660
(949) 725-4000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to time
after this Registration Statement becomes effective, as determined by market
conditions.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
================================================================================
<PAGE> 2
SUBJECT TO COMPLETION, DATED DECEMBER 14, 1998
PROSPECTUS
$150,000,000
FIDELITY NATIONAL FINANCIAL, INC.
DEBT SECURITIES, PREFERRED STOCK,
DEPOSITARY SHARES AND COMMON STOCK
------------------------
Fidelity National Financial, Inc. may from time to time offer and sell Debt
Securities, shares of Preferred Stock, Depositary Shares representing fractional
interests in shares of Preferred Stock, and shares of Common Stock for an
aggregate initial public offering price of up to $150,000,000. We will provide
the specific terms and the initial public offering prices of these securities
and the net proceeds from the sale of these securities in supplements to this
prospectus. You should read this prospectus and the applicable prospectus
supplement carefully before you invest. This prospectus may not be used to sell
securities unless accompanied by a prospectus supplement.
------------------------
The Common Stock is traded on the New York Stock Exchange under the symbol
"FNF". Any Common Stock sold pursuant to a prospectus supplement will be listed
on such exchange.
------------------------
The securities offered hereby may be sold directly through agents or to or
through underwriters or dealers. See "Plan of Distribution." If any agents or
underwriters are involved in the sale of any securities, their names, any
applicable commissions or discounts and the nature of any underwriting
arrangements will be set forth in a prospectus supplement.
------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
------------------------
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the Registration Statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
------------------------
The date of this prospectus is
<PAGE> 3
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement filed by Fidelity National
Financial, Inc. with the SEC using a "shelf" registration process. Under this
shelf process, we may sell any combination of the securities described in this
prospectus, either separately or in units, in one or more offerings up to a
total dollar amount of $150,000,000. This prospectus provides you with a general
description of those securities. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering. The prospectus supplement may also add, update or change
information contained in this prospectus. You should read this prospectus and
the applicable prospectus supplement together with the additional information
described under the heading "Where You Can Find More Information."
The registration statement that contains this prospectus (including the exhibits
to the registration statement) contains additional information about Fidelity
and the securities offered under this prospectus. That registration statement
can be read at the SEC's web site or at the SEC's offices mentioned under the
heading "Where You Can Find More Information."
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and copy
any document we file with the SEC at its public reference facilities at 450
Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300,
New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents
at prescribed rates by writing to the Public Reference Section of the SEC at 450
Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the operation of the public reference
facilities. Our SEC filings are also available at the office of the New York
Stock Exchange. For further information on obtaining copies of our public
filings at the New York Stock Exchange, you should call (212) 656-5060.
We "incorporate by reference" into this prospectus the information we file with
the SEC, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this Prospectus and information that we file subsequently
with the SEC will automatically update this Prospectus. We incorporate by
reference the documents listed below and any filings we make with the SEC under
Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 after
the initial filing of the registration statement that contains this Prospectus
and prior to the time that we sell all the securities offered by this
Prospectus:
- - Annual Report on Form 10-K, as amended, for the year ended December 31, 1997;
- - Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June 30,
1998 and September 30, 1998 (as amended);
- - Current Reports on Form 8-K dated February 26, 1998 (as amended), March 19,
1998, March 25, 1998, April 23, 1998, May 6, 1998, June 24, 1998, August 20,
1998 and October 22, 1998; and
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<PAGE> 4
- - The description of our Common Stock which is contained in our Registration
Statement on Form 8-A filed under the Exchange Act, including any amendment or
reports filed for the purpose of updating such description.
The financial statements in our Annual Report on Form 10-K for the year ended
December 31, 1997 have been restated to reflect our acquisition of Granite
Financial, Inc. in February 1998. The restated financial statements can be found
in our Current Report on Form 8-K dated June 24, 1998.
You may request a copy of these filings (other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that filing)
at no cost, by writing to or telephoning us at the following address:
Corporate Secretary
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92614
(949) 622-5000
You should rely only on the information incorporated by reference or set forth
in this prospectus or the applicable prospectus supplement. We have not
authorized anyone else to provide you with different information. We may only
use this prospectus to sell securities if it is accompanied by a prospectus
supplement. We are only offering these securities in states where the offer is
permitted. You should not assume that the information in this prospectus or the
applicable prospectus supplement is accurate as of any date other than the dates
on the front of those documents.
3
<PAGE> 5
THE COMPANY
Fidelity is one of the largest national title insurance underwriters and also
provides diversified real estate services. We are engaged in doing business in
49 states, the District of Columbia, Puerto Rico, the Bahamas and the Virgin
Islands. Through our subsidiaries, Fidelity issues title insurance policies and
performs other title-related services such as escrow, collection and trust
activities, real estate information and technology services, trustee sales
guarantees, credit reporting, attorney services, flood certification, real
estate tax services, reconveyances, recordings, foreclosure publishing and
posting services and exchange intermediary services in connection with real
estate transactions. Title insurance and related services are provided through
our direct operations and otherwise through independent title insurance agents
who issue title policies on behalf of our underwriting subsidiaries. Title
insurance is generally accepted as the most efficient means of determining title
to, and the priority of interests in, real estate in nearly all parts of the
United States. Today, virtually all real property mortgage lenders require their
borrowers to obtain a title insurance policy at the time a mortgage loan is made
or to allow the sale of loans in the secondary market.
Fidelity's principal underwriting subsidiaries are Fidelity National Title
Insurance Company, Fidelity National Title Insurance Company of New York,
Fidelity National Title Insurance Company of Tennessee, Nations Title Insurance
of New York Inc., National Title Insurance of New York Inc., and Alamo Title
Insurance. Fidelity also operates through our underwritten title companies, a
national network of agents and our real estate-related ancillary service
companies. Additionally, through Granite Financial, Inc., the Company
originates, funds, purchases, sells, securitizes and services equipment leases
for a broad range of businesses.
During 1996 and 1997, Fidelity expanded its platform of title and real estate
transactional services and increased its market share in the commercial and
agency segments of the title industry. Through our proprietary technology
Fidelity offers fully integrated software to our customers in the real estate
closing business, creating a competitive advantage through increased
productivity and accuracy.
Fidelity has long recognized the perceived volatility of the title insurance
industry as it relates to interest rates and other factors affecting the real
estate industry. As a result, Fidelity will continue to consider strategic
opportunities in businesses that are less interest rate sensitive than the title
industry.
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<PAGE> 6
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the net proceeds
from the sale of the offered securities will be added to our general funds and
may be used:
- - to meet our working capital requirements;
- - to repurchase or redeem our outstanding debt securities;
- - to refinance or repay our outstanding borrowings;
- - to make investments in or loans to our subsidiaries;
- - to finance acquisitions; and
- - for other general corporate purposes.
RATIOS OF EARNINGS TO FIXED CHARGES
The ratios of earnings to fixed charges of Fidelity for each of the periods
indicated were as follows:
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
- -------------------------------- -------------
1993 1994 1995 1996 1997 1997 1998
- ---- ---- ---- ---- ---- ----- -----
<S> <C> <C> <C> <C> <C> <C>
26.2 3.0 2.1 5.2 8.0 6.9 15.1
</TABLE>
These computations include Fidelity, and except as otherwise noted, Fidelity's
subsidiaries and 50% or less owned companies. For these ratios, "earnings" is
determined by adding "fixed charges" (excluding interest capitalized), income
taxes, minority common stockholders' equity in net income and amortization of
interest capitalized to income from continuing operations after eliminating
equity in undistributed earnings and adding back losses of companies in which at
least 20% but less than 50% stock is owned. For this purpose, "fixed charges"
consists of (i) interest on all debt and amortization of debt discount and
expense, (ii) interest capitalized, and (iii) an interest factor attributable to
rentals.
Fidelity's ratios of earnings to combined fixed charges and preferred stock
dividends for the periods indicated above are the same as the ratios of earnings
to fixed charges, because Fidelity had no shares of preferred stock outstanding
during the periods indicated and currently has no such shares outstanding.
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<PAGE> 7
CERTAIN FINANCIAL INFORMATION
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
The following table sets forth selected financial data of Fidelity as of and for
each of the years in the three-year period ended December 31, 1997 and as of and
for the nine months ended September 30, 1997 and 1998. The financial information
presented herein has been restated for Fidelity's merger with Granite Financial,
Inc. in February 1998 as if the companies had been combined as of and for each
of the periods presented. The financial information presented herein for the
nine month periods ended September 30, 1997 and 1998 include data relating to
Alamo Title Holding Company, which Fidelity acquired in August 1998. The
following selected consolidated financial data should be read in conjunction
with Fidelity's Consolidated Financial Statements and the Notes thereto
incorporated by reference herein. See "Where You Can Find More Information."
<TABLE>
<CAPTION>
NINE MONTHS ENDED
YEAR ENDED DECEMBER 31, SEPTEMBER 30,
------------------------------ -------------------
1995 1996 1997 1997 1998
-------- -------- -------- -------- --------
(UNAUDITED)
<S> <C> <C> <C> <C> <C>
STATEMENT OF EARNINGS DATA:
Total revenue............................... $409,845 $642,377 $763,181 $609,856 $913,070
Total expenses.............................. 400,385 600,004 684,329 555,939 780,610
-------- -------- -------- -------- --------
Earnings before income taxes and
extraordinary item....................... 9,460 42,373 78,852 53,917 132,460
Income tax expense.......................... 1,828 16,846 34,055 22,047 55,540
-------- -------- -------- -------- --------
Earnings before extraordinary item.......... 7,632 25,527 44,797 31,870 76,920
Extraordinary item.......................... (813) -- (1,700) -- --
-------- -------- -------- -------- --------
Net earnings................................ $ 6,819 $ 25,527 $ 43,097 $ 31,870 76,920
======== ======== ======== ======== ========
PER SHARE AND OTHER DATA:
Basic net earnings.......................... $ 6,819 $ 25,527 $ 43,097 $ 31,870 $ 76,920
======== ======== ======== ======== ========
Basic earnings per share before
extraordinary item....................... $ 0.50 $ 1.53 $ 2.32 $ 1.57 $ 3.06
Extraordinary item.......................... (0.05) -- (0.09) -- --
-------- -------- -------- -------- --------
Basic net earnings per share................ $ 0.45 $ 1.53 $ 2.23 $ 1.57 $ 3.06
======== ======== ======== ======== ========
Weighted average shares outstanding, basic
basis.................................... 15,131 16,647 19,272 20,325 25,139
Diluted net earnings........................ $ 6,819 $ 28,723 $ 46,239 $ 34,302 $ 78,803
======== ======== ======== ======== ========
Diluted earnings per share before
extraordinary item....................... $ 0.49 $ 1.30 $ 1.92 $ 1.30 $ 2.60
Extraordinary item.......................... (0.05) -- (0.07) -- --
-------- -------- -------- -------- --------
Diluted net earnings per share.............. $ 0.44 $ 1.30 $ 1.85 $ 1.30 $ 2.60
======== ======== ======== ======== ========
Weighted average shares outstanding,
diluted basis............................ 15,694 22,106 24,948 26,434 30,315
Dividends per share......................... $ 0.22 $ 0.24 $ 0.26 $ 0.19 $ 0.21
Earnings before income taxes and
extraordinary item as a percent of total
revenue.................................. 2.31% 6.60% 10.33% 8.84% 14.51%
BALANCE SHEET DATA:
Investments................................. $180,082 $227,674 $326,877 $317,025 $407,733
Cash and cash equivalents................... 47,431 72,364 59,855 101,068 80,295
Leases and lease securitization residual
interest................................. -- 29,034 53,782 42,192 80,913
Total assets................................ 405,063 549,013 679,592 704,597 860,017
Notes payable............................... 136,047 171,525 155,795 178,804 155,566
Reserve for claim losses.................... 146,094 187,245 190,747 197,988 215,611
Stockholders' equity........................ 77,947 124,435 231,830 228,432 354,768
</TABLE>
6
<PAGE> 8
DESCRIPTION OF DEBT SECURITIES
Fidelity may issue Debt Securities either separately, or together with, or upon
the conversion of or in exchange for, other securities. The Debt Securities will
be issued under an Indenture between us and the Trustee named in the applicable
prospectus supplement. As used in this prospectus, "Debt Securities" means the
debentures, notes, bonds and other evidences of indebtedness that we issue and
the Trustee authenticates and delivers under the Indenture. The prospectus
supplement will describe the specific terms of the Debt Securities offered
through that prospectus supplement and any general terms outlined in this
section that will not apply to those Debt Securities.
We have summarized certain terms and provisions of the Indenture in this
section. The summary is not complete. We have also filed the form of the
Indenture as an exhibit to the registration statement. You should read the form
of Indenture for additional information before you buy any Debt Securities.
Capitalized terms used but not defined in this summary have the meanings
specified in the Indenture.
GENERAL
The Debt Securities will be our unsecured obligations and will be convertible
into our shares of Common Stock. The Indenture does not limit the amount of Debt
Securities that we may issue and permits us to issue Debt Securities from time
to time. Debt Securities issued under the Indenture will be issued as part of a
series that has been established by us pursuant to the Indenture. Unless a
prospectus supplement relating to Debt Securities states otherwise, the
Indenture and the terms of the Debt Securities will not contain any covenants
designed to afford holders of any Debt Securities protection in a highly
leveraged or other transaction involving us that may adversely affect holders of
the Debt Securities.
The indebtedness represented by Debt Securities will be subordinated in right of
payment to the prior payment in full of all Senior Debt (as defined below) of
Fidelity. See "-- Subordination." In addition, because we are a holding company
that conducts our operations through our subsidiaries, holders of Debt
Securities will generally have a junior position to claims of creditors of our
subsidiaries, including trade creditors, debtholders, secured creditors, taxing
authorities, beneficiaries under title insurance policies, and guarantee
holders. As of September 30, 1998, our subsidiaries had approximately $58.1
million of outstanding debt. Moreover, our ability to pay principal and interest
on the Debt Securities is, to a large extent, dependent upon our receiving
dividends, interest or other amounts from our subsidiaries. Certain of our
principal operating subsidiaries are subject to insurance regulations that
require minimum amounts of statutory surplus, which may restrict the amount of
funds which are available to us from such subsidiaries, or require prior
approval from the regulatory agency before those subsidiaries can pay us any
extraordinary dividends.
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<PAGE> 9
TERMS OF DEBT SECURITIES
A prospectus supplement relating to a series of Debt Securities being offered
will include specific terms relating to the offering. These terms will include
some or all of the following:
- - the title and type of the Debt Securities;
- - any limit on the total principal amount of the Debt Securities;
- - the price at which the Debt Securities will be issued;
- - the date or dates on which the principal of and premium, if any, on the Debt
Securities will be payable;
- - the maturity date of the Debt Securities;
- - if the Debt Securities will bear interest, the interest rate on the Debt
Securities, the date from which interest will accrue, the record and interest
payment dates for the Debt Securities, the first interest payment date, and
any circumstances under which we may defer interest payments;
- - the terms and conditions upon which the Debt Securities will be convertible
into Common Stock or other securities, including the initial conversion price
and any adjustments thereto;
- - the subordination terms applicable to the Debt Securities;
- - any optional redemption provisions that would permit us or the Holders (as
defined below) of Debt Securities to elect redemption or repayment of the Debt
Securities prior to their final maturity including upon a change of control of
Fidelity or other extraordinary event;
- - the currency or currencies in which the Debt Securities will be denominated
and payable, if other than U.S. dollars;
- - any provisions that would permit us or the Holders of the Debt Securities to
elect the currency or currencies in which the Debt Securities are paid;
- - whether the provisions described under the heading "Defeasance" below apply to
the Debt Securities;
- - any changes to or additional Events of Default or covenants;
- - whether the Debt Securities will be issued in whole or in part in the form of
Global Securities and, if so, the Depositary for those Global Securities (a
"Global Security" means a Debt Security that we issue in accordance with the
Indenture to represent all or part of a series of Debt Securities);
- - any special tax implications of the Debt Securities; and
- - any other terms of the Debt Securities.
A "Holder," with respect to a Registered Security, means the Person in whose
name such Registered Security is registered in the Security Register.
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<PAGE> 10
PAYMENT; TRANSFER
In the applicable prospectus supplement, we will designate a Place of Payment
where you can receive payment of the principal of and any premium and interest
on the Debt Securities or transfer the Debt Securities. Even though we will
designate a Place of Payment, we may elect to pay any interest on the Debt
Securities by mailing a check to the Person listed as the owner of the Debt
Securities in the Security Register or by wire transfer to an account designated
by that Person in writing not less than ten days before the date of the interest
payment. There will be no service charge for any registration of transfer or
exchange of the Debt Securities, but we may require you to pay any tax or other
governmental charge payable in connection with a transfer or exchange of the
Debt Securities.
DENOMINATIONS
Unless the prospectus supplement states otherwise, the Debt Securities will be
issued only in registered form, without coupons, in denominations of $1,000 each
or multiples of $1,000.
ORIGINAL ISSUE DISCOUNT
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities and sold at a substantial discount below their stated principal
amount. If a Debt Security is an "Original Issue Discount Security," that means
that an amount less than the principal amount of the Debt Security will be due
and payable upon a declaration of acceleration of the maturity of the Debt
Security pursuant to the Indenture. The applicable prospectus supplement will
describe the federal income tax consequences and other special factors which
should be considered prior to purchasing any Original Issue Discount Securities.
CONVERSION
The applicable prospectus supplement relating to a series of Debt Securities
will describe the terms on which those Debt Securities are convertible into
shares of Common Stock or other Securities.
The applicable prospectus supplement will also specify the price at which Debt
Securities are convertible, the date before any day fixed for redemption of the
Debt Securities at which the conversion rights will expire, and the events or
circumstances which will result in adjustments to the conversion price, and, as
applicable, the formulae for determining the adjusted conversion price. Events
which may result in a conversion price adjustment include:
- - stock dividends, stock splits and similar changes to Fidelity's Common Stock;
- - other distributions of debt as assets to holders of Common Stock;
- - extraordinary cash dividends on the Common Stock;
- - reclassifications of the Common Stock; and
- - mergers, consolidations or sales of substantially all of Fidelity's assets in
which holders of Common Stock are entitled to receive stock, other securities,
or other property or assets.
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<PAGE> 11
The conversion price may also be subject to reduction, at Fidelity's option, in
certain circumstances to be described in the applicable prospectus supplement.
SUBORDINATION
Under the Indenture, payment of the principal, interest and any premium on the
Debt Securities will generally be subordinated and junior in right of payment to
the prior payment in full of all Senior Debt. The Indenture provides that no
payment or principal, interest or any premium on the Debt Securities may be made
in the event:
- - we fail to pay the principal, interest, any premium or any other amounts on
any Senior Debt when due; or
- - of any insolvency, bankruptcy or similar proceeding involving Fidelity or its
property.
The Indenture will not limit the amount of Senior Debt that we may incur.
"Senior Debt" will be defined to include all notes or other evidences of
indebtedness, including guarantees of Fidelity for money borrowed by Fidelity,
not expressed to be subordinate or junior in right of payment to any other
indebtedness of Fidelity.
CONSOLIDATION, MERGER OR SALE
The Indenture generally permits a consolidation or merger between us and another
corporation. It also permits the sale or transfer by us of all or substantially
all of our property and assets and the purchase by us of all or substantially
all of the property and assets of another corporation. These transactions are
permitted if:
- - the resulting or acquiring corporation (if other than us) assumes all of our
responsibilities and liabilities under the Indenture, including the payment of
all amounts due on the Debt Securities and performance of the covenants in the
Indenture; and
- - immediately after the transaction, no Event of Default exists.
We are not required by the Indenture to comply with those provisions if we sell
all of our property and assets to another corporation if, immediately after the
sale, that corporation is a subsidiary in which we own all of the capital stock.
If we consolidate or merge with or into any other corporation or sell all or
substantially all of our assets according to the terms and conditions of the
Indenture, the resulting or acquiring corporation will be substituted for us in
the Indenture with the same effect as if it had been an original party to the
Indenture. As a result, such successor corporation may exercise our rights and
powers under the Indenture, in our name or in its own name, and we will be
released from all our liabilities and obligations under the Indenture and under
the Debt Securities.
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<PAGE> 12
MODIFICATION AND WAIVER
Under the Indenture, certain of our rights and obligations and certain of the
rights of Holders of the Debt Securities may be modified or amended with the
consent of the Holders of a majority in aggregate principal amount of the
outstanding Debt Securities of each series of Debt Securities affected by the
modification or amendment. The following modifications and amendments will not
be effective against any Holder without its consent:
- - a change in the stated maturity date of any payment of principal or interest;
- - a reduction in certain payments due on the Debt Securities;
- - make any change that adversely affects the rights of the holders of the Debt
Securities to convert them into Common Stock;
- - a change in the place of payment or currency in which any payment on the Debt
Securities is payable;
- - a limitation of a Holder's right to sue us for the enforcement of certain
payments due on the Debt Securities;
- - a reduction in the percentage of outstanding Debt Securities required to
consent to a modification or amendment of the Indenture;
- - a limitation of a Holder's right, if any, to repayment of Debt Securities at
such Holder's option; and
- - a modification of any of the foregoing requirements or a reduction in the
percentage of outstanding Debt Securities required to waive compliance with
certain provisions of the Indenture or to waive certain defaults under the
Indenture.
Under the Indenture, the Holders of a majority in aggregate principal amount of
the Outstanding Debt Securities of any series of Debt Securities may, on behalf
of all Holders of that series:
- - waive compliance by us with certain restrictive covenants of the Indenture;
and
- - waive any past default under the Indenture, except: a default in the payment
of the principal of or any premium or interest on any Debt Securities of that
series, or a default under any provision of the Indenture which itself cannot
be modified or amended without the consent of the Holders of each outstanding
Debt Security of that series.
EVENTS OF DEFAULT
"Event of Default," when used in the Indenture with respect to any series of
Debt Securities, means any of the following:
- - failure to pay interest on any Debt Security of that series for 30 days after
the payment is due;
- - failure to pay the principal of or any premium on any Debt Security of that
series when due;
- - failure to perform any other covenant in the Indenture that applies to Debt
Securities of that series for 90 days after we have received written notice of
the failure to perform in the manner specified in the Indenture;
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<PAGE> 13
- - failure to make any required payment under any instrument for money borrowed
and the acceleration of an amount of at least $5 million in respect thereof;
- - certain events in bankruptcy, insolvency or reorganization; or
- - any other Event of Default that may be specified for the Debt Securities of
that series when that series is created.
If an Event of Default for any series of Debt Securities occurs and continues,
the Trustee or the Holders of at least 25% in aggregate principal amount of the
outstanding Debt Securities of that series may declare the entire principal of
all the Debt Securities of that series to be due and payable immediately. If
such a declaration occurs, the Holders of a majority of the aggregate principal
amount of the outstanding Debt Securities of that series can, subject to certain
conditions, rescind the declaration.
The prospectus supplement relating to each series of Debt Securities which are
Original Issue Discount Securities will describe the particular provisions that
relate to the acceleration of maturity of a portion of the principal amount of
such series when an Event of Default occurs and continues.
An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for any other series of Debt
Securities issued under the Indenture. The Indenture requires us to file an
Officers' Certificate with the Trustee each year that states that certain
defaults do not exist under the terms of the Indenture. The Trustee may withhold
notice to the Holders of Debt Securities of any default (except defaults in the
payment of principal, premium, interest or any sinking fund installment) if it
considers such withholding of notice to be in the best interests of the Holders.
Other than its duties in the case of a default, a Trustee is not obligated to
exercise any of its rights or powers under the Indenture at the request, order
or direction of any Holders, unless the Holders offer the Trustee reasonable
indemnification. If reasonable indemnification is provided, then, subject to
certain other rights of the Trustee, the Holders of a majority in principal
amount of the outstanding Debt Securities of any series may, with respect to the
Debt Securities of that series, direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee.
DEFEASANCE
At the time that we establish a series of Debt Securities under the Indenture,
we can provide that the Debt Securities of that series are subject to the
defeasance and discharge provisions of the Indenture. A defeasance provision
enables us to terminate our obligation to pay the Debt Securities if we provide
for payment through another source. In particular, these provisions would
release us from our obligations to make payments on the Debt Securities of that
series and to comply with the other covenants (except with respect to conversion
provisions) if we deposit with the Trustee, in trust, sufficient money or
Government Obligations (as defined below) to pay the principal, interest, any
premium and any other sums due on the Debt Securities of that series on the
dates such payments are due under the Indenture and the terms of the Debt
Securities. As used above, "Government Obligations" mean:
- - securities of the same government which issued the currency in which the
series of Debt Securities are denominated and in which interest is payable; or
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- - securities of government agencies backed by the full faith and credit of such
government.
In the event that we deposit funds in trust and discharge our obligations under
a series of Debt Securities as described above, then:
- - the Indenture will no longer apply to the Debt Securities of that series
(except for certain obligations to compensate, reimburse and indemnify the
Trustee, to register the transfer and exchange of Debt Securities, to convert
Debt Securities into Common Stock, to replace lost, stolen or mutilated Debt
Securities and to maintain paying agencies and the trust funds); and
- - Holders of Debt Securities of that series can only look to the trust fund for
payment of principal, any premium and interest on the Debt Securities of that
series.
Under federal income tax law, such deposit and discharge may be treated as an
exchange of the related Debt Securities for an interest in the trust mentioned
above. No such defeasance shall be permitted unless prior thereto, the Trustee
shall have received an opinion of counsel to the effect that such action will
not have any federal income tax consequences to the Holders.
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DESCRIPTION OF PREFERRED STOCK
Fidelity may issue Preferred Stock either separately, or together with, or upon
the conversion of or in exchange for, other securities. A prospectus supplement
will describe the specific terms of the series of the Preferred Stock offered
through that prospectus supplement and any general terms outlined in this
section that will not apply to those shares of Preferred Stock.
We have summarized certain terms and provisions of the Preferred Stock in this
section. The summary is not complete. We have also filed or incorporated by
reference our Certificate of Incorporation, as amended, and the form of
Certificate of Designation, Preferences and Rights of Preferred Stock
("Certificate of Designation") as exhibits to the registration statement. You
should read our Certificate of Incorporation, as amended, and the Certificate of
Designation relating to the applicable series of the Preferred Stock for
additional information before you buy any Preferred Stock.
We may elect to offer Depositary Shares representing a fractional interest in
shares of Preferred Stock deposited with a Depositary. For information about the
Depositary Shares, please see "Description of Depositary Shares" below.
GENERAL
Pursuant to our Certificate of Incorporation, our Board of Directors has the
authority, without further stockholder action, to issue a maximum of 3,000,000
shares of Preferred Stock. As of October 15, 1998, no shares of Preferred Stock
were issued or outstanding or reserved for issuance. The Board of Directors has
the authority to determine or fix the following terms with respect to shares of
any series of Preferred Stock:
- - the number of shares and designation or title of the shares;
- - dividend rights;
- - whether and upon what terms the shares will be redeemable;
- - the rights of the holders upon our dissolution or upon the distribution of our
assets;
- - whether and upon what terms the shares will have a purchase, retirement or
sinking fund;
- - the terms and conditions upon which the shares will be convertible into Common
Stock or other securities, including the initial conversion rate and any
adjustments thereto;
- - the voting rights, if any, which will apply; and
- - any other preferences, rights, limitations or restrictions of the series.
If we purchase, redeem or convert shares of Preferred Stock, we will retire and
cancel them and restore them to the status of authorized but unissued shares of
Preferred Stock. Such shares will not be part of any particular series of
Preferred Stock and may be reissued by us.
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The Preferred Stock will have the dividend, liquidation, redemption, voting and
conversion rights described in this section unless the applicable prospectus
supplement provides otherwise. You should read the prospectus supplement
relating to the particular series of the Preferred Stock for specific terms,
including:
- - the title and liquidation preference of the Preferred Stock and the number of
shares offered;
- - the initial public offering price at which we will issue the Preferred Stock;
- - the dividend rate or rates (or method of calculation), the dividend periods,
the dates on which dividends will be payable and whether the dividends will be
cumulative or noncumulative and, if cumulative, the dates from which the
dividends will start to cumulate;
- - any redemption or sinking fund provisions;
- - the conversion provisions;
- - whether we have elected to offer Depositary Shares as described under
"Description of Depositary Shares" below; and
- - any additional dividend, liquidation, redemption, sinking fund and other
rights, preferences, privileges, limitations and restrictions.
When we issue shares of Preferred Stock, they will be fully paid and
nonassessable (i.e., the full purchase price for the outstanding Preferred Stock
will have been paid and the holders of such shares of Preferred Stock will not
be assessed any additional monies for such Preferred Stock). Unless the
applicable prospectus supplement specifies otherwise:
- - each series of the Preferred Stock will rank equally in all respects with the
outstanding shares of each other series of the Preferred Stock;
- - the Preferred Stock will have no preemptive rights to subscribe for any
additional securities which we may issue in the future (i.e., the holders of
Preferred Stock will have no right, as holders of Preferred Stock, to buy any
portion of those issued securities); and
- - Continental Stock Transfer and Trust Company will be the transfer agent and
registrar for the Preferred Stock and any Depositary Shares.
DIVIDENDS
The holders of the Preferred Stock of each series will be entitled to receive
cash dividends, if declared by our Board of Directors or its duly authorized
committee, out of our assets that we can legally use to pay dividends. The
prospectus supplement relating to a particular series of Preferred Stock will
set forth the dividend rates and dates on which dividends will be payable. The
rates may be fixed or variable or both. If the dividend rate is variable, the
applicable prospectus supplement will describe the formula used for determining
the dividend rate for each dividend period. We will pay dividends to the holders
of record as they appear on our stock books on the record dates fixed by our
Board of Directors or its duly authorized committee.
The applicable prospectus supplement will also state whether the dividends on
any series of the Preferred Stock are cumulative or noncumulative. If our Board
of Directors does not
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declare a dividend payable on a dividend payment date on any noncumulative
series of Preferred Stock, then the holders of that series will not be entitled
to receive a dividend for that dividend period and we will not be obligated to
pay the dividend for that dividend period even if the Board declares a dividend
on that series payable in the future.
Our Board will not declare and pay a dividend on any of our stock ranking, as to
dividends, equal with or junior to the Preferred Stock unless full dividends on
the Preferred Stock have been declared and paid (or declared and sufficient
money is set aside for payment). Until full dividends are paid (or declared and
payment is set aside) on Preferred Stock ranking equal as to dividends, then:
- - we will declare any dividends pro rata among the Preferred Stock of each
series and any Preferred Stock ranking equal to the Preferred Stock as to
dividends (i.e., the dividends we declare per share on each series of such
Preferred Stock will bear the same relationship to each other that the full
accrued dividends per share on each such series of the Preferred Stock bear to
each other);
- - other than such pro rata dividends, we will not declare or pay any dividends
or declare or make any distributions upon any security ranking junior to or
equal with the Preferred Stock as to dividends or upon liquidation (except
dividends or distributions paid for with securities ranking junior to the
Preferred Stock as to dividends and upon liquidation); and
- - we will not redeem, purchase or otherwise acquire (or set aside money for a
sinking fund for) any securities ranking junior to or equal with the Preferred
Stock as to dividends or upon liquidation (except by conversion into or
exchange for stock junior to the Preferred Shares as to dividends and upon
liquidation).
We will not owe any interest, or any money in lieu of interest, on any dividend
payment(s) on any series of the Preferred Stock which may be past due.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or in part, at our
option, and may be subject to mandatory redemption pursuant to a sinking fund or
otherwise, as described in the applicable prospectus supplement. Redeemed
Preferred Stock will become authorized but unissued shares of Preferred Stock
that we may issue in the future.
If a series of the Preferred Stock is subject to mandatory redemption, the
applicable prospectus supplement will specify the number of shares that we will
redeem each year and the redemption price. If shares of Preferred Stock are
redeemed, we will pay all accrued and unpaid dividends on those shares of
Preferred Stock up to, but excluding, the redemption date. The prospectus
supplement will also specify whether the redemption price will be paid in cash
or other property. If (1) we are only permitted to pay the redemption price for
a series of Preferred Stock from the proceeds of a capital stock issuance and
(2) the proceeds from the issuance are insufficient or no such issuance has
occurred, then the terms of that series may provide that the Preferred Stock
will automatically and mandatorily be converted into such capital stock.
If fewer than all of the outstanding shares of any series of the Preferred Stock
are to be redeemed, our Board of Directors will determine the number of shares
to be redeemed. We will redeem the shares pro rata from the holders of record in
proportion to the number of shares held by them (with adjustments to avoid
redemption of fractional shares).
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Even though the terms of a series of Preferred Stock may permit redemption of
shares of Preferred Stock in whole or in part, if any dividends, including
accumulated dividends, on that series are past due:
- - we will not redeem any Preferred Stock of that series unless we simultaneously
redeem all outstanding shares of Preferred Stock of that series; and
- - we will not purchase or otherwise acquire any Preferred Stock of that series.
The prohibition discussed in the prior sentence will not prohibit us from
purchasing or acquiring Preferred Stock of that series pursuant to a purchase or
exchange offer if we make the offer on the same terms to all holders of that
series.
Unless the applicable prospectus supplement specifies otherwise, we will give
notice of a redemption by mailing a notice to each record holder of the shares
to be redeemed, between 30 to 60 days prior to the date fixed for redemption
(unless we issue Depositary Shares representing interests in Preferred Shares,
in which case we will send a notice to the Depositary between 40 to 70 days
prior to the date fixed for redemption). We will mail the notices to the
holders' addresses as they appear on our stock records. Each notice will state:
- - the redemption date;
- - the number of shares and the series of the Preferred Stock to be redeemed;
- - the redemption price;
- - the place or places where holders can surrender the certificates for the
Preferred Stock for payment of the redemption price;
- - that dividends on the shares to be redeemed will cease to accrue on the
redemption date; and
- - the date when the holders' conversion rights, if any, will terminate.
If we redeem fewer than all shares of any series of the Preferred Stock held by
any holder, we will also specify the number of shares to be redeemed from the
holder in the notice.
If we have given notice of the redemption and have provided the funds for the
payment of the redemption price, then beginning on the redemption date:
- - the dividends on the Preferred Stock called for redemption will no longer
accrue;
- - such shares will no longer be considered outstanding; and
- - the holders will no longer have any rights as stockholders except to receive
the redemption price.
When the holder properly surrenders the redeemed shares, the redemption price
will be paid out of the funds provided by us. If we redeem fewer than all of the
shares represented by any certificate, we will issue a new certificate
representing the unredeemed shares without cost to the holder.
In the event that a redemption described above is deemed to be a "tender offer"
within the meaning of Rule 14e-1 under the Exchange Act, we will comply with all
applicable provisions of the Exchange Act.
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CONVERSION
The applicable prospectus supplement relating to a series of convertible
Preferred Stock will describe the terms on which shares of that series are
convertible into shares of Common Stock or other securities, which may include a
different series of Preferred Stock. The applicable prospectus supplement will
also specify the price at which the shares of Preferred Stock are convertible,
the date before any day fixed for redemption of the Preferred Stock at which the
conversion rights will expire, and the events or circumstances which will result
in adjustments to the conversion price, and, as applicable, the formulae for
determining the adjusted conversion price. Events which may result in a
conversion price adjustment include:
- - stock dividends, stock splits and similar changes to Fidelity's Common Stock;
- - other distributions of debt as assets to holders of Common Stock;
- - extraordinary cash dividends on the Common Stock;
- - reclassifications of the Common Stock; and
- - mergers, consolidations or sales of substantially all of Fidelity's assets in
which holders of Common Stock are entitled to receive stock, other securities,
or other property or assets.
The conversion price may also be subject to reduction, at Fidelity's option, in
certain circumstances to be described in the applicable prospectus supplement.
RIGHTS UPON LIQUIDATION
Unless the applicable prospectus states otherwise, if we voluntarily or
involuntarily liquidate, dissolve or wind up our business, the holders of shares
of each series of the Preferred Stock will be entitled to receive:
- - liquidation distributions in the amount stated in the applicable prospectus
supplement; and
- - all accrued and unpaid dividends (whether or not earned or declared).
We will pay these amounts to the holders of shares of each series of the
Preferred Stock, and all amounts owing on any Preferred Stock ranking equally
with such series of Preferred Stock as to distributions upon liquidation, out of
our assets available for distribution to stockholders before any distribution is
made to holders of any securities ranking junior to the series of Preferred
Stock upon liquidation.
The sale of all or substantially all of our property and assets, our merger into
or consolidation with any other corporation or the merger of any other
corporation into us will not be considered a dissolution, liquidation or winding
up of our business.
If (1) we voluntarily or involuntarily liquidate, dissolve or wind up our
business and (2) the assets available for distribution to the holders of the
Preferred Stock of any series and any other shares of our stock ranking equal
with such series as to any such distribution are insufficient to pay all amounts
to which the holders are entitled, then we will only make pro rata distributions
to the holders of all shares ranking equal as to distributions upon dissolution,
liquidation or winding up of our business (i.e., the distributions we pay to the
holders of all shares ranking equal as to distributions upon dissolution,
liquidation or
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<PAGE> 20
winding up of our business will bear the same relationship to each other that
the full distributable amounts for which such holders are respectively entitled
upon such dissolution, liquidation or winding up of our business bear to each
other).
After we pay the full amount of the liquidation distribution to which the
holders of a series of the Preferred Stock are entitled, such holders will have
no right or claim to any of our remaining assets.
VOTING RIGHTS
Except as described in this section or in the applicable prospectus supplement,
or except as expressly required by applicable law, the holders of the Preferred
Stock will not be entitled to vote. If the holders of a series of Preferred
Stock are entitled to vote and the applicable prospectus supplement does not
state otherwise, then each share of Preferred Stock will be entitled to one
vote.
As more fully described under "Description of Depositary Shares" below, if we
elect to provide for the issuance of Depositary Shares representing fractional
interests in shares of Preferred Stock, the holders of each Depositary Share
will be entitled to a fraction of a vote.
For any series of Preferred Stock having one vote per share, the voting power of
the series, on matters on which holders of such series and holders of any other
series of Preferred Stock are entitled to vote as a single class, will solely
depend on the total number of shares in such series (not the aggregate
liquidation preference or initial offering price).
Unless we receive the consent of the holders of an outstanding series of
Preferred Stock and the outstanding shares of all other series of Preferred
Stock which (1) rank equal with such series either as to dividends or the
distribution of assets upon liquidation, dissolution or winding up of our
business and (2) have voting rights that are exercisable and that are similar to
those of such series, we will not:
- - authorize, create or issue, or increase the authorized or issued amount of,
any class or series of stock ranking prior to such outstanding Preferred Stock
with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up of our business; or
- - amend, alter or repeal, whether by merger, consolidation or otherwise, the
provisions of our Certificate of Incorporation or of the resolutions contained
in a Certificate of Designation creating such series of the Preferred Stock so
as to materially and adversely affect any right, preference, privilege or
voting power of such outstanding Preferred Stock.
This consent must be given by the holders of at least two-thirds of all such
outstanding Preferred Stock described in the preceding sentence, voting together
as a single class. We will not be required to obtain this consent with respect
to the actions listed in the second bullet point above, however, if we only (1)
increase the amount of the authorized Preferred Stock, (2) create and issue
another series of Preferred Stock, or (3) increase the amount of authorized
shares of any series of Preferred Stock, if such Preferred Stock in each case
ranks equal with or junior to the Preferred Stock with respect to the payment of
dividends and the distribution of assets upon liquidation, dissolution or
winding up of our business.
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DESCRIPTION OF DEPOSITARY SHARES
Fidelity may issue Depositary Shares representing a fractional interest (to be
specified in the applicable prospectus supplement) in shares of Preferred Stock.
The prospectus supplement will describe the specific terms of the Depositary
Shares offered through that prospectus supplement and any general terms outlined
in this section that will not apply to those Depositary Shares.
We have summarized certain terms and provisions of the Deposit Agreement, the
Depositary Shares and the Depositary Receipts in this section. The summary is
not complete. We have also filed the form of Deposit Agreement, including the
form of Depositary Receipt, as an exhibit to the registration statement. You
should read the forms of Deposit Agreement and Depositary Receipt relating to a
series of Preferred Stock for additional information before you buy any
Depositary Shares that represent Preferred Stock of such series.
GENERAL
We may offer fractional interests in Preferred Stock, rather than full shares of
Preferred Stock. If we do, we will provide for the issuance by a Depositary (as
defined below) to the public of receipts for depositary shares ("Depositary
Shares"), each of which will represent a fractional interest in a share of a
particular series of Preferred Stock.
The stock of any series of Preferred Stock underlying the Depositary Shares will
be deposited under a separate deposit agreement (the "Deposit Agreement")
between us and a bank or trust company having its principal office in the United
States and having a combined capital and surplus of at least $50 million (the
"Depositary"). We will name the Depositary in the applicable prospectus
supplement. Subject to the terms of the Deposit Agreement, each owner of a
Depositary Share will have a fractional interest in all the rights and
preferences of the Preferred Stock underlying such Depositary Shares. Those
rights include any dividend, voting, redemption, conversion and liquidation
rights.
The Depositary Shares will be evidenced by depositary receipts issued under the
Deposit Agreement (the "Depositary Receipts"). If you purchase fractional
interests in shares of the related series of Preferred Stock, you will receive
Depositary Receipts as described in the applicable prospectus supplement. While
the final Depositary Receipts are being prepared, we may order the Depositary to
issue temporary Depositary Receipts substantially identical to the final
Depositary Receipts although not in final form. The holders of the temporary
Depositary Receipts will be entitled to the same rights as if they held the
Depositary Receipts in final form. Holders of the temporary Depositary Receipts
can exchange them for the final Depositary Receipts at our expense.
If you surrender Depositary Receipts at the principal office of the Depositary
(unless the related Depositary Shares have previously been called for
redemption), you are entitled to receive at such office the number of shares of
Preferred Stock and any money or other property represented by such Depositary
Shares. We will not issue partial shares of Preferred Stock. If you deliver
Depositary Receipts evidencing a number of Depositary Shares that represent more
than a whole number of shares of Preferred Stock, the Depositary will issue you
a new Depositary Receipt evidencing such excess number of Depositary Shares at
the same time that the shares of Preferred Stock are withdrawn. Holders of
Preferred Stock received in exchange for Depositary Shares will no longer be
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entitled to deposit such shares under the Deposit Agreement or to receive
Depositary Shares in exchange for such Preferred Stock.
DIVIDENDS AND OTHER DISTRIBUTIONS
The Depositary will distribute all cash dividends or other cash distributions
received with respect to the Preferred Stock to the record holders of Depositary
Shares representing the Preferred Stock in proportion to the number of
Depositary Shares owned by the holders on the relevant record date. The
Depositary will distribute only the amount that can be distributed without
attributing to any holder of Depositary Shares a fraction of one cent. The
balance not distributed will be added to and treated as part of the next sum
received by the Depositary for distribution to record holders of Depositary
Shares.
If there is a distribution other than in cash, the Depositary will distribute
property to the holders of Depositary Shares, unless the Depositary determines
that it is not feasible to make such distribution. If this occurs, the
Depositary may, with our approval, sell the property and distribute the net
proceeds from the sale to the holders of Depositary Shares.
The Deposit Agreement will also contain provisions relating to how any
subscription or similar rights offered by us to holders of the Preferred Stock
will be made available to the holders of Depositary Shares.
CONVERSION AND EXCHANGE
If any series of Preferred Stock underlying the Depositary Shares is subject to
conversion or exchange, the applicable prospectus supplement will describe the
rights or obligations of each record holder of Depositary Receipts to convert or
exchange the Depositary Shares.
REDEMPTION OF DEPOSITARY SHARES
If the series of the Preferred Stock underlying the Depositary Shares is subject
to redemption, the Depositary Shares will be redeemed from the redemption
proceeds, in whole or in part, of such series of the Preferred Stock held by the
Depositary. The Depositary will mail notice of redemption between 30 to 60 days
prior to the date fixed for redemption to the record holders of the Depositary
Shares to be redeemed at their addresses appearing in the Depositary's records.
The redemption price per Depositary Share will bear the same relationship to the
redemption price per share of Preferred Stock that the Depositary Share bears to
the underlying Preferred Share. Whenever we redeem Preferred Stock held by the
Depositary, the Depositary will redeem, as of the same redemption date, the
number of Depositary Shares representing the Preferred Stock redeemed. If less
than all the Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed will be selected by lot or pro rata as determined by the Depositary.
After the date fixed for redemption, the Depositary Shares called for redemption
will no longer be outstanding. When the Depositary Shares are no longer
outstanding, all rights of the holders will cease, except the right to receive
money or other property that the holders of the Depositary Shares were entitled
to receive upon such redemption. Such payments will be made when holders
surrender their Depositary Receipts to the Depositary.
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VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which the holders of the Preferred
Stock are entitled to vote, the Depositary will mail information about the
meeting contained in the notice to the record holders of the Depositary Shares
relating to such Preferred Stock. Each record holder of such Depositary Shares
on the record date (which will be the same date as the record date for the
Preferred Stock) will be entitled to instruct the Depositary as to how the
Preferred Stock underlying the holder's Depositary Shares should be voted.
The Depositary will try, if practical, to vote the number of Preferred Stock
underlying the Depositary Shares according to the instructions received. We will
agree to take all action requested by and deemed necessary by the Depositary in
order to enable the Depositary to vote the Preferred Stock in that manner. The
Depositary will not vote any Preferred Stock for which it does not receive
specific instructions from the holders of the Depositary Shares relating to such
Preferred Stock.
TAXATION
Owners of Depositary Shares will be treated for federal income tax purposes as
if they were owners of the shares of Preferred Stock represented by the
Depositary Shares. Accordingly, for federal income tax purposes they will have
the income and deductions to which they would be entitled if they were holders
of the Preferred Stock. In addition:
- - no gain or loss will be recognized for federal income tax purposes upon the
withdrawal of Preferred Stock in exchange for Depositary Shares as provided in
the Deposit Agreement;
- - the tax basis of each share of Preferred Stock to an exchanging owner of
Depositary Shares will, upon the exchange, be the same as the aggregate tax
basis of the Depositary Shares exchanged for such Preferred Stock; and
- - the holding period for the Preferred Stock, in the hands of an exchanging
owner of Depositary Shares who held the Depositary Shares as a capital asset
at the time of the exchange, will include the period that the owner held such
Depositary Shares.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may be amended by agreement between us and
the Depositary at any time. However, any amendment that materially and adversely
alters the rights of the existing holders of Depositary Shares will not be
effective unless approved by the record holders of at least a majority of the
Depositary Shares then outstanding. A Deposit Agreement may be terminated by us
or the Depositary only if:
- - all outstanding Depositary Shares relating to the Deposit Agreement have been
redeemed; or
- - there has been a final distribution on the Preferred Stock of the relevant
series in connection with our liquidation, dissolution or winding up of our
business and the distribution has been distributed to the holders of the
related Depositary Shares.
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CHARGES OF DEPOSITARY
We will pay all transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. We will pay associated
charges of the Depositary for the initial deposit of the Preferred Stock and any
redemption of the Preferred Stock. Holders of Depositary Shares will pay
transfer and other taxes and governmental charges and any other charges that are
stated to be their responsibility in the Deposit Agreement.
MISCELLANEOUS
We will forward to the holders of Depositary Shares all reports and
communications that we must furnish to the holders of the Preferred Stock.
Neither the Depositary nor we will be liable if the Depositary is prevented or
delayed by law or any circumstance beyond its control in performing its
obligations under the Deposit Agreement. Our obligations and the Depositary's
obligations under the Deposit Agreement will be limited to performance in good
faith of duties set forth in the Deposit Agreement. Neither the Depositary nor
we will be obligated to prosecute or defend any legal proceeding connected with
any Depositary Shares or Preferred Stock unless satisfactory indemnity is
furnished to us and/or the Depositary. We and the Depositary may rely upon
written advice of counsel or accountants, or information provided by persons
presenting Preferred Stock for deposit, holders of Depositary Shares or other
persons believed to be competent and on documents believed to be genuine.
RESIGNATION AND REMOVAL OF DEPOSITARY
The Depositary may resign at any time by delivering notice to us. We may also
remove the Depositary at any time. Resignations or removals will take effect
upon the appointment of a successor depositary and its acceptance of the
appointment. The successor depositary must be appointed within 60 days after
delivery of the notice of resignation or removal and must be a bank or trust
company having its principal office in the United States and having a combined
capital and surplus of at least $50 million.
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DESCRIPTION OF COMMON STOCK
Fidelity may issue shares of Common Stock. A prospectus supplement will describe
the specific terms of the Common Stock offered through that prospectus
supplement and any general terms outlined in this section that will not apply to
that Common Stock.
We have summarized certain terms and provisions of the Common Stock in this
section. The summary is not complete. We have also incorporated by reference our
Certificate of Incorporation, as amended, and our bylaws, as amended, as
exhibits to the registration statement. You should read our Certificate of
Incorporation and our bylaws for additional information before you buy any
Common Stock.
GENERAL
Stock Outstanding. As of November 30, 1998, our authorized Common Stock was
50,000,000 shares, of which 26,195,703 shares were issued and outstanding.
Payment of Dividends. Holders of Common Stock may receive dividends when
declared by our Board of Directors out of our funds that we can legally use to
pay dividends. We may pay dividends in cash, stock or other property. In certain
cases, holders of Common Stock may not receive dividends until we have satisfied
our obligations to any holders of outstanding Preferred Stock. Our ability to
pay dividends may also be restricted by loan agreements, regulatory
restrictions, or other transactions that we enter into from time to time.
Voting Rights. Holders of Common Stock have the exclusive power to vote on all
matters presented to our stockholders unless Delaware law or the certificate of
designation for an outstanding series of Preferred Stock gives the holders of
that Preferred Stock the right to vote on certain matters. Each holder of Common
Stock is entitled to one vote per share. Holders of Common Stock have no
cumulative voting rights for the election of directors (i.e., a holder of a
single share of Common Stock cannot cast more than one vote for each position to
be filled on our Board of Directors).
Rights Upon Liquidation; No Preemptive or Preferred Rights. If we voluntarily or
involuntarily liquidate, dissolve or wind up our business, holders of Common
Stock will receive pro rata, according to shares held by them, any remaining
assets legally distributable to our stockholders after we have provided for any
liquidation preference for outstanding shares of Preferred Stock. When we issue
securities in the future, holders of Common Stock have no preemptive rights
(i.e., the holders of Common Stock have no right, as holders of Common Stock, to
buy any portion of those issued securities). Holders of Common Stock have no
preferences, conversion or exchange rights.
Listed on NYSE. Our outstanding shares of Common Stock are listed on the New
York Stock Exchange under the symbol "FNF." Continental Stock Transfer and Trust
Company serves as the transfer agent and registrar for the Common Stock.
Fully Paid. The outstanding shares of Common Stock are fully paid and
nonassessable (i.e., the full purchase price for the outstanding shares of
Common Stock has been paid and the holders of such shares will not be assessed
any additional monies for such shares). Any additional Common Stock that we may
issue in the future pursuant to an offering under this prospectus or upon the
conversion or exercise of other securities offered under this prospectus will
also be fully paid and nonassessable.
24
<PAGE> 26
ANTI-TAKEOVER PROVISIONS
Certain provisions of our Certificate of Incorporation may make it less likely
that our management would be changed or someone would acquire voting control of
Fidelity without our Board's consent. These provisions may delay, deter or
prevent tender offers or takeover attempts that stockholders may believe are in
their best interests, including tender offers or attempts that might allow
stockholders to receive premiums over the market price of their Common Stock.
Fair Price Provision; Transactions With Interested Stockholders. Our Certificate
of Incorporation prohibits certain business combinations between Fidelity and
interested stockholders, which include direct and indirect owners of 10% or more
of our voting stock unless those transactions are approved by holders of at
least 66.67% of our outstanding voting stock not owned by any interested
stockholders, voting together as a single class. This 66.67% approval is in
addition to any approval required by law. Business combinations requiring the
66.67% approval include the following transactions, among others:
- - any merger or consolidation with an interested stockholder or a corporation
affiliated with an interested stockholder;
- - any sale, lease, pledge, exchange, mortgage or other transfer or disposition
of our assets valued at 10% or more of the fair market value of our
consolidated assets to an interested stockholder or person or entity
affiliated with an interested stockholder, other than in the ordinary course
of business;
- - the issuance, pledge or transfer by us of any of our securities, or the
securities of one or more of our subsidiaries to an interested stockholder in
exchange for consideration with a value of 10% or more of the fair market
value of our consolidated assets, unless such person is acting as an
underwriter for such securities;
- - any sale, lease, pledge, exchange, mortgage or other transfer or disposition
of the assets of any interested stockholder or any person or entity affiliated
with an interested stockholder with a value of 10% or more of the fair market
value of our consolidated assets to us or one or more of our subsidiaries,
other than in the ordinary course of business;
- - the adoption of any plan proposed by or on behalf of an interested stockholder
or a person or entity affiliated with an interested stockholder to liquidate
or dissolve Fidelity; and
- - any transaction that increases the voting power or proportionate share of any
class of our equity or convertible securities owned directly or indirectly by
an interested stockholder or a person or entity affiliated with an interested
stockholder.
Stockholders do not need to approve a business combination under our Certificate
of Incorporation if 66.67% of the "continuing directors" approve the business
combination. Continuing directors are those directors, other than the interested
stockholder or any representative or affiliate of the interested stockholder,
(1) who were members of the Board of Directors before the interested stockholder
involved in the business combination became an interested stockholder or (2)
whose election or nomination was approved by a majority of such directors.
25
<PAGE> 27
Stockholders also do not need to approve a business combination under our
Certificate of Incorporation that meets certain conditions specified in our
Certificate of Incorporation. These conditions include, among other things, the
following:
- - the price received by each stockholder is at least as high as the highest
price paid for our shares by the interested stockholder in becoming an
interested stockholder in the two years before the business combination is
announced, and also is at least as high as the higher of the fair market value
of our shares when the interested stockholder became an interested stockholder
or when the business combination was announced;
- - after the interested stockholder became an interested stockholder and prior to
completion of the business combination, we have not failed to declare and pay
any quarterly dividends, unless approved by 66.67% of the continuing
directors;
- - the interested stockholder has not acquired any additional shares of our stock
after becoming an interested stockholder;
- - after the interested stockholder became an interested stockholder, such person
has not directly or indirectly received the benefit of any loans, advances,
guarantees, pledges or other financial assistance provided by Fidelity; and
- - a proxy or information statement describing the proposed business combination
is mailed to all holders of our stock at least 30 days before the business
combination is completed.
Holders of at least 66.67% of our outstanding voting stock not owned by any
interested stockholders, voting together as one class, must approve a proposal
to amend or repeal, or adopt provisions inconsistent with the provisions of our
Certificate of Incorporation described above unless such proposal is approved by
66.67% of the continuing directors, in which case holders of at least a majority
of the outstanding voting stock entitled to vote may approve such a proposal.
Preferred Stock May be Issued Without Stockholder Approval. Our Board of
Directors can at any time, under our Certificate of Incorporation and without
stockholder approval, issue one or more new series of Preferred Stock. In some
cases, the issuance of Preferred Stock without stockholder approval could
discourage or make more difficult attempts to take control of Fidelity through a
merger, tender offer, proxy contest or otherwise. Preferred Stock with special
voting rights or other features issued to persons favoring our management could
stop a takeover by preventing the person trying to take control of Fidelity from
acquiring enough voting shares necessary to take control.
Classified Board of Directors. Members of our Board of Directors are divided
into three classes and serve staggered three-year terms under our Certificate of
Incorporation. This means that only approximately one-third of our directors are
elected at each annual meeting of stockholders and that it would take two years
to replace a majority of the directors unless they are removed. Under our
Certificate of Incorporation, directors can be removed from office during their
terms only if holders of at least 50% of our outstanding voting stock, voting
together as one class, approve the removal. Holders of at least 80% of our
outstanding voting stock, voting together as one class, must approve any
proposal to amend or repeal, or adopt any provisions inconsistent with, this
provision of our Certificate of Incorporation unless such proposal is approved
by 66.67% of the members of our Board of Directors who are continuing directors
according to our Certificate of Incorporation, in which case holders of at least
a majority of the outstanding voting stock entitled to vote may approve such a
proposal.
26
<PAGE> 28
Restriction on Stockholder Actions by Written Consent. Our Certificate of
Incorporation provides that any action required or permitted to be taken by the
stockholders must be effected at a duly called annual or special meeting of
stockholders and not by any consent in writing. Our Certificate of Incorporation
and bylaws each provide that special meetings of the stockholders may only be
called by the Board of Directors. Holders of at least 80% of our outstanding
voting stock, voting together as one class, must approve any proposal to amend
or repeal, or adopt any provision inconsistent with, these provisions of our
Certificate of Incorporation and bylaws, unless such proposal is approved by
66.67% of the members of our Board of Directors who are continuing directors
according to our Certificate of Incorporation, in which case holders of at least
a majority of the outstanding voting stock entitled to vote may approve such
proposal.
Advance Notice Requirements for Director Nominations and Stockholder Proposals.
Stockholders can nominate candidates for our Board of Directors. However, a
stockholder must follow the advance notice procedures described in our bylaws.
In general, a stockholder must submit a written notice of the nomination to our
Corporate Secretary at least 90 days before a scheduled annual meeting of our
stockholders or within 10 days after a stockholder receives notice of a special
meeting. The notice must set forth such information about the stockholder making
the nomination and the nominee as is specifically required in the bylaws.
Stockholders can propose that business other than nominations to our Board of
Directors be considered at an annual meeting of stockholders only if a
stockholder follows the advance notice procedures described in our bylaws. In
general, a stockholder must submit a written notice of the proposal and the
stockholder's interest in the proposal at least 60 days before the date set for
the annual meeting of our stockholders.
Directors' Ability to Amend Bylaws. Under our bylaws, our Board of Directors can
adopt, amend or repeal the bylaws, subject to limitations under Delaware law and
our Certificate of Incorporation. Pursuant to our Certificate of Incorporation,
a majority of our Board of Directors may not amend or repeal bylaw provisions
relating to (i) the calling of special meetings of the stockholders, (ii)
actions by stockholders without a meeting, (iii) agenda matters to be presented
at stockholders' meetings, (iv) elections of directors and (v) indemnification
of officers and directors, all of which may be amended or repealed only by the
vote of at least 80% of all shares entitled to vote or by the vote of at least
66.67% of the members of our Board of Directors who are continuing directors
according to our Certificate of Incorporation. Our stockholders also have the
power to change or repeal our bylaws.
Additional Authorized Shares of Capital Stock. Additional shares of authorized
Common Stock and Preferred Stock available for issuance under our Certificate of
Incorporation could be issued at such times, under such circumstances and with
such terms and conditions as to impede a change in control of Fidelity.
27
<PAGE> 29
PLAN OF DISTRIBUTION
We may sell the securities offered pursuant to this prospectus through agents,
through underwriters or dealers or directly to one or more purchasers.
Underwriters, dealers and agents that participate in the distribution of the
securities offered pursuant to this prospectus may be underwriters as defined in
the Securities Act of 1933, as amended (the "Securities Act"), and any discounts
or commissions received by them from us and any profit on the resale of the
offered securities by them may be treated as underwriting discounts and
commissions under the Securities Act. Any underwriters or agents will be
identified and their compensation (including underwriting discount) will be
described in the applicable prospectus supplement. The prospectus supplement
will also describe other terms of the offering, including any discounts or
concessions allowed or reallowed or paid to dealers and any securities exchanges
on which the offered securities may be listed.
The distribution of the securities offered under this prospectus may occur from
time to time in one or more transactions at a fixed price or prices, which may
be changed, at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
If the applicable prospectus supplement indicates, we will authorize dealers or
our agents to solicit offers by certain institutions to purchase offered
securities from us pursuant to contracts that provide for payment and delivery
on a future date.
We may have agreements with the underwriters, dealers and agents to indemnify
them against certain civil liabilities, including liabilities under the
Securities Act, or to contribute with respect to payments which the
underwriters, dealers or agents may be required to make as a result of those
certain civil liabilities.
When we issue the securities offered by this Prospectus (except for shares of
Common Stock), they may be new securities without an established trading market.
If we sell a security offered by this prospectus to an underwriter for public
offering and sale, the underwriter may make a market for that security, but the
underwriter will not be obligated to do so and could discontinue any market
making without notice at any time. Therefore, we cannot give any assurances to
you concerning the liquidity of any security offered by this prospectus.
Underwriters and agents and their affiliates may be customers of, engage in
transactions with, or perform services for us or our subsidiaries in the
ordinary course of their businesses.
LEGAL OPINIONS
The validity of the securities offered by this prospectus and certain legal
matters relating thereto will be passed upon for Fidelity by Stradling Yocca
Carlson & Rauth, a Professional Corporation, Newport Beach, California and for
the underwriters by O'Melveny and Myers LLP, Los Angeles, California.
28
<PAGE> 30
EXPERTS
The Consolidated Financial Statements of Fidelity as of December 31, 1997 and
1996, and for each of the years in the three year period ended December 31,
1997, have been incorporated by reference herein and in the Registration
Statement in reliance upon the report of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
The Consolidated Financial Statements of Granite Financial, Inc. as of June 30,
1997, and for each of the years in the two year period ended June 30, 1997, have
been incorporated by reference herein and in the Registration Statement in
reliance upon the report of Ehrhardt Keefe Steiner & Hottman PC, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
29
<PAGE> 31
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
DECEMBER , 1998
[FIDELITY NATIONAL LOGO]
FIDELITY NATIONAL FINANCIAL, INC.
$150,000,000
DEBT SECURITIES, PREFERRED STOCK,
DEPOSITARY SHARES OR COMMON STOCK
----------------------------------
PROSPECTUS
----------------------------------
- --------------------------------------------------------------------------------
We have not authorized any dealer, salesperson or other person to give you
written information other than this prospectus or to make representations as to
matters not stated in this prospectus. You must not rely on unauthorized
information. This prospectus is not an offer to sell these securities or our
solicitation of your offer to buy the securities in any jurisdiction where that
would not be permitted or legal. Neither the delivery of this prospectus nor any
sales made hereunder after the date of this prospectus shall create an
implication that the information contained herein or the affairs of the company
have not changed since the date hereof.
- --------------------------------------------------------------------------------
<PAGE> 32
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
<TABLE>
<S> <C>
Securities and Exchange Commission Fee............... $ 44,250
Accounting Fees and Expenses......................... $ 75,000*
Legal Fees and Expenses.............................. $100,000*
Printing Expenses.................................... $125,000*
Miscellaneous Expenses............................... $ 55,750*
--------
Total...................................... $400,000
========
</TABLE>
- -------------------------
* Estimate.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Certificate of Incorporation limits, to the maximum extent
permitted by Delaware law, the personal liability of directors for monetary
damages for breach of their fiduciary duties as a director. The Registrant's
Bylaws provide that the Registrant shall indemnify its officers and directors
and may indemnify its employees and other agents to the fullest extent permitted
by Delaware law.
Section 145 of the Delaware General Corporation Law provides that a corporation
may indemnify any person made a party to an action (other than an action by or
in the right of the corporation) by reason of the fact that he or she was a
director, officer, employee or agent of the corporation or was serving at the
request of the corporation against expenses (including attorneys' fees),
judgments, fines, and amounts paid in settlement actually and reasonably
incurred by him or her in connection with such action if he or she acted in good
faith and in a manner he or she reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any criminal action
(other than an action by or in the right of the corporation), has no reasonable
cause to believe his or her conduct was unlawful.
The directors and officers of the Company are covered by insurance policies
indemnifying against certain liabilities, including certain liabilities arising
under the Securities Act, which might be incurred by them in such capacities and
against which they cannot be indemnified by the Company.
ITEM 16. EXHIBITS
The following exhibits are filed as part of this Registration Statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
1.1 Form of Underwriting Agreement for Debt Securities*
1.2 Form of Underwriting Agreement for Common Stock*
1.3 Form of Underwriting Agreement for Preferred Stock*
1.4 Form of Underwriting Agreement for Depositary Shares*
3.1 Form of Restated Certificate of Incorporation of the
Registrant (to be filed with the Delaware Secretary of
State)
</TABLE>
II-1
<PAGE> 33
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C>
3.2 Bylaws of the Registrant, as amended to date
4.1 Form of Indenture for Debt Securities
4.2 Form of Certificate of Designations of Preferred Stock
4.3 Form of Deposit Agreement with respect to the Depositary
Shares
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation
12.1 Computations of Ratio of Earnings to Fixed Charges
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Ehrhardt Keefe Steiner & Hottman PC
23.3 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1)
24.1 Powers of Attorney**
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939, as amended, of
as Trustee for the Debt Securities*
</TABLE>
- -------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K to
be filed by the Company in connection with a specific offering pursuant to
Item 601 of Regulation S-K under the Securities Act.
** Previously filed.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is
II-2
<PAGE> 34
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(e) The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under subsection
(a) of Section 310 of the Trust Indenture Act ("Act") in accordance with the
rules and regulations prescribed by the Commission under Section 305(b)(2) of
the Act.
II-3
<PAGE> 35
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Fidelity National
Financial, Inc. certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
Amendment No. 1 to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Irvine, State of
California, on the 14th day of December, 1998.
FIDELITY NATIONAL FINANCIAL, INC.
By: /s/ WILLIAM P. FOLEY, II
-----------------------------------------
William P. Foley, II
Chairman of the Board
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1
to the Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
/s/ WILLIAM P. FOLEY, II Chairman of the Board December 14, 1998
- ------------------------------------------ and Chief Executive
William P. Foley, II Officer (Principal
Executive Officer)
/s/ FRANK P. WILLEY President and December 14, 1998
- ------------------------------------------ Director
Frank P. Willey
/s/ ALLEN D. MEADOWS Executive Vice December 14, 1998
- ------------------------------------------ President and Chief
Allen D. Meadows Financial Officer
(Principal Financial
Officer and
Accounting Officer)
* Director December 14, 1998
- ------------------------------------------
William A. Imparato
* Director December 14, 1998
- ------------------------------------------
Donald M. Koll
Director December , 1998
- ------------------------------------------
Daniel D. Lane
* Director December 14, 1998
- ------------------------------------------
General William Lyon
</TABLE>
II-4
<PAGE> 36
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <C> <S>
* Director December 14, 1998
- ------------------------------------------
J. Thomas Talbot
* Director December 14, 1998
- ------------------------------------------
Cary H. Thompson
Director December , 1998
- ------------------------------------------
William W. Wehner
</TABLE>
*By: /s/ WILLIAM P. FOLEY, II
------------------------------------------------
William P. Foley, II, Attorney-in-Fact
II-5
<PAGE> 37
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- ------- -----------
<C> <S>
1.1 Form of Underwriting Agreement for Debt Securities *
1.2 Form of Underwriting Agreement for Common Stock *
1.3 Form of Underwriting Agreement for Preferred Stock*
1.4 Form of Underwriting Agreement for Depositary Shares*
3.1 Form of Restated Certificate of Incorporation of the
Registrant (to be filed with the Delaware Secretary of
State)
3.2 Bylaws of the Registrant, as amended to date
4.1 Form of Indenture for Debt Securities
4.2 Form of Certificate of Designations of Preferred Stock
4.3 Form of Deposit Agreement with respect to the Depositary
Shares
5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional
Corporation
12.1 Computations of Ratio of Earnings to Fixed Charges
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of Ehrhardt Keefe Steiner & Hottman PC
23.3 Consent of Stradling Yocca Carlson & Rauth, a Professional
Corporation (included in Exhibit 5.1)
24.1 Powers of Attorney**
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939, as amended, of
as trustee for the Debt Securities*
</TABLE>
- -------------------------
* To be filed by amendment or as an exhibit to a Current Report on Form 8-K to
be filed by the Company in connection with a specific offering pursuant to
Item 601 of Regulation S-K of the Securities Act.
** Previously filed.
<PAGE> 1
EXHIBIT 3.1
RESTATED CERTIFICATE OF INCORPORATION
OF
FIDELITY NATIONAL FINANCIAL, INC.
FIDELITY NATIONAL FINANCIAL, INC., a corporation organized and existing
under the General Corporation Law of the State of Delaware (the "Corporation"),
does hereby certify as follows:
1. The present name of the Corporation is Fidelity National Financial,
Inc. The original Certificate of Incorporation of the Corporation was filed with
the Secretary of State of the State of Delaware on December 29, 1986.
2. This Restated Certificate of Incorporation was duly adopted in
accordance with Section 245 of the Delaware General Corporation Law.
3. This Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Corporation's
Certificate of Incorporation as heretofore amended or supplemented, and there is
no discrepancy between those provisions and the provisions of the restated
Certificate of Incorporation, other than omissions permitted by Section 245(c)
of the Delaware General Corporation Law.
4. The Certificate of Incorporation of the Corporation, as heretofore
amended or supplemented, is hereby restated and integrated to read in its
entirety as follows:
"RESTATED CERTIFICATE OF INCORPORATION
OF
FIDELITY NATIONAL FINANCIAL, INC.
"FIRST: The name of the corporation is Fidelity National
Financial, Inc.
SECOND: The address of the registered office of the corporation
in the State of Delaware is Corporation Trust Center, 1209 Orange
Street, in the city of Wilmington, County of New Castle. The name of its
registered agent at that address is The Corporation Trust Company
THIRD: The purpose of the corporation is to engage in any lawful
act or activity for which corporations may be organized under the
General Corporation Law of Delaware.
FOURTH: (a) General. The aggregate number of shares which the
Corporation is authorized to issue is 53,000,000 shares, of which
3,000,000 shall be shares of preferred stock, $.0001 par value per share
(the "Preferred Stock") and 50,000,000 shall be shares of common stock,
$.0001 par value per share (the "Common Stock").
<PAGE> 2
(b) Preferred Stock. The Board of Directors is authorized,
subject to limitations prescribed by law and the provisions of this
Article FOURTH, to provide for the issuance of the shares of the
Preferred Stock in series, and by filing a certificate pursuant to the
applicable law of the State of Delaware, to establish from time to time
the number of shares to be included in each such series, and to fix the
designation, powers, preferences and rights of the shares of each such
series and the qualifications, limitations or restrictions thereof.
The authority of the Board of Directors with respect to each
series of the Preferred Stock shall include, but not be limited to,
determination of the following:
(i) The number of shares constituting that series and the
distinctive designation of that series;
(ii) The dividend rate on the shares of that series,
whether dividends shall be cumulative, and, if so, from which
date or dates, and the relative rights of priority, if any, of
payment of dividends on shares of that series;
(iii) Whether that series shall have voting rights, in
addition to the voting rights provided by law, and, if so, the
terms of such voting rights;
(iv) Whether that series shall have conversion privileges,
and, if so, the terms and conditions of such conversion,
including provision for adjustment of the conversion rate in such
events as the Board of Directors shall determine;
(v) Whether or not the shares of that series shall be
redeemable, and, if so, the terms and conditions of such
redemption, including the date or date upon or after which they
shall be redeemable, and the amount per share payable in case of
redemption, which amount may vary under different conditions and
at different redemption dates;
(vi) Whether that series shall have a sinking fund for the
redemption or purchase of shares of that series, and, if so, the
terms, and amount of such sinking fund;
(vii) The rights of the shares of that series in the event
of voluntary or involuntary liquidation, dissolution or winding
up of the corporation, and the relative rights of priority, if
any, of payment of shares of that series; and
(viii) Any other relative rights, preferences and
limitations of that series.
(c) Common Stock. Each share of Common Stock issued and
outstanding shall have one vote upon matters submitted to the common
stock shareholders for a vote.
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FIFTH: The Board of Directors shall have the power to adopt,
amend and repeal the Bylaws of the Corporation (except so far as the
Bylaws of the Corporation adopted by the stockholders shall otherwise
provide). Any Bylaws adopted by the directors under the powers conferred
hereby may be amended or repealed by the directors or by the
stockholders. Notwithstanding the foregoing and anything contained in
this Certificate of Incorporation to the contrary, Article II, Sections
1 (c), 5, 6 and 7; Article III, Section 2; and Article V of the Bylaws
as originally adopted by the sole incorporator shall not be amended or
repealed and no provision inconsistent therewith shall be adopted
without the affirmative vote of the holders of at least 80% of the
voting power of all the shares of the Corporation entitled to vote
generally in the election of directors, voting together as a single
class; provided, however, that the Continuing Directors by a two-thirds
vote of such Continuing Directors defined in Article EIGHTH say amend or
repeal the foregoing Bylaw provisions without the requirement of such
shareholder vote. Notwithstanding anything contained in this Certificate
of Incorporation to the contrary, the affirmative vote of the holders of
at least 80% of the voting power of all the shares of the Corporation
entitled to vote generally in the election of directors, voting together
as a single class, shall be required to alter, amend, adopt any
provision inconsistent with or repeal this Article Fifth; provided,
however, that if the Continuing Directors as defined in Article EIGHTH
shall by a two-thirds vote of such Continuing Directors have adopted a
resolution approving the amendment or repeal proposal and have
determined to recommend it for approval by the holders of stock entitled
to vote thereon, then the vote required shall be the affirmative vote of
the holders of at least a majority of the outstanding shares entitled to
vote thereon.
SIXTH: Any action required or permitted to be taken by the
stockholders of the Corporation must be effected at a duly called annual
or special meeting of such holders and may not be effected by any
consent in writing by such holders. Except as otherwise required by law
and subject to the rights of the holders of the Preferred Stock, special
meetings of stockholders of the Corporation may be called only by the
Board of Directors pursuant to a resolution approved by a majority of
the whole Board of Directors. Notwithstanding anything contained in this
Certificate of Incorporation to the contrary, the affirmative vote of
the holders of at least 80% of the voting power of all shares of the
Corporation entitled to vote generally in the election of directors,
voting together as a single class, shall be required to alter, amend, or
adopt any provision inconsistent with or repeal this Article Sixth;
provided, however, that if the Continuing Directors as defined in
Article EIGHTH shall by a two-thirds vote of such Continuing Directors
have adopted a resolution approving the amendment or repeal proposal and
have determined to recommend it for approval by the holders of stock
entitled to vote thereon, then the vote required shall be the
affirmative vote of the holders of at least a majority of the
outstanding shares entitled to vote thereon.
SEVENTH: (a) The business and affairs of the corporation shall be
managed by the Board of Directors of the corporation.
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<PAGE> 4
(b) Except as otherwise fixed by or pursuant to the provisions of
Article Fourth hereof relating to the rights of the holders of Preferred
Stock to elect additional directors under specified circumstances, the
number of the directors of the Corporation shall be fixed from time to
time by or pursuant to the Bylaws of the Corporation. The directors,
other than those who may be elected by the holders of Preferred Stock,
shall be classified, with respect to the time for which they severally
hold office, into three classes, as nearly equal in number as possible,
as shall be provided in the manner specified in the Bylaws of the
Corporation, one class to be originally elected for a term expiring at
the annual meeting of stockholders to be held in 1988, another class to
be originally elected for a term expiring at the annual meeting of
stockholders to be held in 1989, and another class to be originally
elected for a term expiring at the annual meeting of stockholders to be
held in 1990, with each class to hold office until its successor is
elected and qualified. At each annual meeting of the stockholders, the
successors of the class of directors whose term expires at that meeting
shall be elected to hold office for a term expiring at the annual
meeting of stockholders held in the third year following the year of
their election.
(c) Advance notice of stockholder nominations, for the election
of directors shall be given in the manner provided in the Bylaws of the
Corporation. Election of directors need not be by written ballot unless
the Bylaws of the Corporation shall so provide.
(d) Except as otherwise provided for or fixed by or pursuant to
the provisions of Article Fourth hereof relating to the rights of the
holders of Preferred Stock to elect directors under specified
circumstances, newly created directorships resulting from any increase
in the number of directors and any vacancies on the Board of Directors
resulting from death, resignation, disqualification, removal or other
cause shall be filled by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of
the Board of Directors. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term
of the class of directors in which the new directorship was created or
the vacancy occurred and until such director's successor shall have been
elected and qualified. No decrease in the number of directors
constituting the Board of Directors shall shorten the term of any
incumbent director.
(e) Subject to the rights of any Preferred Stock to elect
directors under specified circumstances, any director may be removed
from office, only with cause, and only by the affirmative vote of the
holders of 50% of the combined voting power of the then outstanding
shares of stock entitled to vote generally in the election of directors,
voting together as a single class.
(f) To the fullest extent permitted by the General Corporation
Law of the State of Delaware, a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director. Any repeal or
modification of this paragraph shall be prospective only, and shall not
adversely affect any limitation on the personal liability of a director
of
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<PAGE> 5
the corporation with respect to any act or omission occurring prior to
the time of such repeal or modification.
(g) Notwithstanding anything contained in this Certificate of
Incorporation to the contrary, the affirmative vote of the holders of at
least 80% of the voting power of all shares of the Corporation entitled
to vote generally in the election of directors, voting together as a
single class, shall be required to alter, amend, adopt any provision
inconsistent with or repeal this Article Seventh; provided, however,
that if the Continuing Directors as defined in Article EIGHTH shall by a
two-thirds vote of such Continuing Directors have adopted a resolution
approving the amendment or repeal proposal and have determined to
recommend it for approval by the holders of stock entitled to vote
thereon, then the vote required shall be the affirmative vote of the
holders of at least a majority of the outstanding shares entitled to
vote thereon.
EIGHTH: (a) In addition to any affirmative vote required by law,
this Certificate of Incorporation, any resolution or resolutions adopted
by the Board of Directors pursuant to its authority under Article FOURTH
of this Certificate of Incorporation, any agreement with any national
securities exchange or otherwise, any Business Combination involving the
corporation or any Subsidiary and any Related Person or any Affiliate or
Associate of a Related Person shall be subject to approval or
authorization in the manner provided by this Article EIGHTH. Certain
capitalized terms used herein are defined in paragraph (d) of this
Article EIGHTH.
(b) Except as otherwise expressly provided in paragraph (c) of
this Article EIGHTH, no Business Combination shall be consummated or
effected, either directly or indirectly, unless such Business
Combination shall have been approved or authorized by the affirmative
vote of the holders of not less than sixty-six and two-thirds percent
(66-2/3%) of the outstanding shares of Voting Stock which are not
Beneficially Owned by any Related Person or an Affiliate or Associate of
such Related Person, voting together as a single class (it being
understood for purposes of this Article EIGHTH, each share of Voting
Stock shall have one vote, notwithstanding any provision contained in
Article FOURTH to the contrary), notwithstanding the fact that no vote
for such transaction or approval by some lesser percentage of
stockholders may be required or specified by law, this Certificate of
Incorporation, any resolution or resolutions adopted by the Board of
Directors of the corporation pursuant to its authority under Article
FOURTH of this Certificate of Incorporation, any agreement with any
national securities exchange or otherwise.
(c) The approval or authorization of any Business Combination in
the manner provided for by paragraph (b) of this Article EIGHTH shall
not be required if all the conditions specified in either paragraph
(c)(i) or paragraph (c)(ii) of this Article EIGHTH are satisfied:
(i) such Business Combination shall have been expressly
approved by not less than two-thirds of the Continuing Directors,
either in
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<PAGE> 6
advance of or subsequent to a Related Person having become a
Related Person; or
(ii) all of the conditions specified in the following
clauses shall have been met:
(A) the Fair Market Value as of the Consummation
Date of the consideration to be received per share of each
class or series of Capital Stock by Disinterested
Stockholders in the Business Combination is not less than
the Highest Per Share Price (it being understood that the
provisions of this subparagraph (c)(ii)(A) shall be
required to be met with respect to every class or series
of the outstanding Capital Stock, whether or not the
Related Person has previously acquired any shares of a
particular series or class of Capital Stock); and
(B) the form of consideration to be received by
Disinterested Stockholders in the Business Combination
shall be United States currency or the form of
consideration used by the Related Person in acquiring the
largest aggregate number of shares of the Capital Stock
that such Related Person has previously acquired; and
(C) after such Related Person has become a Related
Person and prior to the Consummation Date: (1) except as
approved by not less than two-thirds of the Continuing
Directors, there shall have been no failure to declare and
pay at the regular date therefor any full quarterly
dividends (whether or not cumulative) on the outstanding
Capital Stock; and (2) such Related Person shall have not
become the beneficial owner of any additional shares of
Voting Stock except as part of the transaction which
results in such Related Person becoming a Related Person;
and.
(D) after such Related Person has become a Related
Person, such Related Person shall not have received the
benefit, directly or indirectly (except proportionately as
a stockholder of the corporation), of any loans, advances,
guarantees, pledges or other financial assistance or tax
advantages provided by the corporation or any Subsidiary,
whether in anticipation of or in connection with such
Business Combination or otherwise; and
(E) a proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Act as then in effect shall have been
mailed to all Disinterested Stockholders at least thirty
(30) days prior to the date of the stockholders' meeting
at which such Business Combination is to be considered
(whether or not a proxy or information statement is
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<PAGE> 7
required to be mailed pursuant to the Act) and such proxy
or information statement shall have contained at the front
thereof, in a prominent place, such recommendations and
other relevant information concerning the Business
Combination as a majority of the Continuing Directors may
determine so to include.
(d) For the purposes of this Article EIGHTH:
(i) The term "Act" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated
thereunder, or any similar United States statute enacted to
supercede or supplement the Act.
(ii) The term "Affiliate" shall have the meaning ascribed
to it in Rule 12b-2 under the Act, as in effect on October 31,
1986, and shall include any Person that, after giving effect to a
Business Combination, would become an Affiliate.
(iii) The term "Announcement Date" shall mean the date of
the first public announcement of a proposed Business Combination.
(iv) The term "Associate" shall have the meaning ascribed
to it in Rule 12b-2, under the Act as in effect on October 31,
1986 (the term "registrant," as used in such Rule 12b-2, meaning
in this case the corporation), and shall include any Person that,
after giving effect to a Business Combination, would become an
Associate.
(v) The term "Beneficial Owner" or "Beneficially Owned"
shall mean, or refer to stock ownership by, any person who
beneficially own any Voting Stock within the meaning ascribed in
Rule 13d-3 under the Act as in effect in October 31, 1986 or who
has the right to acquire any such beneficial ownership (whether
or not such right is exercisable immediately, with the passage of
time or subject to any condition) pursuant to any agreement,
contract, arrangement or understanding or upon the exercise of
any conversion, exchange or other right, warrant or option, or
otherwise. A Person shall be deemed the Beneficial Owner of all
Capital Stock of which any Affiliate or Associate of such Person
is the Beneficial Owner.
(vi) The term "Business Combination" shall mean any (A)
merger or consolidation of the corporation or a Subsidiary with
or into a Related Person or any other corporation which is, or
after such merger or consolidation would be, an Affiliate or
Associate of a Related Person; (B) sale, lease, exchange,
mortgage, pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any Related
Person or any Affiliate or Associate of any Related Person, of
all or any Substantial Amount of the assets of the corporation,
one or more Subsidiaries, or the corporation and one or more
Subsidiaries, other than in the ordinary course of business; (C)
adoption of any plan or proposal for the liquidation or
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<PAGE> 8
dissolution of the corporation proposed by or on behalf of a
Related Person or any Affiliate or Associate of any Related
Person; (D) sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of
transactions) to the corporation, one or more Subsidiaries or the
corporation and one or more Subsidiaries (in one transaction or a
series of transactions) of all or any Substantial Amount of the
assets of a Related Person or any Affiliate or Associate of any
Related Person, other then in the ordinary course of business;
(E) issuance, pledge or transfer of securities of the
corporation, one or more Subsidiaries, or the corporation and one
or more Subsidiaries (in one transaction or a series of
transactions) to or with a Related Person or any Affiliate or
Associate of any Related Person in exchange for a Substantial
Amount of cash, securities or other property (or a combination
thereof), except any issuance, pledge or transfer of such
securities to any such Person if such Person is acting as an
underwriter with respect to such securities; (F) reclassification
of securities, (including any reverse stock split) or
recapitalization of the corporation, any merger or consolidation
of the corporation with or into one or more Subsidiaries, or any
other transaction that would have the effect, either directly or
indirectly, of increasing the voting power or the proportionate
share of any class of equity or convertible securities of the
corporation or any Subsidiary which is directly or indirectly
Beneficially Owned by any Related Person or any Affiliate or
Associate of my Related Person; (G) agreement, contract or other
arrangement providing for any of the transactions described in
this definition of Business Combinations; and (H) any series of
transactions that not less than two-thirds of the Continuing
Directors determine are related and, if taken together, would
constitute a Business Combination under this definition of
Business Combination.
(vii) The term "Capital Stock" shall mean all capital
stock of any class of the corporation authorized to be issued
from time to time under this Certificate of Incorporation,
whether now or hereafter outstanding.
(viii) The term "Consummation Date" shall mean the date of
the consummation of the Business Combination.
(ix) The term "Continuing Director" shall mean any member
of the Board of Directors of the corporation who is not the
Related Person, and not an Affiliate, Associate, representative
or nominee of the Related Person or of such an Affiliate or
Associate, that is involved in the relevant Business Combination,
and (A) was a member of the Board of Directors prior to the
Determination Date with respect to such Related Person or (B)
whose initial election as a director of the corporation succeeds
a Continuing Director and was recommended by a majority vote of
the Continuing Directors then in office; provided, that, in
either case, such Continuing Director shall have continued in
office after becoming a Continuing Director.
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<PAGE> 9
(x) The term "Determination Date" shall mean the date and
time at which a Person became a Related Person.
(xi) The term "Disinterested Stockholder" shall mean a
holder of shares of a particular class or series of Capital Stock
who is not (A) a Related Person with or for the benefit of whom a
Business Combination is proposed to be consummated or (B) an
Affiliate or Associate of such Related Person.
(xii) The term "Fair Market Value" shall mean (A) in the
case of United States currency, the amount thereof; (B) in the
case of stock and other securities, the highest closing sales
price during the 30-day period immediately preceding the date in
question of a share or trading unit of such stock or security on
the Composite Tape for New York Stock Exchange -- Listed Stocks,
or, if such stock or security is not listed on the New York Stock
Exchange, on the principal United States securities exchange
registered under the Act on which such stock or security is
listed, or, if such stock or security to not listed on any such
securities exchange, the highest closing sale price or bid
quotation with respect to a share or trading unit of such stock
or security during the 30-day period on the National Association
of Securities Dealers, Inc. Automated Quotations System or any
successor system or, if no such quotations are available, the
fair market value on the date in question of a share or trading
unit of such stock or security as determined in good faith by a
majority vote of the Continuing Directors; and (C) in the case of
property other than cash, stock or other securities, the fair
market value of such property on the date in question as
determined in good faith by a majority vote of the Continuing
Directors.
(xiii) The term "Highest Per Share Price" shall mean, with
respect to the consideration to be received per share of each
class or series of Capital Stock by Disinterested Stockholders in
any particular Business Combinations, the higher of the
following:
(A) the highest per share price (including
brokerage commissions transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Related Person
in acquiring Beneficial Ownership of any of its holdings
of such class or series of Capital Stock of this
corporation (1) within the two-year period immediately
prior to the Announcement Date or (2) in the transaction
or series of transactions in which the Related Person
became a Related Person, whichever is higher; or
(B) the fair Market Value per share of the shares
of Capital Stock being acquired in the Business
Combination as of (1) the Announcement Date or (2) the
date on which the Related Person became a Related Person,
whichever is higher.
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<PAGE> 10
For the purposes of this paragraph (d)(xiii), (A) the
price deemed to have been paid by a Related Person for any shares
of Capital Stock of which an Affiliate or Associate is the
Beneficial Owner shall be the price which to the highest of the
following: (1) the price paid upon the acquisition thereof by the
relevant Affiliate or Associate (if any, and whether or not such
Affiliate or Associate was an Affiliate or Associate at the time
of such acquisition) or (2) the Fair Market Value of such Capital
Stock as of the day when the Related Person became a Beneficial
Owner thereof; (B) in determining the Highest Per Share Price,
all purchases by the Related Person shall be taken into account,
regardless of whether the shares were purchased before or after
the Related Person became a Related Person; (C) a Person shall be
deemed to have acquired a share of Capital Stock at the time when
such Person became the Beneficial Owner thereof; and (D)
appropriate adjustments shall be made to reflect the relevant
effect of any stock dividends, splits and distributions and any
combination or reclassification of Capital Stock.
(xiv) The phrase "consideration to be received" as used in
subparagraph (c)(ii)(A) of this Article EIGHTH shall include,
without limitation, the shares of Common Stock or any other class
or series of Capital Stock retained by the Disinterested
Stockholders in the event of a Business Combination that is a
merger or consolidation in which the corporation is the surviving
entity.
(xv) The term "Person" shall mean any individual,
corporation, partnership or other entity, including any group
comprised of any Person and any other Person or any Affiliate or
Associate thereof with whom such Person or any Affiliate or
Associate thereof has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of
acquiring, holding, voting, or disposing of Voting Stock and each
Person, and any Affiliate or Associate thereof, that is a member
of such group.
(xvi) The term "Related Person" shall mean any Person who,
alone or together with any Affiliates or Associates is:
(A) the Beneficial Owner, directly or indirectly,
of an aggregate percentage of the outstanding Voting Stock
equal to or exceeding ten percent (10%), or
(B) an assignee of or otherwise has succeeded to
the Beneficial Ownership of any shares of Voting Stock
which were at any time within the two-year period
immediately prior to the date in question Beneficially
Owned by any Related Person, if such assignment or
succession shall have occurred in the course of a
transaction or series of transactions not involving a
public offering within the meaning of the Securities Act
of 1933, as amended;
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provided, however, that the term "Related Person" shall not
include (v) any officer or director initially appointed by the
sole incorporator of the Corporation or any of their Affiliates
or Associates, (w) any one or a group of more than one Continuing
Director, (x) the corporation or any Subsidiary all of the
Capital Stock of or other ownership interest in which is directly
or indirectly owned by the Corporation, (y) any Person whose
acquisition of such aggregate percentage of Voting Stock was
approved by not less than a two-thirds vote of the Continuing
Directors prior to such acquisition or (z) any pension, profit
sharing, employee stock ownership or other employee benefit plan
of the corporation or any Subsidiary or any trustee or fiduciary
when acting in such capacity with respect to any such plan.
(xvii) The term "Subsidiary" shall mean any Person a
majority of any class of equity securities in which is owned,
directly or indirectly, by the corporation, one or more
Subsidiaries or the corporation and one or more Subsidiaries.
(xviii)The term "Substantial Amount" shall mean the amount
of stock, securities or other assets or property having a Fair
Market Value equal to ten percent (10%) or more of the Fair
Market Value of the total consolidated assets of the corporation
and its Subsidiaries taken as a whole as of the end of the most
recent fiscal year of the corporation ended prior to the time as
of which the determination is being made.
(xix) The term "Voting Stock" shall mean all outstanding
Common Stock of the corporation and all other outstanding Capital
Stock, if any, entitled to vote on each matter on which the
holders of record of Common Stock shall be entitled to vote, and
each reference to a proportion of shares of Voting Stock shall
refer to such proportion of the votes entitled to be cast by the
holders of such shares of Common Stock and other Capital Stock
voting as one class (it being understood that for purposes of
this Article EIGHTH, each share of Voting Stock shall have the
number of votes granted to it in accordance with Article FOURTH
of this Certificate of Incorporation).
(e) The fact that any Business Combination complies with the
provisions of paragraph (c)(ii) of this Article EIGHTH shall not be
construed to impose any fiduciary duty, obligation or responsibility on
the Board of Directors, or any member thereof, to approve such Business
Combination or recommend its adoption or approval to the stockholders of
the corporation, nor shall such compliance limit, prohibit or otherwise
restrict in any manner the Board of Directors, or any member thereof,
with respect to evaluations of or actions and responses taken with
respect to such Business Combination.
(f) A majority of the Continuing Directors of the corporation
shall have the power and duty to determine for the purposes of this
article EIGHTH, on the basis of information known to then after
reasonable inquiry, (i) whether a person is a Related Party, (ii) the
number of shares of Voting Stock Beneficially Owned by any
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<PAGE> 12
person, and (iii) whether a person is an Affiliate or Associate of
another. A majority of the Continuing Directors of the corporation shall
have the further power to interpret all of the terms and provisions of
this Article EIGHTH.
(g) The affirmative vote of not less than sixty-six and
two-thirds percent (66-2/3%) of the outstanding shares of Voting Stock
which are not Beneficially Owned by any Related Person or any Affiliate
or Associate of a Related Person shall be required to alter, amend or
repeal, or adopt any provisions inconsistent with, the provision set
forth in this Article EIGHTH; provided, however, that if the Continuing
Directors shall by a two-thirds vote of such Continuing Directors have
adopted a resolution approving the amendment or repeal proposal and have
determined to recommend it for approval by the holders of stock entitled
to vote thereon, then the vote required shall be the affirmative vote of
the holders of at least a majority of the outstanding shares entitled to
vote thereon.
NINTH: Subject to the other terms of this Certificate of
Incorporation, the Corporation reserves the right to amend, altar,
change or repeal any provision contained in this Certificate of
Incorporation, in the manner now or hereafter prescribed by statute and
this Certificate of Incorporation, and all rights conferred on
stockholders herein are granted subject to this reservation.
TENTH: The period of duration of the Corporation is perpetual."
IN WITNESS WHEREOF, the Corporation has caused this certificate to be
signed by its duly authorized officer this day of December, 1998.
FIDELITY NATIONAL FINANCIAL, INC.
By: ____________________________________
M'Liss Jones Kane,
Senior Vice President and Secretary
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<PAGE> 1
EXHIBIT 3.2
FIDELITY NATIONAL FINANCIAL, INC.
BYLAWS
ARTICLE I
OFFICES
Section 1. Registered Office.
The registered office of the Corporation in the State of Delaware shall
be in the City of Wilmington, County of New Castle, State of Delaware.
Section 2. Other Offices.
The Corporation also may have offices at such other places both within
and without the State of Delaware as the Board of Directors may from time to
time determine or the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. Stockholder Meetings.
(a) Time and Place of Meetings. Meetings of the stockholders
shall be held at such times and places, either within or without the State of
Delaware, as may from time to time be fixed by the Board of Directors and stated
in the notices or waivers of notice of such meetings.
(b) Annual Meeting. The annual meeting of the stockholders shall
be held sometime during the month of June in each year as shall be designated by
the Board of Directors, or at such other date as may be designated by the Board
of Directors, for the election of directors and the transaction of such other
business properly brought before such annual meeting of the stockholders and
within the powers of the stockholders.
(c) Special Meetings. Special meetings of the stockholders of the
Corporation for any purpose or purposes may be called at any time only by the
Board of Directors pursuant to a resolution approved by a majority of the entire
Board of Directors. Business transacted at any special meeting of the
stockholders shall be limited to the purposes stated in the notice of such
meeting.
(d) Notice of Meetings. Except as otherwise provided by law, the
Certificate of Incorporation or these Bylaws, written notice of each meeting of
the stockholders shall be given not less than ten (10) days nor more than sixty
(60) days before the date of such meeting to each stockholder entitled to vote
thereat, directed to such stockholder's address as it appears upon the books of
the Corporation, such notice to specify the place, date, hour and purpose or
purposes of
<PAGE> 2
such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, postage prepaid, addressed to the
stockholder at his address as it appears on the stock ledger of the Corporation.
When a meeting of the stockholders is adjourned to another time and/or place,
notice need not be given of such adjourned meeting if the time and place thereof
are announced at the meeting of the stockholders at which the adjournment is
taken, unless the adjournment is for more than thirty (30) days or unless after
the adjournment a new record date is fixed for such adjourned meeting, in which
event a notice of such adjourned meeting shall be given to each stockholder of
record entitled to vote thereat. Notice of the time, place and purpose of any
meeting of the stockholders may be waived in writing either before or after such
meeting and will be waived by any stockholder by such stockholder's attendance
thereat in person or by proxy. Any stockholder so waiving notice of such a
meeting shall be bound by the proceedings of any such meeting in all respects as
if due notice thereof had been given.
(e) Quorum. Except as otherwise required by law, the Certificate
of Incorporation or these Bylaws, the holders of not less than a majority of the
shares entitled to vote at any meeting of the stockholders, present in person or
by proxy, shall constitute a quorum and the affirmative vote of the majority of
such quorum shall be deemed the act of the stockholders. If a quorum shall fail
to attend any meeting of the stockholders, the presiding officer of such meeting
may adjourn such meeting from time to time to another place, date or time,
without notice other than announcement at such meeting, until a quorum is
present or represented. At such adjourned meeting at which a quorum is present
or represented, any business may be transacted that might have been transacted
at the meeting of the stockholders as originally noticed. The foregoing
notwithstanding, if a notice of any adjourned special meeting of the
stockholders is sent to all stockholders entitled to vote thereat which states
that such adjourned special meeting will be held with those present in person or
by proxy constituting a quorum, then, except as otherwise required by law, those
present at such adjourned special meeting of the stockholders shall constitute a
quorum and all matters shall be determined by a majority of the votes cast at
such special meeting.
Section 2. Determination of Stockholders Entitled to Notice and to Vote.
To determine the stockholders entitled to notice of any meeting of the
stockholders or to vote thereat, the Board of Directors may fix in advance a
record date as provided in Article VII, Section 1 of these Bylaws, or if no
record date is fixed by the Board of Directors, a record date shall be
determined as provided by law.
Section 3. Voting.
(a) Except as otherwise required by law, the Certificate of
Incorporation or these Bylaws, each stockholder present in person or by proxy at
a meeting of the stockholders shall be entitled to one vote for each full share
of stock registered in the name of such stockholder at the time fixed by the
Board of Directors or by law as the record date of the determination of
stockholders entitled to vote at such meeting.
(b) Every stockholder entitled to vote at a meeting of the
stockholders may do so either (i) in person or (ii) by one or more agents
authorized by a written proxy executed by the person or such stockholder's duly
authorized agent, whether by manual signature, typewriting, telegraphic
transmission or otherwise. Every proxy must be executed in writing (which shall
include
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telegraphing or cabling) by the stockholder or by his duly authorized agent, but
no proxy shall be voted on after three years from its date, unless the proxy
provides for a longer period.
(c) Voting may be by voice or by ballot as the presiding officer
of the meeting of the stockholders shall determine. On a vote by ballot, each
ballot shall be signed by the stockholder voting, or by such stockholder's
proxy, and shall state the number of shares voted.
(d) In advance of or at any meeting of the stockholders, the
Chairman of the Board or President may appoint one or more persons as inspectors
of election (the "Inspectors") to act at such meeting. Such Inspectors shall
take charge of the ballots at such meeting. After the balloting on any question,
the Inspectors shall count the ballots cast and make a written report to the
secretary of such meeting of the results. Subject to the direction of the
chairman of the meeting, the duties of such Inspectors may further include
without limitation: determining the number of shares outstanding and the voting
power of each; the shares represented at the meeting; the existence of a quorum;
the authenticity, validity, and effect of proxies; receiving votes, ballots, or
consents; hearing and determining all challenges and questions in any way
arising in connection with the right to vote; counting and tabulating all votes
of consents and determining when the polls shall close; determining the result;
and doing such acts as may be proper to conduct the election or vote with
fairness to all shareholders. An Inspector need not be a stockholder of the
Corporation and any officer of the Corporation may be an Inspector on any
question other than a vote for or against such officer's election to any
position with the Corporation or on any other questions in which such officer
may be directly interested. If there are three Inspectors, the determination,
report or certificate of two such Inspectors shall be effective as if
unanimously made by all Inspectors.
Section 4. List of Stockholders.
The officer who has charge of the stock ledger of the Corporation shall
prepare and make available, at least ten (10) days before every meeting of
stockholders, a complete list of the stockholders entitled to vote thereat,
arranged in alphabetical order, showing the address of and the number of shares
registered in the name of each such stockholder. Such list shall be open to the
examination of any stockholder, for any purpose germane to such meeting, either
at a place within the city where such meeting is to be held and which place
shall be specified in the notice of such meeting, or, if not so specified, at
the place where such meeting is to be held. The list also shall be produced and
kept at the time and place of the meeting of the stockholders during the whole
time thereof, and may be inspected by any stockholder who is present.
Section 5. Action by Consent of Stockholders.
Any action required or permitted to be taken by the stockholders must be
effected at a duly called annual or special meeting of such holders and may not
be effected by any consent in writing by such holders.
Section 6. Conduct of Meetings.
The chairman of the meeting shall have full and complete authority to
determine the agenda, to set the procedures and order the conduct of meetings,
all as deemed appropriate by such person in his sole discretion with due regard
to the orderly conduct of business.
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Section 7. Notice of Agenda Matters.
If a stockholder wishes to present to the Chairman of the Board or the
President an item for consideration as an agenda item for a meeting of
shareholders, he must give timely notice to the Secretary of the Corporation and
give a brief description of the business desired to be brought before the
meeting. To be timely, a stockholder's notice must be delivered to or mailed and
received at the principal executive offices of the Corporation, not less than
sixty days nor more than ninety days prior to the meeting; provided, however,
that in the event that less than seventy days' notice or prior public disclosure
of the date of the meeting is given or made to stockholders, notice by the
stockholder to be timely must be so received not later than the close of
business on the tenth day following the date on which such notice of the date of
the annual meeting was mailed or such public disclosure was made.
ARTICLE III
BOARD OF DIRECTORS
Section 1. General Powers.
Unless otherwise restricted by law, the Certificate of Incorporation or
these Bylaws as to action which shall be authorized or approved by the
stockholders, and subject to the duties of directors as prescribed by these
Bylaws, all corporate powers shall be exercised by or under the authority of,
and the business and affairs of the Corporation shall be controlled by, the
Board of Directors. Without prejudice to such general powers, but subject to the
same limitations, the directors shall have the following powers:
(a) To select and remove all the other officers, agents and
employees of the Corporation; prescribe such powers and duties for them
as may not be inconsistent with law, the Certificate of Incorporation or
these Bylaws, fix their compensation and require from them security for
faithful service.
(b) To conduct, manage, and control the affairs and business of
the Corporation and to make such rules and regulations therefor not
inconsistent with law, the Certificate of Incorporation or these Bylaws,
as they may deem best.
(c) To change the principal office for the transaction of the
business of the Corporation from one location to another as provided in
Article I, Section 2, hereof; to designate any place within or without
the State of Delaware for the holding of any stockholders' meeting or
meetings and to adopt, make and use a corporate seal, and to prescribe
the forms of certificates of stock, and to alter the form of such seal
and of such certificates from time to time, as in their judgment they
may deem best, provided such seal and such certificates shall at all
times comply with the provisions of law.
(d) To authorize the issue of shares of stock of the Corporation
from time to time, upon such terms as may be lawful, in consideration of
money paid, labor done or services actually rendered, debts or
securities cancelled, or tangible or intangible property actually
received or, in the case of shares issued as a dividend, against amounts
transferred from surplus to stated capital.
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(e) To borrow money and incur indebtedness for the purposes of
the Corporation, and to cause to be executed and delivered therefor, in
the corporate name, promissory notes, bonds, debentures, deeds of trust,
mortgages, pledges, hypothecations or other evidences of debt and
securities therefor.
(f) To adopt and put into effect such stock purchase plans and
stock option plans, both of general and restricted stock option plan
character, as they may deem advisable for the benefit of employees of
the Corporation, and to issue stock in accordance with and pursuant to
any such plan.
Section 2. Election of Directors.
(a) Number, Qualification and Term of Office. The authorized
number of directors of the Corporation shall be fixed from time to time by the
Board of Directors, but shall not be less than three (3) nor more than ten (10).
The exact number of directors shall be determined from time to time, either by a
resolution or Bylaw provision duly adopted by a majority of the whole Board of
Directors. Directors need not be stockholders.
(b) Resignation. Any director may resign from the Board of
Directors at any time by giving written notice to the Secretary of the
Corporation. Any such resignation shall take effect at the time specified
therein, or if the time when such resignation shall become effective shall not
be so specified, then such resignation shall take effect immediately upon its
receipt by the Secretary; and, unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it effective.
(c) Nomination of Directors. Candidates for director of the
Corporation shall be nominated only either by:
(i) the Board of Directors or a committee appointed by the
Board of Directors, or
(ii) nomination at any stockholders' meeting by or on
behalf of any stockholder entitled to vote thereat; provided,
that written notice of such stockholder's intent to make such
nomination or nominations shall have been given, either by
personal delivery or by United States certified mail, postage
prepaid, to the Secretary of the Corporation not later than (1)
with respect to an election to be held at an annual meeting of
the stockholders, ninety (90) days in advance of such annual
meeting, and (2) with respect to an election to be held at a
special meeting of the stockholders for the election of
directors, the close of business on the tenth day following the
date on which notice of such special meeting is first given to
the stockholders entitled to vote thereat. Each such notice by a
stockholder shall set forth: (1) the name and address of the (A)
stockholder who intends to make the nomination and (B) person or
persons to be nominated; (2) a representation that the
stockholder is a holder of record of stock of the Corporation
entitled to vote at such meeting and intends to appear in person
or by proxy at the meeting to nominate the person or persons
specified in the notice; (3) a description of all arrangements or
understandings between the stockholder and each nominee and any
other person or
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persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder; (4)
such other information regarding each nominee proposed by such
stockholder as would be required to be included in a proxy or
information statement filed with the Securities and Exchange
Commission pursuant to the proxy rules promulgated under the
Securities Act of 1934, as amended, or any successor statute
thereto, had the nominee been nominated, or intended to be
nominated, by the Board of Directors; and (5) the manually signed
consent of each nominee to serve as a director of the Corporation
if so elected. The presiding officer of the meeting of the
stockholders may refuse to acknowledge the nominee of any person
not made in compliance with the foregoing procedure.
(d) Preferred Stock Provisions. Notwithstanding the foregoing,
whenever the holders of any one or more classes or series of stock issued by the
Corporation having a preference over the Common Stock as to dividends or upon
liquidation shall have the right, voting separately by class or series, to elect
directors at an annual or special meeting of the stockholders, the election,
term of office, filling of vacancies, nomination, terms of removal and other
features of such directorships shall be governed by the terms of Article FOURTH
of the Certificate of Incorporation and the resolution or resolutions
establishing such class or series adopted pursuant thereto.
Section 3. Meetings of the Board of Directors.
(a) Regular Meetings. Regular meetings of the Board of Directors
shall be held without call at the following times:
(i) at such times as the Board of Directors shall from
time to time by resolution determine; and
(ii) one-half hour prior to any special meeting of the
stockholders and immediately following the adjournment of any
annual or special meeting of the stockholders.
Notice of all such regular meetings hereby is dispensed with.
(b) Special Meetings. Special meetings of the Board of Directors
may be called by the Chairman of the Board of Directors, any three (3)
directors, the President or by any officer authorized by the Board of Directors.
Notice of the time and place of special meetings of the Board of Directors shall
be given by the Secretary or an Assistant Secretary of the Corporation, or by
any other officer authorized by the Board of Directors. Such notice shall be
given to each director personally or by mail, messenger, telephone or telegraph
at such director's business or residence address. Notice by mail shall be
deposited in the United States mail, postage prepaid, not later than the third
day prior to the date fixed for such special meeting. Notice by telephone or
telegraph shall be sent, and notice given personally or by messenger shall be
delivered, at least twenty-four (24) hours prior to the time set for such
special meeting. Notice of a special meeting of the Board of Directors need not
contain a statement of the purpose of such special meeting.
(c) Adjourned Meetings. A majority of directors present at any
regular or special meeting of the Board of Directors or any committee thereof,
whether or not constituting a quorum, may adjourn any meeting from time to time
until a quorum is present or otherwise. Notice
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of the time and place of holding any adjourned meeting shall not be required if
the time and place are fixed at the meeting adjourned.
(d) Place of Meetings Unless a resolution of the Board of
Directors is given, either before or after the meeting, and filed with the
Secretary of the Corporation designating a different place within or without the
State of Delaware, meetings of the Board of Directors, both regular and special,
shall be held at the Corporation's principal executive offices.
(e) Participation by Telephone. Members of the Board of Directors
or any committee may participate in any meeting of the Board of Directors or
committee through the use of conference telephone or similar communications
equipment, so long as all members participating in such meeting can hear one
another, and such participation shall constitute presence in person at such
meeting.
(f) Quorum. At all meetings of the Board of Directors or any
committee thereof, a majority of the total number of directors of the entire
then authorized Board of Directors or such committee shall constitute a quorum
for the transaction of business and the act of a majority of the directors
present at any such meeting at which there is a quorum shall be the act of the
Board of Directors or any committee, except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these Bylaws. A meeting of
the Board of Directors or any committee at which a quorum initially is present
may continue to transact business notwithstanding the withdrawal of directors so
long as any action is approved by at least a majority of the required quorum for
such meeting.
(g) Waiver of Notice. The transactions of any meeting of the
Board of Directors or any committee, however called and noticed or wherever
held, shall be as valid as though had at a meeting duly held after regular call
and notice, if a quorum be present and if, either before or after the meeting,
each of the directors not present signs a written waiver of notice, or a consent
to hold such meeting, or an approval of the minutes thereof. All such waivers,
consents or approvals shall be filed with the corporate records or made a part
of the minutes of the meeting.
Section 5. Action Without Meeting.
Any action required or permitted to be taken by the Board of Directors
at any meeting or at any meeting of a committee may be taken without a meeting
if all members of the Board of Directors or such committee consent in writing
and the writing or writings are filed with the minutes of the proceedings of the
Board of Directors or such committee.
Section 6. Compensation of Directors.
Unless otherwise restricted by law, the Certificate of Incorporation or
these Bylaws, the Board of Directors shall have the authority to fix the
compensation of directors. The directors may be paid their expenses, if any, of
attendance at each meeting of the Board of Directors and may be paid a fixed sum
for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor. Members
of committees of the Board of Directors may be allowed like compensation for
attending committee meetings.
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Section 7. Committees of the Board.
(a) Committees. The Board of Directors may, by resolution adopted
by a majority of the Board of Directors, designate one or more committees of the
Board of Directors, each committee to consist of one or more directors. Each
such committee, to the extent permitted by law, the Certificate of Incorporation
and these Bylaws, shall have and may exercise such of the powers of the Board of
Directors in the management and affairs of the Corporation as may be prescribed
by the resolutions creating such committee. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. The Board of Directors may designate one or
more directors as alternate members of any committee, who may replace any absent
or disqualified member at any meeting of the committee. In the absence or
disqualification of a member of a committee, the member or members thereof
present at any meeting and not disqualified from voting, whether or not he or
they constitute a quorum, may unanimously appoint another member of the Board of
Directors to act at the meeting in the place of any such absent or disqualified
member. The Board of Directors shall have the power, at any time for any reason,
to change the members of any such committee, to fill vacancies, and to
discontinue any such committee.
(b) Minutes of Meetings. Each committee shall keep regular
minutes of its meetings and report the same to the Board of Directors when
required.
(c) Limits on Authority of Committees. No committee shall have
the power or authority in reference to amending the Certificate of Incorporation
(except that a committee may, to the extent authorized in the resolution or
resolutions providing for the issuance of shares of stock adopted by the Board
of Directors as provided in Section 151(a) of the General Corporation Law of the
State of Delaware, fix the designations and any of the preferences or rights of
such shares relating to dividends, redemption, dissolution, any distribution of
assets of the Corporation, or the conversion into, or the exchange of such
shares for, shares of any other class or classes or any other series of the same
or any other class or classes of stock of the Corporation, or fix the number of
shares of any series of stock or authorize the increase or decrease of the
shares of any series), adopting an agreement of merger or consolidation,
recommending to the stockholders the sale, lease or exchange of all or
substantially all of the Corporation's property and assets, recommending to the
stockholders a dissolution of the Corporation or a revocation of a dissolution,
or amending any provision of these Bylaws; nor, unless the resolutions
establishing such committee or the Certificate of Incorporation expressly so
provide, shall it have the power or authority to declare a dividend, to
authorize the issuance of stock, to adopt a certificate of ownership and merger,
or to fill vacancies in the Board of Directors.
(d) Audit Committee. The Board of Directors shall appoint an
Audit Committee consisting of at least two directors, none of whom shall be
employees of the Corporation. The Audit Committee shall review the financial
affairs and procedures of the Corporation from time to time with management and
meet with the auditors of the Corporation to review the financial statements and
procedures.
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ARTICLE IV
OFFICERS
Section 1. Officers.
(a) Number. The officers of the Corporation shall be chosen by
the Board of Directors and may include a Chairman of the Board of Directors and
shall include a President, a Vice President, a Secretary and a Treasurer. The
Board of Directors also may appoint one or more Assistant Secretaries or
Assistant Treasurers and such other officers and agents with such powers and
duties as it shall deem necessary. Any Vice President may be given such specific
designation as may be determined from time to time by the Board of Directors.
Any number of offices may be held by the same person, unless otherwise required
by law, the Certificate of Incorporation or these Bylaws.
(b) Election and Term of Office. The officers shall be elected
annually by the Board of Directors at its regular meeting following the annual
meeting of the stockholders and each officer shall hold office until the next
annual election of officers and until such officer's successor is elected and
qualified, or until such officer's death, resignation or removal. Any officer
may be removed at any time, with or without cause, by a vote of the majority of
the whole Board of Directors. Any vacancy occurring in any office may be filled
by the Board of Directors.
(c) Salaries. The salaries of all officers of the Corporation
shall be fixed by the Board of Directors or a committee thereof from time to
time.
Section 2. Chairman of the Board of Directors.
The Chairman of the Board of Directors, if there be a Chairman, shall
preside at all meetings of the stockholders and the Board of Directors and shall
have such other power and authority as may from time to time be assigned by the
Board of Directors.
Section 3. President.
The President shall be the chief executive officer of the Corporation,
shall preside at all meetings of the stockholders and the Board of Directors, if
a Chairman of the Board has not been elected, and shall see that all orders and
resolutions of the Board of Directors are carried into effect. Subject to the
provisions of these Bylaws and to the direction of the Board of Directors, the
President shall have the general and active management of the business of the
Corporation, may execute all contracts requiring a seal and shall also execute
any mortgages, conveyances or other legal instruments in the name of and on
behalf of the Corporation, but his provision shall not prohibit the delegation
of such powers by the Board of Directors to some other officer, agent or
attorney-in-fact of the Corporation.
Section 4. Vice Presidents.
In the absence or disability of the President, the Vice Presidents in
order of their rank as fixed by the Board of Directors, or if not ranked, the
Vice President designated by the Board of Directors, shall perform all the
duties of the President, and when so acting shall have all the powers
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of, and be subject to all the restrictions upon, the President. The Vice
Presidents shall have such other powers and perform such other duties as from
time to time may be prescribed for them, respectively, by the Board of Directors
or these Bylaws.
Section 5. Secretary and Assistant Secretaries.
The Secretary shall record or cause to be recorded, in books provided
for the purpose, minutes of the meetings of the stockholders, the Board of
Directors and all committees of the Board of Directors; see that all notices are
duly given in accordance with the provisions of these Bylaws as required by law;
be custodian of all corporate records (other than financial) and of the seal of
the Corporation, and have authority to affix the seal to all documents requiring
it and attest to the same; give, or cause to be given, notice of all meetings of
the stockholders and special meetings of the Board of Directors; and, in
general, shall perform all duties incident to the office of Secretary and such
other duties as may, from time to time, be assigned to him by the Board of
Directors or by the President. At the request of the Secretary, or in the
Secretary's absence or disability, any Assistant Secretary shall perform any of
the duties of the Secretary and, when so acting, shall have all the powers of,
and be subject to all the restrictions upon, the Secretary.
Section 6. Treasurer and Assistant Treasurers.
The Treasurer shall keep or cause to be kept the books of account of the
Corporation and shall render statements of the financial affairs of the
Corporation in such form and as often as required by the Board of Directors or
the President. The Treasurer, subject to the order of the Board of Directors,
shall have custody of all funds and securities of the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. He shall disburse the funds of the Corporation as may be ordered by
the Board of Directors, taking proper vouchers for such disbursements. The
Treasurer shall perform all other duties commonly incident to his office and
shall perform such other duties and have such other powers as the Board of
Directors or the President shall designate from time to time. At the request of
the Treasurer, or in the Treasurer's absence or disability, any Assistant
Treasurer may perform any of the duties of the Treasurer and, when so acting,
shall have all the powers of, and be subject to all the restrictions upon, the
Treasurer. Except where by law the signature of the Treasurer is required, each
of the Assistant Treasurers shall possess the same power as the Treasurer to
sign all certificates, contracts, obligations and other instruments of the
Corporation.
ARTICLE V
INDEMNIFICATION AND INSURANCE
Section 1. Actions Against Directors and Officers.
The Corporation shall indemnify to the full extent permitted by, and in
the manner permissible under, the laws of the State of Delaware any person made,
or threatened to be made, a party to an action or proceeding, whether criminal,
civil, administrative or investigative, by reason of the fact that such person
or such person's testator or intestate is or was a director or officer of the
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Corporation or any predecessor of the Corporation, or served any other
enterprise as a director or officer at the request of the Corporation or any
predecessor of the Corporation.
Section 2. Contract.
The provisions of Section 1 of this Article V shall be deemed to be a
contract between the Corporation and each director and officer who serves in
such capacity at any time while such Bylaw is in effect, and any repeal or
modification thereof shall not affect any rights or obligations then existing
with respect to any state of facts then or theretofore existing or any action,
suit or proceeding theretofore or thereafter based in whole or in part upon any
such state of facts.
Section 3. Nonexclusivity.
The rights of indemnification provided by this Article V shall not be
deemed exclusive of any other rights to which any director or officer of the
Corporation may be entitled apart from the provisions of this Article V.
Section 4. Indemnification of Employees and Agents.
The Board of Directors in its discretion shall have the power on behalf
of the Corporation to indemnify any person, other than a director or officer,
made a party to any action, suit or proceeding by reason of the fact that such
person or such person's testator or intestate, is or was an employee or agent of
the Corporation.
Section 5. Insurance.
Upon a resolution or resolutions duly adopted by the Board of Directors
of the Corporation, the Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
Corporation against any liability asserted against such person and incurred by
him in any capacity, or arising out of his capacity as such, whether or not the
Corporation would have the power to indemnify such person against such liability
under the provisions of applicable law, the Certificate of Incorporation or
these Bylaws.
ARTICLE VI
CERTIFICATES FOR SHARES AND THEIR TRANSFER
Section 1. Certificates for Shares.
Unless otherwise provided by a resolution of the Board of Directors, the
shares of the Corporation shall be represented by a certificate. The
certificates of stock of the Corporation shall be numbered and shall be entered
in the books of the Corporation as they are issued. They shall exhibit the
holder's name and number of shares and shall be signed by or in the name of the
Corporation by (a) the Chairman of the Board of Directors, the President or any
Vice President and (b) the Treasurer, any Assistant Treasurer, the Secretary or
any Assistant Secretary. Any or all of the signatures on a certificate may be
facsimile. In case any officer of the Corporation, transfer agent or registrar
who has signed, or whose facsimile signature has been placed upon such
certificate, shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, such
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certificate may nevertheless be issued by the Corporation with the same effect
as if he were such officer, transfer agent or registrar at the date of issuance.
Section 2. Classes of Stock.
(a) If the Corporation shall be authorized to issue more than one
class of stock or more than one series of any class, the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualification, limitations, or
restrictions of such preferences or rights shall be set forth in full or
summarized on the face or back of the certificate that the Corporation shall
issue to represent such class or series of stock; provided, that, except as
otherwise provided in Section 202 of the General Corporation Law of the State of
Delaware, in lieu of the foregoing requirements, there may be set forth on the
face or back of the certificate that the Corporation shall issue to represent
such class or series of stock, a statement that the Corporation will furnish
without charge to each stockholder who so requests the powers, designations,
preferences and relative participating, optional or other special rights of each
class of stock or series thereof and the qualifications, limitations or
restrictions of such preferences or rights.
(b) Within a reasonable time after the issuance or transfer of
uncertificated stock, the Corporation shall send to the registered owner thereof
a written notice containing the information required to be set forth or stated
on certificates pursuant to applicable law (including Sections 151, 156, 202(a),
or 218(a) of the General Corporation Law of the State of Delaware) or a
statement that the Corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
or rights.
Section 3. Transfer.
Upon surrender to the Corporation or the transfer agent of the
Corporation of a certificate for shares duly endorsed or accompanied by proper
evidence of succession, assignation or authority to transfer, it shall be the
duty of the Corporation to issue a new certificate to the person entitled
thereto, cancel the old certificate and record the transaction upon its books.
Upon receipt of proper transfer instructions from the registered owner of
uncertificated shares, such uncertificated shares shall be cancelled, issuance
of new equivalent uncertificated shares or certificated shares shall be made to
the person entitled thereto and the transaction shall be recorded upon the
books of the Corporation.
Section 4. Record Owner.
The Corporation shall be entitled to treat the holder of record of any
share or shares of stock as the holder in fact thereof, and, accordingly, shall
not be bound to recognize any equitable or other claim to or interest in such
share on the part of any other person, whether or not it shall have express or
other notice thereof, save as expressly provided by the laws of the State of
Delaware.
Section 5. Lost Certificates.
The Board of Directors may direct a new certificate or certificates or
uncertificated shares to be issued in place of any certificate or certificates
theretofore issued by the Corporation alleged to
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have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming the certificate of stock to be lost, stolen or
destroyed. When authorizing such issue of a new certificate or certificates or
uncertificated shares, the Board of Directors may, in its discretion and as a
condition precedent to the issuance thereof, require the owner of such lost,
stolen or destroyed certificate or certificates, or his legal representative, to
advertise the same in such manner as the Board of Directors shall require and to
give the Corporation a bond in such sum as it may direct as indemnity against
any claim that it may be made against the Corporation with respect to the
certificate alleged to have been lost, stolen or destroyed.
ARTICLE VII
MISCELLANEOUS
Section 1. Record Date.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of the stockholders or any
adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights or entitled to exercise, any rights in
respect of any change, conversion or exchange of stock or for the purpose of any
other lawful action, the Board of Directors may fix, in advance, a record date,
which shall not be more than sixty (60) nor less than ten (10) days prior to the
date of such meeting nor more than sixty (60) days prior to any other action. If
not fixed by the Board of Directors, the record date shall be determined as
provided by law.
(b) A determination of stockholders of record entitled to notice
of or to vote at a meeting of the stockholders shall apply to any adjournments
of the meeting, unless the Board of Directors fixes a new record date for the
adjourned meeting.
(c) Holders of stock on the record date are entitled to notice
and to vote or to receive the dividend, distribution or allotment of rights or
to exercise the rights, as the case may be, notwithstanding any transfer of the
shares on the books of the Corporation after the record date, except as
otherwise provided by agreement or by law, the Certificate of Incorporation or
these Bylaws.
Section 2. Execution of Instruments.
The Board of Directors may, in its discretion, determine the method and
designate the signatory officer or officers, or other persons, to execute any
corporate instrument or document or to sign the corporate name without
limitation, except where otherwise provided by law, the Certificate of
Incorporation or these Bylaws. Such designation may be general or confined to
specific instances.
Section 3. Voting of Securities Owned by the Corporation.
All stock and other securities of other corporations held by the
Corporation shall be voted, and all proxies with respect thereto shall be
executed, by the person so authorized by resolution of the Board of Directors,
or, in the absence of such authorization, by the President.
13
<PAGE> 14
Section 4. Corporate Seal.
The Corporation shall have a corporate seal in such form as shall be
prescribed and adopted by the Board of Directors.
Section 5. Construction and Definitions.
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the General Corporation Law of the State of
Delaware and the Certificate of Incorporation shall govern the construction of
these Bylaws.
Section 6. Amendments.
Subject to the provisions of the Certificate of Incorporation and these
Bylaws, these Bylaws may be altered, amended or repealed at any annual meeting
of the stockholders (or at any special meeting thereof duly called for that
purpose) by a majority vote of the shares represented and entitled to vote
thereat; provided, that in the notice of any such meeting, notice of such
purpose shall be given. Subject to the laws of the State of Delaware, the
Certificate of Incorporation and these Bylaws, the Board of Directors may by
majority vote of the whole Board of Directors amend these Bylaws, or enact such
other Bylaws as in their judgment may be advisable for the regulation of the
conduct of the affairs of the Corporation.
Section 7.
The Corporation expressly elects not to be governed by Section 203 of
the General Corporation Law of Delaware.
14
<PAGE> 1
EXHIBIT 4.1
================================================================================
FIDELITY NATIONAL FINANCIAL, INC.
TO
________________________,
TRUSTEE
FORM OF INDENTURE
DATED AS OF
CONVERTIBLE DEBT SECURITIES
================================================================================
<PAGE> 2
FIDELITY NATIONAL FINANCIAL, INCORPORATED
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF ___________
<TABLE>
<CAPTION>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1)................................................ 609
(a)(2)...................................................... 609
(a)(3)...................................................... Not Applicable
(a)(4)...................................................... Not Applicable
(a)(5)...................................................... 609
(b)......................................................... 608, 610
(c)......................................................... Not Applicable
Section 311(a)................................................... 613
(b)......................................................... 613
(c)......................................................... Not Applicable
Section 312(a)................................................... 701, 702(a)
(b)......................................................... 702(b)
(c)......................................................... 702(c)
Section 313(a)................................................... 703(a)
(b)......................................................... 703(b)
(c)......................................................... 703(c)
(d)......................................................... 703(d)
Section 314(a)................................................... 704, 1009
(b)......................................................... Not Applicable
(c)(1)...................................................... 102
(c)(2)...................................................... 102
(c)(3)...................................................... Not Applicable
(d)......................................................... Not Applicable
(e)......................................................... 102
Section 315(a)................................................... 601
(b)......................................................... 602
(c)......................................................... 601
(d)......................................................... 601
(e)......................................................... 514
Section 316(a)................................................... 101
(a)(1)(A)................................................... 104(f), 502, 512
(a)(1)(B)................................................... 104(f), 513
(a)(2)...................................................... Not Applicable
(b)......................................................... 508
(c)......................................................... 104(f)
Section 317(a)(1)................................................ 503
(a)(2)...................................................... 504
(b)......................................................... 1003
Section 318(a)................................................... 107
(c)......................................................... 107
</TABLE>
- --------------------
Note: This reconciliation and tie shall not be deemed to be part of the
Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............1
Section 101. Definitions..............................................1
Section 102. Compliance Certificates and Opinions.....................9
Section 103. Form of Documents Delivered to Trustee..................10
Section 104. Acts of Holders.........................................10
Section 105. Notices, etc., to Trustee and Company...................12
Section 106. Notice to Holders; Waiver...............................13
Section 107. Conflict with Trust Indenture Act.......................13
Section 108. Effect of Headings and Table of Contents................13
Section 109. Successors and Assigns..................................13
Section 110. Separability Clause.....................................14
Section 111. Benefits of Indenture...................................14
Section 112. Governing Law...........................................14
Section 113. Legal Holidays..........................................14
Section 114. Exemption from Individual Liability.....................14
Section 115. Counterparts............................................15
ARTICLE II. CONVERTIBLE DEBT SECURITY FORMS....................................15
Section 201. Forms Generally.........................................15
Section 202. Form of Trustee's Certificate of Authentication.........15
Section 203. Convertible Debt Securities in Global Form..............16
ARTICLE III. THE CONVERTIBLE DEBT SECURITIES....................................16
Section 301. Amount Unlimited; Issuance in Series....................16
Section 302. Denominations...........................................19
Section 303. Execution, Authentication, Delivery and Dating..........19
Section 304. Temporary Convertible Debt Securities...................21
Section 305. Registration; Registration of Transfer and Exchange.....23
Section 306. Mutilated, Destroyed, Lost and Stolen Convertible Debt
Securities..............................................25
Section 307. Payment of Interest; Interest Rights Preserved..........26
Section 308. Persons Deemed Owners...................................27
Section 309. Cancellation............................................28
Section 310. Computation of Interest.................................28
ARTICLE IV. SATISFACTION AND DISCHARGE.........................................28
Section 401. Satisfaction and Discharge of Indenture.................28
Section 402. Application of Trust Money and Government Obligations...29
Section 403. Satisfaction, Discharge and Defeasance of Convertible
Debt Securities of any Series...........................30
ARTICLE V. REMEDIES...........................................................32
Section 501. Events of Default.......................................32
Section 502. Acceleration of Maturity; Rescission and Annulment......34
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.................................................35
Section 504. Trustee May File Proofs of Claim........................35
Section 505. Trustee May Enforce Claims without Possession of
Convertible Debt Securities.............................36
Section 506. Application of Money Collected..........................36
Section 507. Limitation on Suits.....................................37
</TABLE>
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<PAGE> 4
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest....................................37
Section 509. Restoration of Rights and Remedies......................37
Section 510. Rights and Remedies Cumulative..........................38
Section 511. Delay or Omission Not Waiver............................38
Section 512. Control by Holders of Convertible Debt Securities.......38
Section 513. Waiver of Past Defaults.................................38
Section 514. Undertaking for Costs...................................39
Section 515. Waiver of Stay or Extension Laws........................39
ARTICLE VI. THE TRUSTEE........................................................39
Section 601. Certain Duties and Responsibilities.....................39
Section 602. Notice of Default.......................................40
Section 603. Certain Rights of Trustee...............................40
Section 604. Not Responsible for Recitals or Issuance of Convertible
Debt Securities.........................................41
Section 605. May Hold Convertible Debt Securities....................41
Section 606. Money Held in Trust.....................................41
Section 607. Compensation and Reimbursement..........................42
Section 608. Disqualification; Conflicting Interests.................42
Section 609. Corporate Trustee Required; Eligibility.................43
Section 610. Resignation and Removal; Appointment of Successor.......43
Section 611. Acceptance of Appointment by Successor..................45
Section 612. Merger, Conversion, Consolidation or Succession to
Business................................................46
Section 613. Preferential Collection of Claims Against Company.......46
Section 614. Authenticating Agent....................................46
ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..................48
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.................................................48
Section 702. Preservation of Information; Communications to Holders..48
Section 703. Reports by Trustee......................................49
Section 704. Reports by Company......................................49
ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..............49
Section 801. Company May Consolidate, etc. Only on Certain Terms.....49
Section 802. Successor Corporation Substituted.......................50
Section 803. Conveyance or Transfer to a Wholly-Owned Restricted
Subsidiary..............................................50
ARTICLE IX. SUPPLEMENTAL INDENTURES............................................50
Section 901. Supplemental Indentures Without Consent of Holders......50
Section 902. Supplemental Indentures with Consent of Holders.........51
Section 903. Execution of Supplemental Indentures....................53
Section 904. Effect of Supplemental Indentures.......................53
Section 905. Conformity with Trust Indenture Act.....................53
Section 906. Reference in Convertible Debt Securities to Supplemental
Indentures..............................................53
ARTICLE X. COVENANTS..........................................................53
Section 1001. Payment of Principal, Premium and Interest..............53
Section 1002. Maintenance of Office or Agency.........................53
Section 1003. Money for Convertible Debt Securities Payments to Be
Held in Trust...........................................54
</TABLE>
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<PAGE> 5
TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 1004 Corporate Existence.....................................55
Section 1005. Maintenance of Properties...............................55
Section 1006. Officer's Certificate as to Default.....................56
Section 1007. Waiver of Certain Covenants.............................56
ARTICLE XI. REDEMPTION OF CONVERTIBLE DEBT SECURITIES...............57
Section 1101. Applicability of Article................................57
Section 1102. Election to Redeem; Notice to Trustee...................57
Section 1103. Selection by Trustee of Convertible Debt Securities to
be Redeemed.............................................57
Section 1104. Notice of Redemption....................................58
Section 1105. Deposit of Redemption Price.............................58
Section 1106. Convertible Debt Securities Payable on Redemption Date..59
Section 1107. Convertible Debt Securities Redeemed in Part............59
ARTICLE XII. CONVERSION OF CONVERTIBLE DEBT SECURITIES..........................59
Section 1201. Conversion Privilege....................................59
Section 1202. Conversion Procedure....................................60
Section 1203. Fractional Shares.......................................61
Section 1204. Taxes on Conversion.....................................61
Section 1205. Company to Provide Stock................................61
Section 1206. Adjustment of Conversion Price..........................62
Section 1207. No Adjustment...........................................65
Section 1208. Other Adjustments.......................................65
Section 1209. Adjustments for Tax Purposes............................65
Section 1210. Adjustments by the Company..............................65
Section 1211. Notice of Adjustment....................................65
Section 1212. Notice of Certain Transactions..........................66
Section 1213. Effect of Reclassifications, Consolidations, Mergers or
Sales on Conversion Privilege...........................66
Section 1214. Trustee's Disclaimer....................................67
ARTICLE XIII. SUBORDINATION OF CONVERTIBLE DEBT SECURITIES......................67
Section 1301. Agreement to Subordinate................................67
Section 1302. No Payment on Convertible Debt Securities if Senior
Debt in Default.........................................68
Section 1303. Distribution on Acceleration of Convertible Debt
Securities; Dissolution and Reorganization;
Subrogation.............................................69
Section 1304. Reliance by Senior Debt on Subordination Provisions.....72
Section 1305. No Waiver of Subordination Provisions...................72
Section 1306. Trustee's Relation to Senior Debt.......................72
Section 1307. Other Provisions Subject Hereto.........................73
ARTICLE XIV. REPAYMENT AT THE OPTION OF HOLDERS.................................73
Section 1401. Applicability of Article................................73
Section 1402. Repayment of Convertible Debt Securities................73
Section 1403. Exercise of Option; Notice..............................74
Section 1404. Election of Repayment by Remarketing Entities...........74
Section 1405. Securities Payable on the Repayment Date................74
ARTICLE XV. MEETINGS OF HOLDERS OF CONVERTIBLE DEBT SECURITIES.................75
Section 1501. Purposes for Which Meetings May Be Called...............75
</TABLE>
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TABLE OF CONTENTS
(CONTINUED)
<TABLE>
<CAPTION>
PAGE
<S> <C> <C>
Section 1502. Call, Notice and Place of Meetings......................75
Section 1503. Persons Entitled to Vote at Meetings....................75
Section 1504. Quorum; Action..........................................75
Section 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings.............................................76
Section 1506. Counting Votes and Recording Action of Meetings.........77
ARTICLE XVI. DEFEASANCE.........................................................78
Section 1601. Termination of Company's Obligations....................78
Section 1602. Repayment to Company....................................79
Section 1603. Indemnity for Government Obligations....................79
</TABLE>
-iv-
<PAGE> 7
INDENTURE (the "Indenture") dated as of ___________, by and
between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation (hereinafter,
the "Company"), having its principal place of business at 17911 Von Karman
Avenue, Irvine, California 92614 and __________________________________
(hereinafter, the "Trustee"), having its Corporate Trust Office at
_______________________________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its convertible
debentures, notes, bonds and other evidences of indebtedness (hereinafter, the
"Convertible Debt Securities").
All things necessary have been done to make this Indenture a
valid agreement of the Company, in accordance with its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Convertible Debt Securities of any series created and issued on or after the
date hereof by the Holders thereof, it is mutually covenanted and agreed, for
the benefit of all Holders of such Convertible Debt Securities or of any such
series, as follows:
ARTICLE I.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule or regulation under the Trust Indenture Act,
either directly or by reference therein, as in force at the date as of which
this instrument was executed, except as provided in Section 905, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "hereinafter," "herein", "hereof" and "hereunder"
and other words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
1
<PAGE> 8
Certain terms, used principally in Article VI, are defined in that
Article.
"Act" when used with respect to any Holder has the meaning specified in
Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities by contract or otherwise, and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to act
on behalf of the Trustee to authenticate Convertible Debt Securities.
"Authorized Newspapers" means nationally-recognized newspapers
customarily published on each Business Day, whether or not published on
Saturdays, Sundays or holidays, and of general circulation in the City of New
York, New York, and the City of Los Angeles, California, respectively, or in the
financial communities of such places. Where successive publications are required
to be made in Authorized Newspapers, the successive publications may be made in
the same or in different newspapers in the same cities meeting the foregoing
requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of the Company,
or the executive or any other committee of that board duly authorized to act in
respect hereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. Where any provision of this
Indenture refers to action to be taken pursuant to a Board Resolution (including
the establishment of any series of the Convertible Debt Securities and the forms
and terms thereof), such action may be taken by any committee of the Board or
the Company or any officer or employee of the Company authorized to take such
action by a Board Resolution.
"Business Day" means any day which is not a Saturday or Sunday and which
is not a legal holiday or a day on which banking institutions, trust companies,
or securities exchange, as the case may be, are authorized or obligated by law
or executive order to close.
"Capital Stock" means any and all shares, interests, participations,
rights, or other equivalents (however designated) of equity interests in any
entity, including, without limitation, corporate stock and partnership
interests.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Common Stock" means the common stock of the Company as the same exists
at the date of the execution of this Indenture, or as such stock may be
constituted from time to time.
2
<PAGE> 9
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, except as
otherwise provided in this Indenture, a written request or order signed in the
name of the Company by the Chairman of the Board and Chief Executive Officer,
the Chief Operating Officer, the President or a Vice President (any references
to a Vice President of the Company herein shall be deemed to include any Vice
President of the Company whether or not designated by a number or word or words
added before or after the title "Vice President"), the Chief Financial Officer
and Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company or by another officer of the Company duly authorized to sign by a
Board Resolution, and delivered to the Trustee.
"Conversion Agent" means any Person authorized by the Company to convert
the principal amount of Convertible Debt Securities (or any portion thereof that
is an integral multiple of $1,000) into shares of Company's Common Stock, in
accordance with Article XII of this Indenture.
"Conversion Date" means the date on which a Holder of Convertible Debt
Securities satisfies all the requirements, specified in the convertible Debt
Securities, to convert the Convertible Debt Securities to shares of the
Company's Common Stock in accordance with Article XII of this Indenture.
"Conversion Price" means, with regard to the conversion of Convertible
Debt Securities to the Company's Common Stock, the conversion price in effect on
the Conversion Date. The initial Conversion Price is stated in the Convertible
Debt Securities and is subject to adjustment as provided for in Article XII of
this Indenture.
"Conversion Shares" means the shares of Common Stock issuable upon a
conversion of the Convertible Debt Securities pursuant to Article XII of this
Indenture.
"Convertible Debt Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Convertible Debt
Securities authenticated and delivered under this Indenture.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of original execution of this Indenture is located at
_________________________ _______________________________________, Attention:
________________________, except that, with respect to presentation of the
Convertible Debt Securities for payment or registration of transfers or
exchanges and the location of the Security Registrar, such term means the office
or agency of the Trustee at which at any particular time its corporate agency
business shall be conducted, which at the date of original execution of this
Indenture is located at _____________ ______________________________________.
"Corporation" includes corporations, associations, companies and
business trusts.
3
<PAGE> 10
"Daily Market Price" means the price of a share of the Company's Common
Stock on the relevant date, determined (i) on the basis of the last reported
sale price of the Common Stock as reported on the New York Stock Exchange
(hereinafter, "NYSE") or if the Common Stock is not then listed on the NYSE, as
reported on such other national securities exchange upon which the Common Stock
is listed; or (ii) if there is no such reported sale on the day in question, on
the basis of the average of the trading prices as reported on one Trading Day
before the day in question and one Trading Day after the day in question; or
(iii) if the Common Stock is not listed on the NYSE or any such other national
securities exchange, on the basis of the average of the high bid and low asked
quotations on the day in question in the over-the-counter market, as reported by
the National Association of Securities Dealers Automated Quotation System, or if
not so quoted, as reported by the National Quotation Bureau, Incorporated, or a
similar organization.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Convertible Debt Securities of
any series issuable or issued in the form of a Global Security, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Convertible Debt
Securities of any such series shall mean the Depositary with respect to the
Convertible Debt Securities of that series.
"Designated Senior Debt" means any Senior Debt which, at the date of
determination, has an aggregate principal amount outstanding of, or commitments
to lend up to, at least $___________ and is specifically designated in the
instrument evidencing or governing such Senior Debt as "Designated Senior Debt"
for purposes of this Indenture (provided, however, that such instrument may
place limitations and conditions on the right of such Senior Debt to exercise
the rights of Designated Senior Debt).
"Distribution Date" means, within regard to the adjustment of the
Conversion Price, the date for the distribution to the Holders of Rights of
separate certificates evidencing such Rights.
"Distribution Record Date" means, in the event that the Company, by
dividend or otherwise, distributes cash to Holders of its Common Stock
(including any distributions of cash out of current or retained earnings of the
Company, but excluding any cash that is distributed as part of a distribution
requiring a Conversion Price adjustment pursuant to Section 1206(c)), the date
fixed by the Company for determining the Holders entitled to such distribution.
"Dollar" or "$" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"Event of Default" has the meaning specified in Section 501.
"Excess Payment" means the excess of (x) the aggregate of the cash and
fair market value of other consideration paid by the Company or any of its
subsidiaries with respect to the shares acquired in a tender offer or other
negotiated transaction over (y) the Daily Market Price
4
<PAGE> 11
of such acquired shares on the Trading Day immediately after giving effect to
the completion of such tender offer or other negotiated transaction.
"GAAP" means, as of the date of any determination with respect thereto,
generally accepted accounting principles as used by the Financial Accounting
Standards Board and/or the American Institute of Certified Public Accountants,
consistently applied and maintained throughout the periods indicated.
"Global Exchange Agent" has the meaning specified in Section 304.
"Global Exchange Date" has the meaning specified in Section 304.
"Global Security" means a Convertible Debt Security issued to evidence
all or part of a series of Convertible Debt Securities in accordance with
Section 303.
"Government Obligations" means, in respect of any series of Convertible
Debt Securities, securities of (i) the United States Government and/or the
government of any State, possession, or jurisdiction of the United States or
(ii) government agencies backed by the full faith and credit of such
aforementioned governments.
"Holder", with respect to a Registered Security, means a Person in whose
name such Registered Security is registered in the Security Register.
"Indebtedness" means (i) all items of indebtedness or liability (except
capital and surplus) which in accordance with GAAP would be included in
determining total liabilities as shown on the liability side of a balance sheet
as at the date as of which indebtedness is to be determined, (ii) indebtedness
secured by any Mortgage existing on property owned subject to such Mortgage,
whether or not the indebtedness secured thereby shall have been assumed, and
(iii) guarantees, endorsements (other than for purposes of collection) and other
contingent obligations in respect of, or to purchase or otherwise acquire,
indebtedness of others, unless the amount thereof is included in indebtedness
under the preceding clause (i) or (ii); provided, however, that any obligations
or guarantees of obligations in respect of lease rentals, whether or not such
obligations or guarantees of obligations would be included as liabilities on a
consolidated balance sheet of the Company and its Restricted Subsidiaries, shall
not be included in Indebtedness.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented, amended or restated by or pursuant to one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and, unless the context otherwise requires, shall include the
terms of a particular series of Convertible Debt Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", with respect to any Convertible Debt Security,
means the Stated Maturity of an installment of interest on such Convertible Debt
Security.
5
<PAGE> 12
"Maturity", when used with respect to any Convertible Debt Security,
means the date on which the principal of such Convertible Debt Security becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption, repayment at the option of
the Holder or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board and Chief Executive Officer, the Chief Operating Officer, the
President or a Vice President, and by the Chief Financial Officer and Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except
as otherwise expressly provided in this Indenture) be an employee of or counsel
for the Company, or who may be other counsel acceptable to the Trustee, which is
delivered to the Trustee.
"Original Issue Discount Security" means any Convertible Debt Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"Outstanding", when used with respect to Convertible Debt Securities,
means, as of the date of determination, all Convertible Debt Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Convertible Debt Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Convertible Debt Securities or portions thereof for whose
payment or redemption money or Government Obligations in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Convertible Debt Securities; provided, however,
that if such Convertible Debt Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
(iii) Convertible Debt Securities in exchange for or in lieu of
which other Convertible Debt Securities have been authenticated and
delivered, or which have been paid, pursuant to this Indenture;
provided, however, that in determining whether the Holders of the
requisite principal amount of Convertible Debt Securities Outstanding
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Convertible Debt Securities owned by the
Company or any other obligor upon the Convertible Debt Securities or any
Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon such request, demand,
authorization, direction, notice, consent or waiver, only Convertible
Debt Securities which the Trustee knows to be so owned shall be so
disregarded. Convertible Debt
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Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such
Convertible Debt Securities and that the pledgee is not the Company or
any other obligor upon the Convertible Debt Securities or any Affiliate
of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Convertible Debt
Securities on behalf of the Company.
"Payment Blockage Notice" and "Payment Blockage Period's have the
meaning specified in Section 1302.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Convertible Debt
Securities of any series means any place where the principal of (and premium, if
any) and interest on the Convertible Debt Securities of that series are payable
as specified as contemplated by Section 301, and/or any place where a Person
holding or entitled to such Convertible Debt Securities may transfer, exchange,
or present them for conversion pursuant to Section 1002.
"Predecessor Security" of any particular Convertible Debt Security means
every previous Convertible Debt Security evidencing all or a portion of the same
debt as that evidenced by such particular Convertible Debt Security; and, for
the purposes of this definition, any Convertible Debt Security authenticated and
delivered under Section 306 in lieu of a lost, destroyed or stolen Convertible
Debt Security shall be deemed to evidence the same debt as the lost, destroyed
or stolen Convertible Debt Security.
"Purchase Date" means, in the event that the Company or any Subsidiary
consummates a tender offer or other negotiated transaction for all or any
portion of the Company's Common Stock, the date of payment of such negotiated
transaction consideration or expiration of such tender offer, as the case may
be.
"Redemption Date", when used with respect to any Convertible Debt
Security to be redeemed, means the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price", when used with respect to any Convertible Debt
Security to be redeemed, means the price at which it is to be redeemed pursuant
to this Indenture.
"Registered Security" means any Convertible Debt Security in the form of
Registered Securities established pursuant to Section 201 which is registered in
the Security Register, or following a conversion of Convertible Debt Securities
to the Company's Common Stock, any Common Stock so registered.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
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"Remarketing Entity", when used with respect to Convertible Debt
Securities of any series which are repayable at the option of the Holders
thereof before their Stated Maturity, means any person designated by the Company
to purchase any such Convertible Debt Securities.
"Repayment Date", when used with respect to any Convertible Debt
Security to be repaid upon exercise of an option for repayment by the Holder,
means the date fixed for such repayment pursuant to this Indenture.
"Repayment Price", when used with respect to any Convertible Debt
Security to be repaid upon exercise of an option for repayment by the Holder,
means the price at which it is to be repaid pursuant to this Indenture.
"Representative" means the trustee, agent or representative (if any) for
an issue of Senior Debt.
"Responsible Officer" when used with respect to the Trustee, means any
officer of the Trustee assigned by it to administer its corporate trust matters.
"Rights" means rights or warrants, distributed by the Company, to
subscribe for additional shares of the Company's Capital Stock, other than the
Common Stock referred to in this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" means the principal of, interest on and other amounts due
on Indebtedness of the Company, whether outstanding on the date of the Indenture
or thereafter created, incurred, assumed, or guaranteed by the Company; unless,
in the instrument creating or evidencing or pursuant to which Indebtedness is
outstanding, it is expressly provided that such Indebtedness is not senior in
right of payment to the Convertible Debt Securities. Senior Debt includes, with
respect to the obligations described above, interest accruing, pursuant to the
terms of such Senior Debt, on or after the filing of any petition in bankruptcy
or for reorganization relating to the Company, whether or not post-filing
interest is allowed in such proceeding, at the rate specified in the instrument
governing the relevant obligation. Notwithstanding anything to the contrary in
the foregoing, Senior Debt shall not include: (a) Indebtedness of or amounts
owed by the Company for compensation to employees, or for goods, services or
materials purchased in the ordinary course of business; (b) Indebtedness of the
Company to a Subsidiary of the Company or any officer, director or employee of
the Company or any Subsidiary thereof, or (c) any liability for Federal, state,
local or other taxes owed or owing by the Company.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Convertible Debt
Security or any installment of interest thereon, means the date specified in
such Convertible Debt Security as the fixed date on which the principal of such
Convertible Debt Security or such installment is due and payable.
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"Subsidiary" means any corporation more than 50% of the outstanding
shares of Voting Stock, except for directors' qualifying shares, of which shall
at the time be owned, directly or indirectly, by the Company or by one or more
of the Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trading Day" means (a) if the applicable security is listed or admitted
for trading on the New York Stock Exchange (hereinafter, "NYSE") or another
national securities exchange, a day on which the NYSE or another national
securities exchange is open for business, or (b) if the applicable security is
not so listed or admitted for trading, any day other than a Saturday or Sunday
or a day on which banking institutions or trust companies are authorized or
obligated by law or executive order to close.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed, except as provided in
Section 905.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to the Convertible
Debt Securities of any series shall mean the Trustee with respect to Convertible
Debt Securities of that series.
"United States" means the United States of America (including the
District of Columbia) and its possessions and jurisdictions.
"Voting Stock", as applied to the stock (or the equivalent thereof) of
any corporation, means stock (or the equivalent thereof) of any class or
classes, however designated, entitled in the ordinary course to vote in an
election of directors of such corporation, other than stock (or such equivalent)
having such power only by reason of the happening of a contingency.
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee, if so requested by the Trustee, an Officers' Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any, have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to enable him
or her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is
based is erroneous. Any such certificate or Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinions or representations with respect to such
matters is erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both are
delivered to the Trustee, and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding by any Person of a Convertible Debt
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 601) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section. The
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record of any meeting of Holders of Convertible Debt Securities shall be proved
in the manner provided in Section 1606.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any manner which the Trustee deems
sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Convertible Debt Security
shall bind every future holder of the same Convertible Debt Security and the
Holder of every Convertible Debt Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, suffered or omitted by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Convertible
Debt Security.
(e) For purposes of determining the principal amount of
Outstanding Convertible Debt Securities of any series the Holders of which are
required, requested or permitted to give any request, demand, authorization,
direction, notice, consent, waiver or take any other Act under this Indenture,
each Original Issue Discount Security shall be deemed to have the principal
amount determined by the Trustee that could be declared to be due and payable
pursuant to the terms of such Original Issue Discount Security as of the date
there is delivered to the Trustee and, where it is hereby expressly required, to
the Company, such Act by Holders of the required aggregate principal amount of
the Outstanding Convertible Debt Securities of such series.
(f) The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Convertible Debt Securities of any
series entitled to give, make or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this
Indenture to be given, made or taken by Holders of Convertible Debt Securities
of such series, provided that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Convertible Debt Securities of the relevant series on such record
date, and no other Holders, shall be entitled to take the relevant action,
whether or not such Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date (as defined below) by Holders of the requisite
principal amount of Outstanding Convertible Debt Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Convertible Debt Securities of the relevant series on the date such
action is taken. Promptly after any record date is set pursuant to this
paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be
given to the Trustee in writing and to each
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Holder of Convertible Debt Securities of the relevant series in the manner set
forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Convertible Debt Securities of any series
entitled to join in the giving or making of (i) any notice of an Event of
Default, (ii) any declaration of acceleration referred to in Section 502, (iii)
any request to institute proceedings referred to in Section 507(2), or (iv) any
direction referred to in Section 512, in each case with respect to Convertible
Debt Securities of such series. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Convertible Debt Securities of such series
on such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Convertible Debt Securities of
such series on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a
record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person
be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Convertible Debt Securities of the relevant series on the
date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Company's expense, shall cause notice of
such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder of Convertible
Debt Securities of the relevant series in the manner set forth in Section 106.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record dates may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Convertible Debt Securities of the relevant series in the
manner set forth in Section 106, on or prior to the existing Expiration Date. If
an Expiration Date is not designated with respect to any record date set
pursuant to this Section, the party hereto which set such record date shall be
deemed to have initially designated the 180th day after such record date as the
Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph.
Section 105. Notices, etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided), if in writing and sent by certified mail or by courier to the Trustee
at its Corporate Trust Office, or
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(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and sent by certified mail or by courier to the Company
addressed to the attention of its Corporate Secretary at the address of its
principal office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given to Holders of Registered Securities if in writing and mailed, first-class
postage prepaid, to each Holder of a Registered Security affected by such event,
at such Holder's address as it appears in the Security Register, not later than
the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice.
In case, by reason of the suspension of or irregularities in regular
mail service or for any other reason, it shall be impossible or impracticable to
mail notice of any event to Holders of Registered Securities when said notice is
required to be given pursuant to any provision of this Indenture or of the
Convertible Debt Securities, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice. In any case where notice to Holders of Registered Securities is to be
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Registered Security shall affect
the sufficiency of such notice with respect to other Holders of Registered
Securities.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
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Section 110. Separability Clause.
In case any provision in this Indenture or in the Convertible
Debt Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Convertible Debt Securities shall
give to any Person, other than the parties hereto and their successors
hereunder, any Paying Agent and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 112. Governing Law.
This Indenture and the Convertible Debt Securities shall be governed by
and construed in accordance with the laws of the State of Delaware.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment
Date or Stated Maturity of any Convertible Debt Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this
Indenture or of the Convertible Debt Securities) payment of interest or
principal (and premium, if any) need not be made at such Place of Payment on
such date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or at the Stated Maturity, and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date, Redemption Date, Repayment Date or Stated Maturity, as the case
may be.
Section 114. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of any Convertible Debt Security, or for any claim based thereon
or otherwise in respect thereof, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company,
whether by virtue of any constitution, statute or rule of law, or by the
enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations of the Company, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators,
stockholders, officers or directors, as such, of the Company or of any successor
corporation, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Convertible Debt Securities or
implied therefrom; and that any and all such personal liability, either at
common law or in equity or by constitution or statute, of, and any and all such
rights and claims against, every such incorporator, stockholder, officer or
director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements
contained in this Indenture or in any of the Convertible Debt Securities,
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are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Convertible Debt Securities.
Section 115. Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
ARTICLE II.
CONVERTIBLE DEBT SECURITY FORMS
Section 201. Forms Generally.
The Registered Securities of each series shall be in substantially the
form (including temporary or permanent global form) as shall be established in
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon, as may be required to comply with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Convertible Debt Securities, as evidenced by their
signatures on the Convertible Debt Securities. If the form of Convertible Debt
Securities of any series (including any such Global Security) is established by
action taken pursuant to a Board Resolution, a copy of an appropriate record of
such action shall be certified by the Corporate Secretary or an Assistant
Corporate Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Convertible Debt Securities.
The definitive Convertible Debt Securities shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Convertible Debt
Securities, as evidenced by the execution of such Convertible Debt Securities.
Section 202. Form of Trustee's Certificate of Authentication.
This is one of the Convertible Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
_______________________________
as Trustee
By_____________________________
Authorized Officer
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Section 203. Convertible Debt Securities in Global Form.
If Convertible Debt Securities of a series are issuable in whole or in
part in global form, as specified as contemplated by Section 301, then,
notwithstanding clause (9) of Section 301 and the provisions of Section 302,
such Global Security shall represent such of the outstanding Convertible Debt
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Convertible Debt Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Convertible Debt Securities represented thereby may from time to time be reduced
to reflect exchanges. Any endorsement of a Global Security to reflect the
amount, or any increase or decrease in the amount, of Outstanding Convertible
Debt Securities represented thereby shall be made in such manner and upon
instructions given by such Person or Persons as shall be specified therein or in
the Company Order to be delivered to the Trustee pursuant to Section 303 or
Section 304.
The provisions of the last sentence of Section 303(g) shall apply to any
Convertible Debt Securities represented by a Convertible Debt Security in global
form if such Convertible Debt Security was never issued and sold by the Company
and the Company delivers to the Trustee the Convertible Debt Security in global
form together with written instructions (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) with respect to the
reduction in the principal amount of Convertible Debt Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303(g).
Global Securities shall be issued in registered form and in permanent
form.
ARTICLE III.
THE CONVERTIBLE DEBT SECURITIES
Section 301. Amount Unlimited; Issuance in Series.
The aggregate principal amount of Convertible Debt Securities which may
be authenticated and delivered under this Indenture is unlimited.
The Convertible Debt Securities may be issued in one or more series.
There shall be established in or pursuant to a Board Resolution, and set forth
in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Convertible Debt Securities of any
series:
(1) the title of the Convertible Debt Securities of the series
(which shall distinguish the Convertible Debt Securities of the series from all
other Convertible Debt Securities);
(2) the limit, if any, upon the aggregate principal amount of the
Convertible Debt Securities of the series which may be authenticated and
delivered under this Indenture (except for Convertible Debt Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Convertible Debt Securities of the series pursuant to
Sections 304, 305, 306, 906, 1107 or 1503 and except for any Convertible Debt
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
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(3) the date or dates on which the principal and premium, if any,
of the Convertible Debt Securities of the series are payable;
(4) the rate or rates, if any, at which the Convertible Debt
Securities of the series shall bear interest, or the method or methods by which
such rate or rates may be determined, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable, the Regular Record Date for the interest payable on any Registered
Security on any Interest Payment Date and the circumstances, if any, in which
the Company may defer interest payments;
(5) the place or places where, subject to the provisions of
Section 1002, the principal of (and premium, if any) and interest on Convertible
Debt Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, Convertible Debt
Securities of the series may be surrendered for exchange and notices and demands
to or upon the Company in respect of the Convertible Debt Securities of the
series and this Indenture may be served and where notices to Holders pursuant to
Section 106 will be published;
(6) if applicable, the period or periods within which or the date
or dates on which, the price or prices at which and the terms and conditions
upon which Convertible Debt Securities of the series may be redeemed, in whole
or in part, at the option of the Company;
(7) the manner of calculating the Conversion Price and any
adjustments thereto, events or circumstances that may result in adjustments of
the Conversion Price, the amount of any premium payable in connection with
conversion, the date or dates on which conversion may be made, and the places at
which the Convertible Debt Securities may be exchanged for shares of Common
Stock (or for shares of Common Stock and certificates evidencing the unconverted
portion of the Convertible Debt Securities) and cash may be received in lieu of
fractional shares of Common Stock;
(8) events or circumstances that will constitute Events of
Default or give the holders of Convertible Debt Securities the right to
accelerate maturity of the Convertible Debt Securities to the extent not already
set forth herein;
(9) the obligation, if any, of the Company to redeem, repay or
purchase Convertible Debt Securities of the series pursuant to any sinking fund
or analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices at which and the terms and conditions
upon which Convertible Debt Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(10) whether the Convertible Debt Securities of the series shall
be issued in whole or in part in the form of a Global Security or Securities
and, in such case, the Depositary and Global Exchange Agent for such Global
Security or Securities, whether such global form shall be permanent or temporary
and, if applicable, the Global Exchange Date;
(11) if Convertible Debt Securities of the series are to be
issuable initially in the form of a temporary Global Security, the circumstances
under which the temporary Global Security can be exchanged for definitive
Convertible Debt Securities and whether the definitive
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Convertible Debt Securities will be in global form and whether interest in
respect of any portion of such Global Security payable in respect of an Interest
Payment Date prior to the Global Exchange Date shall be paid to any clearing
organization with respect to a portion of such Global Security held for its
account and, in such event, the terms and conditions (including any
certification requirements) upon which any such interest payment received by a
clearing organization will be credited to the Persons entitled to interest
payable on such Interest Payment Date if other than as provided in this Article
III;
(12) the denominations in which any Registered Securities of the
series shall be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
(13) if other than the principal amount thereof, the portion of
the principal amount of Convertible Debt Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(14) if the amount of payments of principal of (and premium, if
any) or interest on the Convertible Debt Securities of the series may be
determined with reference to an index, the manner in which such amounts shall be
determined;
(15) any other covenant or warranty included for the benefit of
the Convertible Debt Securities of the series in addition to (and not
inconsistent with) those set forth herein for the benefit of Convertible Debt
Securities of all series, or any other covenant or warranty included for the
benefit of Convertible Debt Securities of the series in lieu of any covenant or
warranty set forth herein for the benefit of Convertible Debt Securities of all
series, or any provision that any covenant or warranty set forth herein for the
benefit of Convertible Debt Securities of all series shall not be for the
benefit of Convertible Debt Securities of such series, or any combination of
such covenants, warranties or provisions and the applicability, if any, of the
provisions of Section 1010 to such covenants and warranties;
(16) the terms and conditions, if any, pursuant to which the
Company's obligations under this Indenture may be terminated through the deposit
of money or Government Obligations as provided in Articles IV and XVII;
(17) the Person or Persons who shall be Security Registrar for
the Convertible Debt Securities of such series if other than the Trustee, and
the place or places where the Security Register for such series shall be
maintained and the Person or Persons who will be the initial Paying Agent or
Agents, if other than the Trustee; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Convertible Debt Securities of any one series shall be substantially
identical except, in the case of Registered Securities, as to denomination and
except as may otherwise be provided in or pursuant to such Board Resolution and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto.
Convertible Debt Securities of any particular series may be issued at
various times, with different dates on which the principal or any installment of
principal is payable, with different
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rates of interest, if any, or different methods by which rates of interest may
be determined, with different dates on which such interest may be payable and
with different Redemption or Repayment Dates; provided, however, that all
Convertible Debt Securities be denominated and payable in only U.S. dollars.
If any of the terms of a series of Convertible Debt Securities are
established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the series.
Section 302. Denominations.
Convertible Debt Securities of each series shall be issuable in such
form and denominations as shall be specified in the form of Convertible Debt
Security for such series approved or established pursuant to Section 201 or in
the Officers' Certificate delivered pursuant to Section 301. In the absence of
any specification with respect to the Convertible Debt Securities of any series,
the Registered Securities of such series, if any, shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
(a) The Convertible Debt Securities shall be executed on behalf
of the Company by its Chairman of the Board and Chief Executive Officer, the
Chief Operating Officer, the President or a Vice President, and by its Treasurer
or one of its Assistant Treasurers or its Secretary or one of its Assistant
Secretaries under its corporate seal reproduced thereon. The signature of any of
these officers on the Convertible Debt Securities may be manual or facsimile.
Convertible Debt Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Convertible Debt Securities of any series or did not hold such offices
at the date of such Convertible Debt Securities.
(b) At any time and from time to time after the execution and
delivery of this Indenture, Convertible Debt Securities of any series may be
executed by the Company and delivered to the Trustee for authentication, and,
except as otherwise provided in this Article III, shall thereupon be
authenticated and delivered by the Trustee upon Company Order, without any
further action by the Company; provided, however, that in the case of a
temporary Global Security, only if the Company or its agent shall have received
the certification required pursuant to Sections 304(b)(iii) and (iv), unless
such certification shall have been provided earlier pursuant to section
304(b)(v) hereof, and only if the Company has no reason to know that such
certification is false.
To the extent authorized in or pursuant to a Board Resolution and set
forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, such written Company Order may be given by any one officer
or employee of the Company, may be electronically transmitted, and may provide
instructions as to registration of holders, principal amounts, rates of
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<PAGE> 26
interest, maturity dates and other matters contemplated by such Board Resolution
and Officers' Certificate or supplemental indenture to be so instructed in
respect thereof. Before authorizing and delivering the first Convertible Debt
Securities of any series (and upon request of the Trustee thereafter), the
Company shall deliver to the Trustee (i) the certificates called for under
Sections 201 and 301 hereof and (ii) an Opinion of Counsel described in the next
sentence.
In authenticating such Convertible Debt Securities, and accepting the
additional responsibilities under this Indenture in relation to any such
Convertible Debt Securities, the Trustee shall be entitled to receive, prior to
the initial authentication of such Convertible Debt Securities, and (subject to
Section 601) shall be fully protected in relying upon:
(i) a Board Resolution relating thereto and, if applicable, an
appropriate record of any action taken pursuant to such resolution
certified by the Secretary or an Assistant Secretary of the Company;
(ii) an executed supplemental indenture, if any, relating
thereto;
(iii) an Officers' Certificate setting forth the form and terms
of the Convertible Debt Securities of such series, pursuant to Sections
201 and 301 and stating that all conditions precedent provided for in
this Indenture relating to the issuance of such Convertible Debt
Securities have been complied with; and
(iv) an Opinion of Counsel stating
(A) that the form of such Convertible Debt Securities has
been established in or pursuant to a Board Resolution or by a
supplemental indenture as permitted by Section 201 in conformity
with the provisions of this Indenture;
(B) that the terms of such Convertible Debt Securities
have been established in or pursuant to a Board Resolution or by
a supplemental indenture as permitted by Section 301 in
conformity with the provisions of this Indenture; and
(C) that such Convertible Debt Securities, when
authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and binding
obligations of the Company, enforceable in accordance with their
terms, subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally and the application of
general principles of equity.
(c) If the Company shall establish pursuant to Section 301 that
the Convertible Debt Securities of a series are to be issued in whole or in part
in the form of one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with this Section and the Company Order with
respect to such series, authenticate and deliver one or more Global Securities
in permanent or temporary form that (i) shall represent and shall be denominated
in an aggregate amount equal to the aggregate principal amount of the
Outstanding Convertible Debt Securities of such series to be represented by one
or more Global Securities, (ii) shall be registered in the name of the
Depositary for such Global Security or
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<PAGE> 27
Securities or the nominee of such Depositary and (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions.
(d) The Trustee shall have the right to decline to authenticate
and deliver any Convertible Debt Securities under this Section 303 if the
issuance of such Convertible Debt Securities will adversely affect the Trustee's
own rights, duties or immunities under the Convertible Debt Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee.
(e) Each Registered Security shall be dated the date of its
authentication.
(f) No Convertible Debt Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose, unless there
appears on such Convertible Debt Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee, and such
certificate upon any Convertible Debt Security shall be conclusive evidence, and
the only evidence, that such Convertible Debt Security has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Convertible Debt Security or portion thereof shall have been duly authenticated
and delivered hereunder but never issued and sold by the Company, and the
Company shall deliver such Convertible Debt Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Convertible Debt Security or portion thereof has
never been issued and sold by the Company, for all purposes of this Indenture
such Convertible Debt Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
(g) Each Depositary designated pursuant to Section 301 for a
Global Security in registered form must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under
the Securities Exchange Act of 1934 and any other applicable statute or
regulation.
Section 304. Temporary Convertible Debt Securities.
(a) Pending the preparation of definitive Convertible Debt
Securities of any series, the Company may execute, and upon receipt of documents
required by Sections 301 and 303, together with a Company Order, the Trustee
shall authenticate and deliver, temporary Convertible Debt Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor and terms of the definitive Convertible
Debt Securities in lieu of which they are issued in registered form, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Convertible Debt Securities may determine, as
evidenced by their signatures on such Convertible Debt Securities.
(b) Unless otherwise provided pursuant to Section 301:
(i) Except in the case of temporary Convertible Debt Securities
in global form, if temporary Convertible Debt Securities of any series
are issued, the Company will cause definitive Convertible Debt
Securities of such series to be prepared
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without unreasonable delay. After the preparation of definitive
Convertible Debt Securities of such series, the related temporary
Convertible Debt Securities shall be exchangeable for such definitive
Convertible Debt Securities upon surrender of the temporary Convertible
Debt Securities of such series at the office or agency of the Company in
the Place of Payment for such series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Convertible Debt
Securities of any series, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal
amount of definitive Convertible Debt Securities of the same series of
like tenor and terms and of authorized denominations.
(ii) If Convertible Debt Securities of any series are issued in
temporary global form, any such temporary Global Security shall, unless
otherwise provided pursuant to Section 301, be delivered to the
Depositary for the benefit of __________________, for credit to the
respective accounts of the beneficial owners of such Convertible Debt
Securities (or to such other accounts as they may direct).
(iii) Without unnecessary delay but in any event not later than
the date specified in, or determined pursuant to the terms of, any such
temporary Global Security (the "Global Exchange Date"), the Company
shall deliver definitive Convertible Debt Securities to the Trustee or
the agent appointed by the Company pursuant to Section 301 to effect the
exchange of the temporary Global Security for definitive Convertible
Debt Securities (the "Global Exchange Agent"), in an aggregate principal
amount equal to the principal amount of such temporary Global Security,
executed by the Company. On or after the Global Exchange Date, such
temporary Global Security shall be surrendered by the Depositary to the
Global Exchange Agent, to be exchanged, in whole or from time to time in
part, for definitive Convertible Debt Securities without charge and the
Trustee or the Global Exchange Agent, if authorized by the Trustee
pursuant to Section 614, shall authenticate and deliver, in exchange for
each portion of such temporary Global Security, an equal aggregate
principal amount of definitive Convertible Debt Securities of the same
series of authorized denominations and of like tenor and terms as the
portion of such temporary Global Security to be exchanged. Upon any
exchange of a part of such temporary Global Security for definitive
Convertible Debt Securities, the portion of the principal amount and any
interest thereon so exchanged shall be endorsed by the Global Exchange
Agent on a schedule to such temporary Global Security, whereupon the
principal amount and interest payable with respect to such temporary
Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed. The definitive Convertible Debt Securities to be
delivered in exchange for any such temporary Global Security shall be in
registered form or global registered form, or any combination thereof,
as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof.
(iv) The interest of a beneficial owner of Convertible Debt
Securities of a series in a temporary Global Security shall be exchanged
for definitive Convertible Debt Securities of the same series and of
like tenor and terms following the Global Exchange Date when the account
holder instructs __________________ to request such exchange on such
account holder's behalf. Unless otherwise specified in such temporary
Global Security, any such exchange shall be made free of charge to the
beneficial owners
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<PAGE> 29
of such temporary Global Security, except that a Person receiving
definitive Convertible Debt Securities must bear the cost of insurance,
postage, transportation and the like in the event that such Person does
not take delivery of such definitive Convertible Debt Securities in
person at the offices of __________________.
(v) Until exchanged in full as hereinabove provided, the
temporary Convertible Debt Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as
definitive Convertible Debt Securities of the same series and of like
tenor and terms authenticated and delivered hereunder. Any interest so
received by __________________ and not paid as herein provided prior to
the Global Exchange Date shall be returned to the Global Exchange Agent
which, upon expiration of 2 years after such Interest Payment Date,
shall repay such interest to the Company in accordance with Section
1003.
Section 305. Registration; Registration of Transfer and Exchange.
The Company shall cause to be kept at one of the offices or agencies to
be maintained by the Company in accordance with the provisions of this Section
305 and Section 1002, with respect to the Convertible Debt Securities of each
series which are Registered Securities, a register (herein sometimes referred to
as the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. Pursuant to Section 301,
the Company shall appoint, with respect to Convertible Debt Securities of each
series which are Registered Securities, a "Security Registrar" for the purpose
of registering such Convertible Debt Securities and transfers and exchanges of
such Convertible Debt Securities as herein provided.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency of the Company maintained for such
purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Registered Securities of the same series of any authorized denomination or
denominations, of like tenor and terms and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series of any authorized
form and denomination, of like tenor and terms and aggregate principal amount,
upon surrender of the Registered Securities to be exchanged at such office or
agency.
Whenever any Convertible Debt Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Convertible Debt Securities which the Holder making the exchange is
entitled to receive.
If at any time the Depositary for the Convertible Debt Securities of a
series notifies the Company that it is unwilling or unable to continue as
Depositary for the Convertible Debt Securities of such series or if at any time
the Depositary for the Convertible Debt Securities of such series shall no
longer be eligible under Section 303(h), the Company shall appoint a successor
Depositary with respect to the Convertible Debt Securities of such series. If a
successor Depositary for the Convertible Debt Securities of such series is not
appointed by the
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Company within 90 days after the Company receives such notice or becomes aware
of such ineligibility, the Company's election pursuant to Section 301(8) shall
no longer be effective with respect to the Convertible Debt Securities of such
series and the Company will execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of definitive Convertible Debt
Securities of such series, will authenticate and deliver, Convertible Debt
Securities of such series in definitive form in an aggregate principal amount
equal to the principal amount of the Global Security or Securities representing
such series in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion determine that
the Convertible Debt Securities of any series issued in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of definitive
Convertible Debt Securities of such series, will authenticate and deliver,
Convertible Debt Securities of such series in definitive form and in an
aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Company pursuant to Section 301 with respect to a
series of Convertible Debt Securities, the Depositary for such series of
Convertible Debt Securities may surrender a Global Security for such series of
Convertible Debt Securities in exchange in whole or in part for Convertible Debt
Securities of such series of like tenor and terms and in definitive form on such
terms as are acceptable to the Company and such Depositary. Thereupon, the
Company shall execute, and the Trustee shall authenticate and deliver, without
charge to any Holder,
(a) to each Person specified by such Depositary a new Convertible
Debt Security or Securities of the same series, of like tenor and terms and of
any authorized denominations as requested by such person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security; and
(b) to such Depositary a new Global Security of like tenor and
terms and in a denomination equal to the difference, if any, between the
principal amount of the surrendered Global Security and the aggregate principal
amount of Convertible Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
Convertible Debt Securities in definitive registered form in authorized
denominations, if the Convertible Debt Securities of such series are issuable as
Registered Securities.
Upon the exchange of a Global Security for Convertible Debt Securities
in definitive form, such Global Security shall be cancelled by the Trustee.
Registered Securities issued in exchange for a Global Security pursuant to this
Section shall be registered in such names and in such authorized denominations
as the Depositary for such Global Security, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. The
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Trustee shall deliver such Registered Securities to the persons in whose names
such Convertible Debt Securities are so registered.
All Convertible Debt Securities issued upon any registration of transfer
or exchange of Convertible Debt Securities shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Convertible Debt Securities surrendered upon such registration
of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Security
Registrar or the Trustee) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar and the Trustee duly executed, by the Holder thereof or such Holder's
attorney duly authorized in writing.
No charge to any Holder shall be made for any registration of transfer
or exchange of Convertible Debt Securities, but the Company may, at its option,
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any transfer, registration of
transfer or exchange of Convertible Debt Securities, other than exchanges
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
The Company shall not be required (i) to issue, register the transfer of
or exchange Convertible Debt Securities of any particular series to be redeemed
for a period of 15 days preceding the first publication of the relevant notice
of redemption or, if Registered Securities are outstanding and there is no
publication, the mailing of the relevant notice of redemption of Convertible
Debt Securities of such series selected for redemption under Section 1103 and
ending at the close of business on the day of such mailing, or (ii) to register
the transfer of or exchange any Registered Security so selected for redemption
in whole or in part, except the unredeemed portion of such Registered Security
being redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Convertible Debt
Securities.
If (i) any mutilated Registered Security is surrendered to the Trustee,
or (ii) the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of any Convertible Debt Security, and there is
delivered to the Company and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company and the Trustee that such Convertible Debt Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Convertible Debt Security or in lieu of any such destroyed, lost
or stolen Convertible Debt Security, a new Convertible Debt Security of like
tenor and terms and principal amount, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Convertible Debt
Security has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Convertible Debt Security, pay such
Convertible Debt Security.
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Upon the issuance of any new Convertible Debt Security under this
Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee and printing
expenses) connected therewith.
Every new Convertible Debt Security of any series issued pursuant to
this Section in lieu of any destroyed, lost or stolen Convertible Debt Security
shall constitute an original additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Convertible Debt Security shall be
at any time enforceable by anyone, and any such new Convertible Debt Security
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Convertible Debt Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Convertible Debt Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Registered Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Registered Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest. At the option of the Company, payment of interest on any
Registered Security may be made by check in the currency designated for such
payment pursuant to the terms of such Registered Security mailed to the address
of the Person entitled thereto as such address shall appear in the Security
Register or by wire transfer to an account in such currency designated by such
Person in writing not later than 10 days prior to the date of such payment.
Any interest on any Registered Security of any series which is
payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the registered Holder on the relevant Regular Record Date by virtue
of his having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clauses (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid on
each Registered Security of such series and the date of the proposed payment,
and at the same time the Company shall deposit with the Trustee an amount of
money and/or Government Obligations the payments of principal and interest on
which when due (and without reinvestment) will provide money in such amounts as
will (together with any money irrevocably deposited in trust with the Trustee,
without investment) be equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money and/or Government Obligations when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
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clause provided. Thereupon the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date. Unless
the Trustee is acting as the Security Registrar, promptly after such Special
Record Date, the Company shall furnish the Trustee with a list, or shall make
arrangements satisfactory to the Trustee with respect thereto, of the names and
addresses of, and principal amounts of Registered Securities of such series held
by, the Holders appearing on the Security Register at the close of business on
such Special Record Date. In the name and at the expense of the Company, the
Trustee shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Registered Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such Defaulted
Interest shall be paid to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Registered
Securities may be listed, and upon such notice as may be required by such
exchange, if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Convertible
Debt Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Convertible Debt Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried by
such other Convertible Debt Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or of the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 307)
interest on such Registered Security and for all other purposes whatsoever,
whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
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Section 309. Cancellation.
Unless otherwise provided with respect to a series of Convertible Debt
Securities, all Convertible Debt Securities surrendered for payment, redemption,
repayment, transfer, exchange or credit against any sinking fund payment
pursuant to this Indenture shall, if surrendered to the Company or any agent of
the Company, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Convertible Debt Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all
Convertible Debt Securities so delivered shall be promptly cancelled by the
Trustee. No Convertible Debt Securities shall be authenticated in lieu of or in
exchange for any Convertible Debt Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Convertible Debt Securities held by the Trustee shall be destroyed and
certification of their destruction delivered to the Company unless by a Company
Order the Company shall direct that the cancelled Convertible Debt Securities be
returned to it.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Convertible Debt Securities of any series, interest on the Convertible Debt
Securities of each series shall be computed on the basis of a 360-day year of
twelve 30-day months.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of registration of transfer or
exchange of Convertible Debt Securities herein expressly provided for and rights
to receive payments of principal and interest thereon and any right to receive
additional amounts, as provided in Section 1006) and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when
(1) either
(A) all Convertible Debt Securities theretofore
authenticated and delivered (other than (i) Convertible Debt Securities
which have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, and (ii) Convertible Debt Securities
for whose payment money and/or Government Obligations have theretofore
been deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee cancelled
or for cancellation; or
(B) all such Convertible Debt Securities not theretofore
delivered to the Trustee for cancellation
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(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company, and the Company, in the case of (B)(i), (B)(ii) or (B)(iii)
above, has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose money and/or Government
Obligations the payments of principal and interest on which when due
(and without reinvestment) will provide money in such amounts as will
(together with any money irrevocably deposited in trust with the
Trustee, without investment) be sufficient to pay and discharge the
entire indebtedness on such Convertible Debt Securities of such series
for principal (and premium, if any) and interest, and any mandatory
sinking fund, repayment or analogous payments thereon, on the scheduled
due dates therefor to the date of such deposit (in the case of
Convertible Debt Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, if any, and all Repayment Dates (in
the case of Convertible Debt Securities repayable at the option of the
Holders thereof); provided, however, that in the event a petition for
relief under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law is filed with respect to the Company
within 91 days after the deposit, the obligations of the Company under
the Indenture with respect to the Convertible Debt Securities of such
series shall not be deemed terminated or discharged, and in such event
the Trustee shall be required to return the deposited money and
Government Obligations then held by the Trustee to the Company;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture
have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607 and, if money or
Government Obligations shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money and Government Obligations.
(a) Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations deposited with the Trustee pursuant
to Section 401, 403 or 1701 shall be held in trust and such money and the
principal and interest received on such Government Obligations shall be applied
by it, in accordance with the provisions of the Convertible Debt Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the
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Persons entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money or Government Obligations have been deposited with
the Trustee.
(b) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any Government Obligations or money held by it as
provided in Section 403 or 1701 which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are then in excess of the amount thereof which
then would have been required to be deposited for the purpose for which such
Government Obligations or money were deposited or received.
(c) The Trustee shall deliver to the Company from time to time
upon Company Request any Government Obligations held by it as provided in
Section 403 or 1701, provided that the Company in substitution therefor
simultaneously delivers to the Trustee, money or other Government Obligations
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, would then be sufficient to satisfy the Company's payment obligations
in respect of the Convertible Debt Securities in the manner contemplated by
Section 403 or 1701.
Section 403. Satisfaction, Discharge and Defeasance of Convertible Debt
Securities of any Series.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Convertible Debt Securities of any series, then, notwithstanding
Section 401, (i) the Company shall be deemed to have paid and discharged the
entire indebtedness on all the Outstanding Convertible Debt Securities of any
such series; (ii) the provisions of this Indenture as it relates to such
Outstanding Convertible Debt Securities shall no longer be in effect (except as
to (A) the rights of Holders of Convertible Debt Securities to receive, from the
trust fund described in subparagraph (1) below, payment of (x) the principal of
(and premium, if any) and any installment of principal of (and premium, if any)
or interest on such Convertible Debt Securities on the Stated Maturity of such
principal (and premium, if any) or installment of principal (and premium, if
any) or interest or (y) any mandatory sinking fund, repayment or analogous
payments applicable to the Convertible Debt Securities of that series on that
day on which such payments are due and payable in accordance with the terms of
this Indenture and of such Convertible Debt Securities, (B) the Company's
obligations with respect to such Convertible Debt Securities under Sections 304,
305, 306, 1002, 1003 and 1006, and (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including those under Section 607 hereof);
and (iii) the Trustee, at the expense of the Company, shall, upon Company Order,
execute proper instruments acknowledging satisfaction and discharge of such
indebtedness, when
(1) either
(A) with respect to all Outstanding Convertible Debt
Securities of such series, with reference to this Section 403, the
Company has deposited or caused to be deposited with the Trustee
irrevocably, as trust funds in trust, money and/or Government
Obligations the payments of principal and interest on which when due
(and without reinvestment) will provide money in such amounts as will
(together with any money
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irrevocably deposited in trust with the Trustee, without investment) be
sufficient to pay and discharge (i) the principal of (and premium, if
any) and interest on the Outstanding Convertible Debt Securities of that
series on the Stated Maturity of such principal or interest or, if such
series may be redeemed by the Company prior to the Stated Maturity
thereof and the Company shall have given irrevocable instructions to the
Trustee to effect such redemption, at the date fixed for such redemption
pursuant to Article XI, and (ii) any mandatory sinking fund payments or
analogous payments applicable to Convertible Debt Securities of such
series on the date on which such payments are due and payable in
accordance with the terms of this Indenture and of such Convertible Debt
Securities; or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Convertible Debt Securities of such series;
(2) the Company has paid or caused to be paid all sums payable
with respect to the Outstanding Convertible Debt Securities of such series;
(3) such deposit will not result in a breach of, or constitute a
default under, this Indenture or any other agreement or instrument to which the
Company is a party or by which it is bound;
(4) no Event of Default or event which, with the giving of notice
or lapse of time, or both, would become an Event of Default pursuant to Section
501(1), (2), (3), (6) or (7) with respect to the Convertible Debt Securities of
such series shall have occurred and be continuing on the date of such deposit
and no Event of Default under Section 501(6) or Section 501(7) or event which,
with the giving of notice or lapse of time, or both, would become an Event of
Default under Section 501(6) or Section 501(7) shall have occurred and be
continuing on the 91st day after such date; provided, however, that should that
condition fail to be satisfied on or before such 91st day, the Trustee shall
promptly, upon satisfactory receipt of evidence of such failure, return such
deposit to the Company;
(5) if the Convertible Debt Securities of that series are then
listed on any domestic securities exchange, the Company shall have delivered to
the Trustee an Opinion of Counsel to the effect that such deposit, defeasance
and discharge will not cause such Convertible Debt Securities to be delisted;
and
(6) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of the
entire indebtedness of all Outstanding Convertible Debt Securities have been
complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow or trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Convertible Debt Securities of such series are to be redeemed prior to their
Stated Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory sinking fund requirement, the applicable escrow
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or trust agreement shall provide therefor and the Company shall make such
arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Convertible Debt Securities of any series,
the terms and conditions of such series, including the terms and conditions with
respect thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that the Company shall not be discharged
from any payment obligations in respect of Convertible Debt Securities of such
series which are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of the
Company under applicable law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under this Indenture with respect to any series of
Convertible Debt Securities, the obligations of the Company to the Trustee under
Section 607, and the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003, shall survive with respect to such series of
Convertible Debt Securities.
ARTICLE V.
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Convertible
Debt Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(1) default in the payment of any interest upon any Convertible
Debt Security of such series when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Convertible Debt Security of such series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of a Convertible Debt Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically addressed or which has expressly been included in this Indenture
solely for the benefit of Convertible Debt Securities of a series other than
such series), and continuance of such default or breach for a period of 90 days
after there has been given by registered or certified mail, to the Company by
the Trustee, or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding
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Convertible Debt Securities of such series, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder, or
(5) a default under any Indebtedness for money borrowed by the
Company or any Subsidiary (including a default with respect to Convertible Debt
Securities of any series other than that series) or under any Mortgage,
indenture or instrument under which there may be issued or by which there may be
secured or evidenced any Indebtedness for money borrowed by the Company or any
Subsidiary (including this Indenture), whether such Indebtedness now exists or
shall hereafter be created, which default shall have resulted in such
Indebtedness in an outstanding principal amount in excess of $____________
becoming or being declared due and payable prior to the date on which it would
otherwise have become due and payable, without such acceleration having been
rescinded or annulled, or such Indebtedness having been discharged, within a
period of 10 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the Company
to cause such acceleration to be rescinded or annulled or cause such
Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to be
adjudicated a bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable Federal
or State law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment for the
benefit of creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate action by the
Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to
Convertible Debt Securities of such series specified as contemplated by Section
301.
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Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Convertible Debt Securities of
any series at the time Outstanding occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount of
Outstanding Convertible Debt Securities of such series may declare the principal
amount (or, if the Convertible Debt Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of and all accrued but unpaid interest on all the
Convertible Debt Securities of such series to be due and payable immediately, by
a notice in writing to the Company (and to the Trustee if given by such
Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. Upon payment of such amount,
all obligations of the Company in respect of the payment of principal of the
Convertible Debt Securities of such series shall terminate.
At any time after such a declaration of acceleration with respect to
Convertible Debt Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Convertible Debt Securities of such series, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on all
Convertible Debt Securities of such series,
(B) the principal of (and premium, if any, on) any
Convertible Debt Securities of such series which have become due
otherwise than by such declaration of acceleration and interest thereon
at the rate or rates prescribed therefor in such Convertible Debt
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
prescribed therefor in such Convertible Debt Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expense, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Convertible Debt
Securities of such series, other than the non-payment of the principal of
Convertible Debt Securities of such series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
513.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Convertible Debt Security when such interest becomes due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Convertible Debt Security at the Maturity thereof, the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Convertible Debt Securities, the amount then due and payable on
such Convertible Debt Securities for principal (and premium, if any) and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest upon the overdue principal (and premium, if any) and, upon
overdue installments of interest, at the rate or rates prescribed therefor in
such Convertible Debt Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon such Convertible Debt Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Convertible Debt Securities, wherever situated.
If an Event of Default with respect to Convertible Debt Securities of
any series occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Convertible
Debt Securities of such series by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceedings, or any voluntary or involuntary case under the Federal
bankruptcy laws as now or hereafter constituted, relative to the Company or any
other obligor upon the Convertible Debt Securities of a particular series or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of such Convertible Debt Securities shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceedings or otherwise,
(1) to file and prove a claim for the whole amount of principal
(and premium, if any) and interest owing and unpaid in respect of the
Convertible Debt Securities of such series
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and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any receiver,
assignee, trustee, custodian, liquidator, sequestrator or other similar official
in any such proceeding is hereby authorized by each Holder to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Convertible
Debt Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of
Convertible Debt Securities.
All rights of action and claims under this Indenture or the Convertible
Debt Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Convertible Debt Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name, as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, be for the ratable benefit of the Holders of the
Convertible Debt Securities in respect of which such judgment has been
recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (and premium,
if any) or interest, upon presentation of the Convertible Debt Securities, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 607;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest on the Convertible Debt Securities, in
respect of which or for the benefit of which such money has been collected
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Convertible Debt Securities for principal (and premium,
if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
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Section 507. Limitation on Suits.
No Holder of any Convertible Debt Securities of any series shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Convertible Debt
Securities of such series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Convertible Debt Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders shall have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Convertible Debt Securities of such series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Convertible Debt Security shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and,
subject to Section 307, interest on such Convertible Debt Security on the
respective Stated Maturity or Maturities expressed in such Convertible Debt
Security (or, in the case of redemption or repayment, on the Redemption Date or
the Repayment Date, as the case may be) and to institute suit for the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceedings to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights
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and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided in Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Convertible
Debt Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
Section 512. Control by Holders of Convertible Debt Securities.
The Holders of a majority in principal amount of the Outstanding
Convertible Debt Securities of any series shall have the right to direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Convertible Debt Securities of such series, provided, that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture;
(2) subject to the provisions of Section 601, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer or Responsible Officers of the Trustee,
determine that the proceedings so directed would be unjustly prejudicial to the
Holders of Convertible Debt Securities of such series not joining in any such
direction; and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Convertible Debt Securities of any series may on behalf of the
Holders of all the Convertible Debt Securities of any such series waive any past
default hereunder with respect to such series and its consequences, except a
default
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(1) in the payment of the principal of (or premium, if any) or
interest on any Convertible Debt Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder of
each Outstanding Convertible Debt Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Convertible
Debt Security by his acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit, having a due regard to
the merits and good faith of the claims or defenses made by such party litigant,
but the provisions of this Section shall not apply to any suit instituted by the
Company or the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 25% in principal amount of the
Outstanding Convertible Debt Securities of any series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Convertible Debt Security on or after the
respective Stated Maturity or Maturities expressed in such Convertible Debt
Security (or, in the case of redemption or repayment, on or after the Redemption
Date or Repayment Date, as the case may be).
Section 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law whenever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefits or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
Except during the continuance of an Event of Default, the Trustee's
duties and responsibilities under this Indenture shall be governed by the Trust
Indenture Act. In the event
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that an Event of Default has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this Indenture, and shall use the
same degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Default.
If a default occurs hereunder with respect to Convertible Debt
Securities of any series the Trustee shall transmit by mail to all Holders of
Convertible Debt Securities of such series notice of such default as and to the
extent provided by the Trust Indenture Act; provided, however, that in the case
of any default of the character specified in Section 501(4) with respect to
Convertible Debt Securities of such series no such notice to Holders shall be
given until at least 30 days after the occurrence thereof. For the purpose of
this Section, the term "default" means any event which is, or after notice or
lapse of time or both would become, an Event of Default with respect to
Convertible Debt Securities of such series.
Section 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any signature, resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note or other paper or document believed by it to be genuine and to
have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors shall be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Convertible Debt Securities of such series pursuant to
this Indenture, unless such Holders shall
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have offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney, other than any such books or records containing information as to
the affairs of the customers of the Company or any of its subsidiaries; provided
that the Trustee may examine such books and records relating to customers to the
extent that such books and records contain information as to any payments made
to such customers in their capacity as Holders of Convertible Debt Securities;
provided, further, that the Trustee shall treat all information regarding the
Company which it receives pursuant to this Indenture and its duties hereunder as
confidential and shall not disclose such information unless necessary in order
to fulfill its duties under this Indenture or the Trust Indenture Act; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; no Global Exchange Agent, Depositary or Paying Agent shall be deemed
an agent of the Trustee and the Trustee shall not be responsible for any act or
omission by any of them.
Section 604. Not Responsible for Recitals or Issuance of Convertible
Debt Securities.
The recitals contained herein and in the Convertible Debt Securities,
except the Trustee's certificates of authentication, and the information in any
registration statement, including all attachments thereto, except information
provided by the Trustee therein, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Convertible Debt Securities of any series. The Trustee shall
not be accountable for the use or application by the Company of any Convertible
Debt Securities or the proceeds thereof.
Section 605. May Hold Convertible Debt Securities.
The Trustee, any Paying Agent, the Security Registrar or any other agent
of the Company or the Trustee, in its individual or any other capacity, may
become the owner or pledgee of Convertible Debt Securities, and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
agent.
Section 606. Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need
not be segregated from other funds except to the extent required by law. Neither
the Trustee nor any Paying Agent
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shall be under any liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder which shall have from
time to time been separately agreed to by the Company and the Trustee in writing
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of this trust or performance of its duties hereunder, including
the reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its powers or
duties hereunder.
The Trustee shall promptly notify the Company of any claim for which it
may seek indemnification pursuant to the provisions of this Indenture. The
Company shall be entitled to participate in, and to the extent that it shall
wish, to assume the defense of such claim, with counsel satisfactory to the
Trustee (and the Trustee shall cooperate in the defense thereof), and after
notice from the Company to the Trustee of the Company's election so to assume
the defense thereof, the Company shall not be liable to the Trustee under this
Indenture for any legal or other expenses subsequently incurred by the Trustee
in connection with the defense thereof other than reasonable costs of
investigation. The Company shall not be obligated under any settlement agreement
relating to any claim under this Indenture to which it has not agreed in
writing.
As security for the performance of the obligations of the Company under
this Section the Trustee shall have a claim prior to the Convertible Debt
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (and premium, if any)
or interest on particular Convertible Debt Securities.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting
interest with respect to Convertible Debt Securities of any series by virtue of
being a trustee under this Indenture with respect to any particular series of
Convertible Debt Securities.
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Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation that is eligible pursuant to the Trust Indenture Act to act as such
and organized and doing business under the laws of the United States, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$__________, and subject to supervision or examination by Federal or State
authority; provided, however, that if Section 310(a) of the Trust Indenture Act
or the rules and regulations of the Commission under the Trust Indenture Act at
any time permit a corporation organized and doing business under the laws of any
other jurisdiction to serve as trustee of an indenture qualified under the Trust
Indenture Act, this Section 609 shall be automatically amended to permit a
corporation organized and doing business under the laws of any such other
jurisdiction to serve as Trustee hereunder. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign at any time with respect to the
Convertible Debt Securities of one or more series by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Convertible Debt Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Convertible Debt Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Convertible Debt Securities of such series,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 with
respect to the Convertible Debt Securities of any series after written
request therefor by the Company or by any Holder who has been a bona
fide Holder of a Convertible Debt Security of such series for at least 6
months, or
(2) the Trustee shall cease to be eligible under Section
609 with respect to any series of Convertible Debt Securities and shall
fail to resign after written request therefor by the Company or by any
such Holder, or
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(3) the Trustee shall become incapable of acting with
respect to any series of Convertible Debt Securities or a decree or
order for relief by a court having jurisdiction in the premises shall
have been entered in respect of the Trustee in an involuntary case under
the Federal bankruptcy laws, as now or hereafter constituted, or any
other applicable Federal or State bankruptcy, insolvency or similar law;
or a decree or order by a court having jurisdiction in the premises
shall have been entered for the appointment of a receiver, custodian,
liquidator, assignee, trustee, sequestrator or other similar official of
the Trustee or of its property or affairs, or any public officer shall
take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation, winding up or liquidation,
or
(4) the Trustee shall commence a voluntary case under the
Federal bankruptcy laws, as now or hereafter constituted, or any other
applicable Federal or State bankruptcy, insolvency or similar law or
shall consent to the appointment of or taking possession by a receiver,
custodian, liquidator, assignee, trustee, sequestrator or other similar
official of the Trustee or its property or affairs, or shall make an
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its debts generally as they become due, or shall take
corporate action in furtherance of any such action, then, in any such
case, (i) the Company by a Board Resolution may remove the Trustee with
respect to such series at any time or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Convertible Debt Security of
any series for at least 6 months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee for the Convertible Debt Securities of
such series and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable
of acting with respect to any series of Convertible Debt Securities, or if a
vacancy shall occur in the office of Trustee for any cause, with respect to the
Convertible Debt Securities or one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Convertible Debt Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Convertible
Debt Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Convertible Debt Securities of any
particular series) and shall comply with the applicable requirements of Section
611. If, within 1 year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Convertible
Debt Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Convertible Debt Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment,
become the successor Trustee with respect to the Convertible Debt Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Convertible Debt Securities
of any series shall have been so appointed by the Company or the Holders and
accepted appointment in the manner hereinafter provided, any Holder who has been
a bona fide Holder of a Convertible Debt Security of such series for at least 6
months may, subject to Section 514, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Convertible Debt
Securities of such series.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Convertible Debt Securities of any
series and each appointment of a successor Trustee with respect to the
Convertible Debt Securities of any series by mailing written notice of such
event by first-class mail, postage prepaid, to the Holders of Registered
Securities, of such series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee with
respect to the Convertible Debt Securities of such series and the address of its
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor.
(a) In the case of an appointment hereunder of a successor
Trustee with respect to all Convertible Debt Securities, every such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and
to the retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) In the case of the appointment hereunder of a successor
Trustee with respect to the Convertible Debt Securities of one or more (but not
all) series, the Company, the retiring Trustee upon payment of its charges and
each successor Trustee with respect to the Convertible Debt Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to,
and to vest in, each successor Trustee all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Convertible Debt Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Convertible Debt
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Convertible Debt Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Convertible Debt Securities of that
or those series to which the appointment of such successor Trustee relates; but,
on the request of the Company or any successor Trustee, such retiring Trustee
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder with
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respect to the Convertible Debt Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall, with the written approval of the Company, be the
successor of the Trustee hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the executing or filing of
any paper or any further act on the part of any of the parties hereto. In case
any Convertible Debt Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion,
consolidation or sale to such authenticating Trustee may adopt such
authentication and deliver the Convertible Debt Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Convertible Debt Securities. In case any Convertible Debt Securities shall not
have been authenticated by such predecessor Trustee, any such successor Trustee
may authenticate and deliver such Convertible Debt Securities, in either its own
name or that of its predecessor Trustee, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee. If
the Trustee's successor by merger, conversion, consolidation or sale shall not
have received the written approval of the Company, such successor shall resign
within 20 days after the merger, conversion, consolidation or sale and such
vacancy in the office of the Trustee shall be filled in the manner specified in
Section 610.
Section 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or shall become a creditor, directly or
indirectly, secured or unsecured, of the Company (or any other obligor upon the
Convertible Debt Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding collection of claims against the Company (or
any such other obligor).
Section 614. Authenticating Agent.
The Trustee may upon Company request appoint one or more Authenticating
Agents (including, without limitation, the Company or any Affiliate thereof)
with respect to one or more series of Convertible Debt Securities which shall be
authorized on behalf of the Trustee in authenticating Convertible Debt
Securities of such series in connection with the issue, delivery, registration
of transfer, exchange, partial redemption or repayment of such Convertible Debt
Securities. Wherever reference is made in this Indenture to the authentication
of Convertible
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Debt Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent
must be acceptable to the Company and, in the case of Registered Securities,
must be a corporation organized and doing business under the laws of the United
States or of any State or the District of Columbia, having a combined capital
surplus of at least $____________, authorized under such laws to do a trust
business and subject to supervision or examination by Federal or State
authorities.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an authenticating agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such authenticating agent.
An authenticating agent may at any time resign with respect to one or
more series of Convertible Debt Securities by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any authenticating agent with respect to one or more
series of Convertible Debt Securities by giving written notice of termination to
such authenticating agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time an authenticating
agent shall cease to be eligible in accordance with the provisions of this
Section, the Trustee may appoint a successor authenticating agent. Any successor
authenticating agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an authenticating agent herein. No
successor authenticating agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each authenticating agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payment, subject to the provisions
of Section 607.
The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall be
applicable to any authenticating agent.
Pursuant to each appointment made under this Section, the Convertible
Debt Securities of each series covered by such appointment may have endorsed
thereon, in lieu of the Trustee's certificate of authentication, an alternate
certificate of authentication in substantially the following form:
This is one of the Convertible Debt Securities, of the series designated
herein, described in the within-mentioned Indenture.
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_____________________________________________
By:__________________________________________
As Authenticating Agent for the Trustee
By:__________________________________________
Authorized Officer
ARTICLE VII.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Convertible Debt Securities of each series for which it acts as
Trustee:
(1) semi-annually, not later than May 15 and November 15 in each
year, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities as of the preceding May 1
or November 1, as the case may be, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished.
Section 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Registered
Securities contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders of Registered
Securities received by the Trustee in its capacity as Paying Agent or Security
Registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Convertible Debt
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act.
(c) Every Holder of Convertible Debt Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee shall be held accountable by reason of any disclosure of
information as to the names and addresses of the Holders made pursuant to the
Trust Indenture Act.
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Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Convertible Debt Securities pursuant to
this Indenture and at any other time required by the Trust Indenture Act, the
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture and such other matters as may be required pursuant
to the Trust Indenture Act in the manner required by the Trust Indenture Act.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which any Convertible Debt Securities of such series are listed, with the
Commission and also with the Company. The Company will notify the Trustee when
any series of Convertible Debt Securities are listed on any stock exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the time and
in the manner pursuant to such Act; provided that such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE VIII.
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801. Company May Consolidate, etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company, or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the corporation formed by such
consolidation or into which the Company is merged or the Person which acquires
by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any political
subdivision thereof or any State thereof and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal of
(and premium, if any) and interest on all the Convertible Debt Securities and
the performance of every covenant of this Indenture on the part of the Company
to be performed or observed (including the obligations of the Company with
respect to Conversion of the Convertible Debt Securities);
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(2) immediately after giving effect to such transaction, no Event
of Default, and no event which, after notice or lapse of time, or both, would
become an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such consolidation,
merger, conveyance, transfer or lease and such supplemental indenture comply
with this Article and that all conditions precedent herein provided for relating
to such transaction have been met.
Section 802. Successor Corporation Substituted.
Upon any consolidation with or merger into any other corporation, or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein, and thereafter, except in the case of a lease, the Company
(which term for this purpose shall mean the Person named as the "Company" in the
first paragraph of this instrument or any successor corporation which shall
theretofore have become such in the manner presented in this Article) shall be
relieved of all obligations and covenants under this Indenture and the
Convertible Debt Securities.
Section 803. Conveyance or Transfer to a Wholly-Owned Restricted
Subsidiary.
Notwithstanding the provisions of Sections 801 and 802, and without any
requirement of complying with any of such provisions, the Company may convey or
transfer its properties and assets substantially as an entirety to another
corporation organized and existing under the laws of the United States of
America or any State or the District of Columbia which is lawfully entitled to
acquire the same; provided, however, that immediately after giving effect to
such conveyance or transfer and to the receipt of the consideration therefor (i)
such other corporation shall be a Wholly-owned Subsidiary, and (ii) prior to
such conveyance or transfer there shall have been filed with the Trustee an
Officers' Certificate to the effect that the requirements of the preceding
clause (i) will be complied with in connection with such conveyance or transfer.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
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(1) to evidence the succession of another corporation to the
Company, and the assumption by such successor of the covenants of the Company
herein and in the Convertible Debt Securities contained; or
(2) to add to the covenants of the Company, for the benefit of
the Holders of all or any series of Convertible Debt Securities (and if such
covenants are to be for the benefit of less than all series of Convertible Debt
Securities, stating that such covenants are expressly being included solely for
the benefit of such series) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default (and if such Events
of Default are to be applicable to less than all series of Convertible Debt
Securities, stating that such Events of Default are expressly being included
solely to be applicable to such series); or
(4) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination (a) shall become
effective only when there is no Convertible Debt Security Outstanding of any
series created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provisions or (b) shall not apply to any
Convertible Debt Security Outstanding; or
(5) to establish the form or terms of Convertible Debt Securities
of any series as permitted by Sections 201 and 301; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Convertible Debt Securities
of one or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(7) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with any provision of this
Indenture, provided such other provisions shall not adversely affect the
interests of the Holders of Convertible Debt Securities of any series in any
material respect; or
(8) to add to or change or eliminate any provision of this
Indenture as shall be necessary or desirable in accordance with any amendments
to the Trust Indenture Act, provided such action shall not adversely affect the
interest of Holders of Convertible Debt Securities of any series in any material
respect.
Section 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Convertible Debt Securities of each series affected by
such supplemental indenture, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures
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supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights under this Indenture of the Holders of such
Convertible Debt Securities of such series; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
Outstanding Convertible Debt Security affected thereby,
(1) change the Stated Maturity of the principal or any
installment of principal of, or any installment of interest on, any Convertible
Debt Security, or reduce the principal amount thereof or the interest thereon or
any premium payable upon redemption or repayment thereof, or change any
obligation of the Company to pay additional amounts pursuant to Section 1006
(except as contemplated by Section 801(1) and permitted by Section 901(1)), or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment, or the coin or
currency in which any Convertible Debt Security or the interest thereon is
payable, or impair or otherwise limit a Holder's right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption or repayment, on or after the Redemption Date or
Repayment Date, as the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Convertible Debt Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this Indenture
or certain defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1604 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1012, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each Outstanding Convertible Debt Security affected
thereby; provided, however, that this clause shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section and Section 1010, or the deletion of
this proviso, in accordance with the requirements of Section 611(b) and 901(7),
or
(4) adversely affect the right to repayment, if any, of
Convertible Debt Securities of any series at the option of the Holders thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Convertible Debt Securities, or
which modifies the rights of the Holders of Convertible Debt Securities of such
series with respect to such covenant or other provision, shall be deemed not to
affect the rights under this Indenture of the Holders of Convertible Debt
Securities of any other series.
It shall not be necessary for any Act of Holders of the Convertible Debt
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
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Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Convertible Debt Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Convertible Debt Securities to Supplemental
Indentures.
Convertible Debt Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Convertible Debt Securities of any series so
modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Convertible Debt Securities of such series.
ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Convertible Debt Securities that it will duly and punctually pay the principal
of (and premium, if any) and interest on the Convertible Debt Securities in
accordance with the terms of the Convertible Debt Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Convertible Debt Securities an office or agency where Convertible Debt
Securities may be presented or surrendered for payment, where Convertible Debt
Securities may be surrendered for registration
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of transfer or exchange, where Convertible Debt Securities may be presented for
conversion, and where notices and demands to or upon the Company in respect of
the Convertible Debt Securities and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of any such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices or
demands may be made or served at the ____________________________, and the
Company hereby appoints the ______________ its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside of such Place of Payment) where the
Convertible Debt Securities of one or more series may be presented or
surrendered for any or all such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for any series of Convertible Debt Securities for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation and any change in the location of any such other office or agency.
Section 1003. Money for Convertible Debt Securities Payments to Be Held
in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Convertible Debt Securities, it will, on or before each
due date of the principal of (and premium, if any) or interest on any of the
Convertible Debt Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents with respect
to any series of Convertible Debt Securities, it will, on or before each due
date of the principal of (and premium, if any) or interest on any of the
Convertible Debt Securities of such series, deposit with a Paying Agent a sum
sufficient to pay the principal (and premium, if any) or interest so becoming
due, such sum to be held in trust for the benefit of the Persons entitled to
such principal, premium or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company will cause each Paying Agent with respect to any series of
Convertible Debt Securities other than the Trustee to execute and deliver to the
Trustee an instrument in which such Paying Agent shall agree with the Trustee,
subject to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of
(and premium, if any) or interest on Convertible Debt Securities of such series
in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Convertible Debt Securities of such series) in the making
of any payment of principal of (and premium, if any) or interest on the
Convertible Debt Securities of such series; and
(3) at any time during the continuance of any such default, upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of terminating its
obligations under this Indenture with respect to Convertible Debt Securities of
any series or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Any principal and interest received on the Government Obligations
deposited with the Trustee or any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of
(and premium, if any) or interest on any Convertible Debt Security of any series
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Convertible
Debt Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money (including the principal and interest
received on Government Obligations deposited with the Trustee), and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in one Authorized Newspaper of general circulation in each of The City of
New York, and The City of Los Angeles, respectively, and each Place of Payment
or mailed to each such Holder, or both, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days
from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 1004. Corporate Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises, provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working
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order and supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times, provided, however, that nothing in this Section shall prevent the
Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
If the Convertible Debt Securities of a series provide for the payment
of additional amounts, at least 10 days prior to the first Interest Payment Date
with respect to that series of Convertible Debt Securities (or if the
Convertible Debt Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal (and premium, if any) is
made), and at least 10 days prior to each date of payment of principal (and
premium, if any) or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate, the Company will
furnish the Trustee and the Company's principal Paying Agent or Paying Agents,
if other than the Trustee, with an Officers' Certificate instructing the Trustee
and such Paying Agent or Paying Agents whether such payment of principal of (and
premium, if any) or interest on the Convertible Debt Securities of that series
shall be made to Holders of Convertible Debt Securities of that series without
withholding for or on account of any tax, assessment or other governmental
charge described in the Convertible Debt Securities of that series. If any such
withholding shall be required, then such Officers' Certificate shall specify the
amount, if any, required to be withheld on such payments to such Holders of
Convertible Debt Securities and the Company will pay to the Trustee or such
Paying Agent the additional amounts, if any, required by the terms of such
Convertible Debt Securities and the first paragraph of this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section.
Section 1006. Officer's Certificate as to Default.
The Company will furnish to the Trustee not more than 120 days after the
end of the Company's fiscal year in each year (beginning with 1999) a brief
certificate from the principal executive, financial or accounting officer or
treasurer or controller of the Company as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture
(such compliance to be determined without regard to any period of grace or
requirement of notice provided under this Indenture), and, if he or she has
knowledge of any default, specifying each such default of which the signer has
knowledge and the nature thereof.
Section 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1004, and 1005 inclusive with
respect to the Convertible Debt Securities of any series if, before the time for
such compliance the Holders of at least a majority in principal amount of the
Convertible Debt Securities at the time Outstanding shall, by Act of such
Holders, either waive such compliance in such instance or generally waive
compliance with
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such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE XI.
REDEMPTION OF CONVERTIBLE DEBT SECURITIES
Section 1101. Applicability of Article.
Convertible Debt Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and
(except as otherwise specified as contemplated by Section 301 for Convertible
Debt Securities of any series) in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Convertible Debt Securities
shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company of less than all of the Convertible Debt Securities of
any series, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
and the tenor and terms of the Convertible Debt Securities of any series to be
redeemed. In the case of any redemption of Convertible Debt Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Convertible Debt Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate evidencing compliance
with such restriction.
Section 1103. Selection by Trustee of Convertible Debt Securities to be
Redeemed.
Except as otherwise specified as contemplated by Section 301 for
Convertible Debt Securities of any series, if less than all the Convertible Debt
Securities of any series with like tenor and terms are to be redeemed, the
particular Convertible Debt Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Convertible Debt Securities of such series with like tenor and terms not
previously called for redemption, by such method as the Trustee shall deem fair
and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Convertible Debt
Securities of such series or any integral multiple thereof which is also an
authorized denomination) of the principal amount of Registered Securities (if
issued in more than one authorized denomination) of such series of a
denomination larger than the minimum authorized denomination for Convertible
Debt Securities of such series.
The Trustee shall promptly notify the Company in writing of the
Convertible Debt Securities selected for redemption and, in the case of any
Convertible Debt Securities selected for partial redemption, the principal
amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Convertible Debt
Securities shall relate, in the case of any Convertible Debt Security redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Convertible Debt Security which has been or is to be redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106 not less than 30 nor more than 60 days prior to the Redemption Date, to each
Holder of Convertible Debt Securities to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding Convertible Debt Securities of
any series are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Convertible Debt Securities
to be redeemed,
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Convertible Debt Security to be redeemed, and
that interest thereon shall cease to accrue on and after said date,
(5) the Place or Places of Payment where such Convertible Debt
Securities are to be surrendered for payment of the Redemption Price
(6) that the redemption is for a sinking fund, if such is the
case, and
(7) the CUSIP number, if any.
A notice of redemption published as contemplated by Section 106 need not
identify particular Registered Securities to be redeemed.
Notice of redemption of Convertible Debt Securities to be redeemed at
the election of the Company shall be given by the Company, or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, aggregate and hold in trust as provided in Section 1003) an amount of
money and/or Government Obligations the payments of principal and interest on
which when due (and without reinvestment) will provide money on or prior to the
Redemption Date in such amounts as will (together with any money irrevocably
deposited in trust with the Trustee, without investment) be sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date)
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accrued interest on, all the Convertible Debt Securities or portions thereof
which are to be redeemed on that date.
Section 1106. Convertible Debt Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Convertible
Debt Securities to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Convertible Debt Securities shall cease to bear interest.
Upon surrender of any such Convertible Debt Security for redemption in
accordance with said notice, such Convertible Debt Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Convertible Debt Securities, or one or more
Predecessor Securities, registered as such on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Convertible Debt Security called for redemption shall not be so
paid upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Convertible Debt Security.
Section 1107. Convertible Debt Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company, the Security
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company, the Security
Registrar 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 Convertible Debt Security
without service charge, a new Registered Security or Registered Securities of
the same series and of like tenor and terms, of any authorized denominations as
requested by such Holder in aggregate principal amount equal to and in exchange
for the unredeemed portion of the principal of the Convertible Debt Security so
surrendered.
ARTICLE XII.
CONVERSION OF CONVERTIBLE DEBT SECURITIES
Section 1201. Conversion Privilege.
A holder of Convertible Debt Securities may convert the principal amount
thereof (or any portion thereof that is an integral multiple of $1,000) into
fully paid and nonassessable shares of Common Stock of the Company at any time
after 90 days following the date of original issuance thereof and prior to the
close of business on the date of the Convertible Debt Securities' Maturity at
the Conversion Price then in effect, except that, with respect to any
Convertible Debt Securities called for redemption such conversion right shall
terminate at the close of business on the third Business Day immediately
preceding the Redemption Date (unless the Company shall
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default in making the redemption payment when it becomes due, in which case the
conversion right shall terminate on the date such default is cured). The number
of shares of Common Stock issuable upon conversion of Convertible Debt
Securities is determined by dividing the principal amount of the Convertible
Debt Securities converted, by the conversion price in effect on the Conversion
Date (the "Conversion Price").
The initial Conversion Price is stated in the Convertible Debt
Securities and is subject to adjustment as provided in this Article XII.
Provisions of this Indenture that apply to conversion of all of the
Convertible Debt Securities of any series also apply to conversion of a portion
of it. A holder of Convertible Debt Securities is not entitled to any rights of
a holder of Common Stock (other than as provided pursuant to the Company's
shareholders rights plan, if any) until such holder of Convertible Debt
Securities has converted such Convertible Debt Securities into Common Stock, and
only to the extent that such Convertible Debt Securities are deemed to have been
converted into Common Stock under this Article XII.
Section 1202. Conversion Procedure.
To convert Convertible Debt Securities, a Holder must satisfy the
requirements in the Convertible Debt Securities. The date on which the Holder
satisfies all of those requirements is the conversion date (the "Conversion
Date"). As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder through the Conversion Agent a certificate for the number
of whole shares of Common Stock issuable upon the conversion and a check for any
fractional share determined pursuant to Section 1203. The person in whose name
the certificate is registered shall become the shareholder of record on the
Conversion Date and, as of such date, such person's rights as a Holder of
Convertible Debt Securities shall cease; provided, however, that no surrender of
Convertible Debt Securities on any date when the stock transfer books of the
Company shall be closed, shall be effective to constitute the person entitled to
receive the shares of Common Stock upon such conversion as the shareholder of
record of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the person entitled to receive such shares of Common
Stock as the shareholder of record thereof for all purposes at the close of
business on the next succeeding day on which such stock transfer books are open;
provided further, however, that such conversion shall be at the Conversion Price
in effect on the date that such Convertible Debt Securities shall have been
surrendered for conversion, as if the stock transfer books of the Company had
not been closed.
No payment or adjustment will be made for accrued and unpaid interest on
converted Convertible Debt Securities or for dividends or distributions on
shares of Common Stock issued upon conversion of Convertible Debt Securities,
but if any Holder surrenders Convertible Debt Securities for conversion after
the close of business on the record date for the payment of an installment of
interest and prior to the opening of business on the next interest payment date,
then, notwithstanding such conversion, the interest payable on such interest
payment date shall be paid to the holder of such Convertible Debt Securities on
such record date. In such event, any such Convertible Debt Securities not called
for redemption, when surrendered for conversion, must be accompanied by payment
in funds acceptable to the Company of an amount equal to the interest payable on
such interest payment date on the portion so converted.
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The number of whole shares of Common Stock issuable upon the conversion
shall be based on the total principal amount of Convertible Debt Securities
converted.
Upon surrender of Convertible Debt Securities that are converted in
part, the Trustee shall authenticate for the holder new Convertible Debt
Securities equal in principal amount to the unconverted portion of the
Convertible Debt Securities surrendered.
Section 1203. Fractional Shares.
The Company will not issue fractional shares of Common Stock upon
conversion of Convertible Debt Securities. In lieu thereof, the Company will pay
an amount in cash based upon the Daily Market Price of the Common Stock on the
trading day prior to the date of conversion.
Section 1204. Taxes on Conversion.
The issuance of certificates for shares of Common Stock upon the
conversion of any Convertible Debt Securities shall be made without charge to
the converting Holder for such certificates or for any tax in respect of the
issuance of such certificates, and such certificates shall be issued in the
respective names of, or in such names as may be directed by, the Holder or
Holders of the converted Convertible Debt Securities; provided, however, that in
the event that certificates for shares of Common Stock are to be issued in a
name other than the name of the Holder of the Convertible Debt Securities
converted, such Convertible Debt Securities, when surrendered for conversion,
shall be accompanied by an instrument of transfer, in form satisfactory to the
Company, duly executed by the registered Holder thereof or his duly authorized
attorney; and provided further, however, that the Company and Conversion Agent
shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of any such certificates in a
name other than that of the holder of the converted Convertible Debt Securities,
and the Company shall not be required to issue or deliver such certificates
unless or until the person or persons requesting the issuance thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid or is not applicable.
Section 1205. Company to Provide Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, solely for
the purpose of issuance upon conversion of Convertible Debt Securities as herein
provided, a sufficient number of shares of Common Stock to permit the conversion
of all outstanding Convertible Debt Securities for shares of Common Stock.
All shares of Common Stock which may be issued upon conversion of the
Convertible Debt Securities shall be duly authorized, validly issued, fully paid
and nonassessable when so issued.
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Section 1206. Adjustment of Conversion Price.
The Conversion Price shall be subject to adjustment from time to time as
follows:
(a) In case the Company shall (1) pay a dividend in shares of
Common Stock to holders of Common Stock (2) make a distribution in shares of
Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of
Common Stock into a greater number of shares of Common Stock or (4) combine its
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, the Conversion Price in effect immediately prior to such action shall be
adjusted so that the holder of any Convertible Debt Securities thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock which he would have owned immediately following such action had
such Convertible Debt Securities been converted immediately prior thereto. Any
adjustment made pursuant to this subsection (a) shall become effective
immediately after the record date in the case of a dividend, or distribution and
shall become effective immediately after the effective date in the case of a
subdivision or combination.
(b) In case the Company shall issue rights or warrants to
substantially all holders of Common Stock entitling them (for a period
commencing no earlier than the record date for the determination of holders of
Common Stock entitled to receive such rights or warrants and expiring not more
than 45 days after such record date) to subscribe for or purchase shares of
Common Stock (or securities convertible into Common Stock) at a price per share
less than the current market price (as determined pursuant to subsection (f)
below) of the Common Stock on such record date, the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction
of which the number at or shall be the number of shares of Common Stock
outstanding on such record date, plus the number of shares of Common Stock which
the aggregate offering price of the offered shares of Common Stock (or the
aggregate conversion price of the convertible securities so offered) would
purchase at such current market price, and of which the denominator shall be the
number of shares of Common Stock outstanding on such record date plus the number
of additional shares of Common Stock offered (or into which the convertible
securities so offered are convertible). Such adjustments shall become effective
immediately after such record date.
(c) In case the Company shall distribute to all holders of Common
Stock shares of any class of Capital Stock of the Company (other than Common
Stock), evidences of indebtedness or other assets (including securities, but
excluding those rights, warrants, dividends and distributions referred to in the
preceding clauses (a) and (b) and dividends and distributions in connection with
the liquidation, dissolution or winding up of the Company or paid exclusively in
cash out of current or retained earnings), or shall distribute to substantially
all holders of Common Stock rights or warrants to subscribe for securities
(other than those securities referred to in subsection (b) above), then in each
such case the Conversion Price shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the date of such distribution by a fraction of which the numerator
shall be the current market price (determined as provided in subsection (f)
below) of the Common Stock on the record date mentioned below less than then
fair market value (as described by the Board of Directors whose determination
shall be conclusive evidence of such fair market value and
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described in a Board Resolution) of the portion of the assets so distributed or
of such subscription rights or warrants applicable to one share of Common Stock,
and of which the denominator shall be such current market price of the Common
Stock. Such adjustment shall become effective immediately after the record date
for the determination of the holders of Common Stock entitled to receive such
distribution. Notwithstanding the foregoing, in the event that the Company shall
distribute rights or warrants subscribe for additional shares of the Company's
Capital Stock (other than the Common Stock referred to in subsection (b) above)
("Rights") pro rata to holders of Common Stock, the Company may, in lieu of
making any adjustment pursuant to this Section 1206, make proper provision so
that each holder of Convertible Debt Securities who converts such Convertible
Debt Securities (or any portion thereof) after the record date for such
distribution and prior to the expiration or redemption of the Rights shall be
entitled to receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion (the "Conversion Shares"), a number of
Rights to be determined as follows: (i) if such conversion occurs on or prior to
the date for the distribution to the holders of Rights of separate certificates
evidencing such Rights (the "Distribution Date"), the same number of Rights to
which a holder of a number of shares of Common Stock equal to the number of
Conversion Shares is entitled at the time of such conversion in accordance with
the terms and provisions of and applicable to the Rights; and (ii) if such
conversion occurs after the Distribution Date, the same number of Rights to
which a holder of the number of shares of Common Stock into which the principal
amount of the Convertible Debt Securities so converted was convertible
immediately prior to the Distribution Date would have been entitled on the
Distribution Date in accordance with the terms and provisions of and applicable
to the Rights.
(d) In case the Company shall, by dividend or otherwise, at any
time distribute to all holders of its Common Stock cash (including any
distributions of cash out of current or retained earnings of the Company but
excluding any cash that is distributed as part of a distribution requiring a
Conversion Price adjustment pursuant to paragraph (c) of this Section) in an
aggregate amount that, together with the sum of (x) the aggregate amount of any
other distributions to all holders of its Common Stock made in cash plus (y) all
Excess Payments, in each case made within the 12 months preceding the date fixed
for determining the shareholders entitled to such distribution (the
"Distribution Record Date") and in respect of which no Conversion Price
adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph
(d) has been made, exceeds 15% of the product of the current market price per
share (determined as provided in paragraph (f) of this Section) of the Common
Stock on the Distribution Record Date times the number of shares of Common Stock
outstanding on the Distribution Record Date (excluding shares held in the
treasury of the Company), the Conversion Price shall be reduced so that the same
shall equal the price determined by multiplying such Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this paragraph (d) by a fraction of which the numerator shall be
the current market price per share (determined as provided in paragraph (f) of
this Section) of the Common Stock on the Distribution Record Date less than the
amount of such cash and other consideration (including any Excess Payments) so
distributed applicable to one share (based on the pro rata portion of the
aggregate amount of such cash and other consideration (including any Excess
Payments), divided by the shares of Common Stock outstanding on the Distribution
Record Date) of Common Stock and the denominator shall be such current market
price per share (determined as provided in paragraph (f) of this Section) of the
Common Stock on the Distribution Record Date,
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such reduction to become effective immediately prior to the opening of business
on the day following the Distribution Record Date.
(e) In case a tender offer or other negotiated transaction made
by the Company or any Subsidiary of the Company for all or any portion of the
Common Stock shall be consummated, if an Excess Payment is made in respect of
such tender offer or other negotiated transaction and the amount of such Excess
Payment, together with the sum of (x) the aggregate amount of all Excess
Payments plus (y) the aggregate amount of all distributions to all holders of
the Common Stock made in cash (specifically including distributions of cash out
of retained earnings), in each case made within the 12 months preceding the date
of payment of such current negotiated transaction consideration or expiration of
such current tender offer, as the case may be (the "Purchase Date"), and as to
which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section
or this paragraph (e) has been made, exceeds 15% of the product of the current
market price per share (determined as provided in paragraph (f) of this Section)
of the Common Stock on the Purchase Date times the number of shares of Common
Stock outstanding (including any tendered shares but excluding any shares held
in the treasury of the Company) on the Purchase Date, the Conversion Price shall
be reduced so that the same shall equal the price determined by multiplying such
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this paragraph (e) by a fraction of
which the numerator shall be the current market price per share (determined as
provided in paragraph (f) of this Section) of the Common Stock on the Purchase
Date less the amount of such Excess Payments and such cash distributions, if
any, applicable to one share (based on the pro rata portion of the aggregate
amount of such Excess Payments and such cash distributions, divided by the
shares of Common Stock outstanding on the Purchase Date) of Common Stock and the
denominator shall be such current market price per share (determined as provided
in paragraph (f) of this Section) of the common Stock on the Purchase Date, such
reduction to become effective immediately prior to the opening of business on
the date following the Purchase Date.
(f) The current market price per share of Common Stock on any
date shall be deemed to be the average of the Daily Market Prices for the
shorter of (i) 30 consecutive Business Days ending on the last full trading day
on the exchange or market referred to in determining such Daily Market Prices
prior to the time of determination or (ii) the period commencing on the date
next succeeding the first public announcement of the issuance of such rights or
such warrants or such other distribution or such negotiated transaction through
such last full trading day on the exchange or market referred to in determining
such Daily Market Prices prior to the time of determination.
(g) In any case in which this Section 1206 shall require that an
adjustment be made immediately following a record date for an event, the Company
may elect to defer, until such event, issuing to the holder of any Convertible
Debt Securities converted after such record date the shares of Common Stock and
other Capital Stock of the Company issuable upon such conversion over and above
the shares of Common Stock and other Capital Stock of the Company issuable upon
such conversion only on the basis of the Conversion Price prior to adjustment;
and, in lieu of the shares the issuance of which is so deferred, the Company
shall issue or cause its transfer agents to issue due bills or other appropriate
evidence of the right to receive such shares.
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Section 1207. No Adjustment.
No adjustment in the Conversion Price shall be required until cumulative
adjustments amount to 1% or more of the Conversion Price as last adjusted;
provided, however, that any adjustments which by reason of this Section 1207 are
not required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article XII shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case may be.
No adjustment need be made for rights to purchase Common Stock pursuant to a
Company plan for reinvestment of dividends or interest. No adjustment need be
made for a change in the par value or no par value of the Common Stock.
Section 1208. Other Adjustments.
(a) In the event that, as a result of an adjustment made pursuant
to Section 1206 above, the holder of any Convertible Debt Securities thereafter
surrendered for conversion shall become entitled to receive any shares of
Capital Stock of the Company other than shares of its Common Stock, thereafter
the Conversion Price of such other shares so receivable upon conversion of any
Convertible Debt Securities shall be subject to adjustment from time to time in
a manner and on terms as nearly equivalent as practicable to the provisions with
respect to Common Stock contained in this Article XII.
(b) In the event that shares of Common Stock are not delivered
after the expiration of any of the rights or warrants referred to in Section
1206(b) and Section 1206(c) hereof, the Conversion Price shall be readjusted to
the Conversion Price which would otherwise be in effect had the adjustment made
upon the issuance of such rights or warrants been made on the basis of delivery
of only the number of shares of Common Stock actually delivered.
Section 1209. Adjustments for Tax Purposes.
The Company may, at its option, make such reductions in the Conversion
Price, in addition to those required by Section 1206 above, as it determines to
be advisable in order that any stock dividend, subdivision of shares,
distribution of rights to purchase stock or securities or distribution of
securities convertible into or exchangeable for stock made by the Company to its
shareholders will not be taxable to the recipients thereof.
Section 1210. Adjustments by the Company.
The Company from time to time may, to the extent permitted by law,
reduce the Conversion Price by any amount for any period of at least 20 days, in
which case the Company shall give at least 15 days' notice of such reduction in
accordance with Section 1211, if the Board of Directors has made a determination
that such reduction would be in the best interests of the Company, which
determination shall be conclusive.
Section 1211. Notice of Adjustment.
Whenever the Conversion Price is adjusted, the Company shall promptly
mail to Holders at the addresses appearing on the Registrar's books and the
Conversion Agent a notice of the adjustment and file with the Trustee an
Officers Certificate briefly stating the facts requiring the
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adjustment and the manner of computing it. The certificate shall be conclusive
evidence of the correctness of such adjustment.
Section 1212. Notice of Certain Transactions.
In the event that:
(1) the Company takes any action which would require an
adjustment in the Conversion Price;
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 1213 below; or
(3) there is a dissolution or liquidation of the Company;
a holder of Convertible Debt Securities may wish to convert such Convertible
Debt Securities into shares of Common Stock prior to the record date for or the
effective date of the transaction so that he may receive the rights, warrants,
securities or assets which a holder of shares of Common Stock on that date may
receive. Therefore, the Company shall mail to Holders at the addresses appearing
on the Registrar's books and the Conversion Agent and the Trustee a notice
stating the proposed record or effective date, as the case may be. The Company
shall mail the notice at least 15 days before such date; however, failure to
mail such notice or any defect therein shall not affect the validity of any
transaction referred to in clause (1), (2) or (3) of this Section 1212.
Section 1213. Effect of Reclassifications, Consolidations, Mergers or
Sales on Conversion Privilege.
If any of the following shall occur, namely: (i) any reclassification or
change of outstanding shares of Common Stock issuable upon conversion of
Convertible Debt Securities (other than a change in par value, or from par value
to no par value, or from no par value to par value, or as a result of a
subdivision or combination), (ii) any consolidation or merger to which the
Company is a party other than a merger in which the Company is the continuing
corporation and which does not result in any reclassification of, or change
(other than a change in name, or par value, or from par value to no par value,
or from no par value to par value as a result of a subdivision or combination)
in, outstanding shares of Common Stock or (iii) any sale or conveyance of all or
substantially all of the property or business of the Company as an entirety,
then the Company, or such successor or purchasing corporation, as the case may
be, shall, as a condition precedent to such reclassification, change,
consolidation, merger, sale or conveyance, execute and deliver to the Trustee a
supplemental indenture in form satisfactory to the Trustee providing that the
holder of Convertible Debt Securities of any series then outstanding shall have
the right to convert such Convertible Debt Securities into the kind and amount
of shares of stock and other securities and property (including cash) receivable
upon such reclassification, change, consolidation, merger, sale or conveyance by
a holder of the number of shares of Common Stock deliverable upon conversion of
such Convertible Debt Securities immediately prior to such reclassification,
change, consolidation, merger, sale or conveyance. Such supplemental indenture
shall provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this
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Article XII. The foregoing, however, shall not in any way affect the right a
Holder of Convertible Debt Securities may otherwise have, pursuant to clause
(ii) of the last sentence of subsection (c) of Section 1206, to receive Rights
upon conversion of a Convertible Debt Securities. If, in the case of any such
consolidation, merger, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of Common Stock
includes shares of stock or other securities and property of a corporation other
than the successor or purchasing corporation, as the case may be, in such
consolidation, merger, sale or conveyance, then such supplemental indenture
shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the holders of the Convertible
Debt Securities as the Board of Directors of the Company shall reasonably
consider necessary by reason of the foregoing. The provision of this Section
1213 shall similarly apply to successive consolidations, mergers, sales or
conveyances.
In the event the Company shall execute a supplemental indenture pursuant
to this Section 1213, the Company shall promptly file with the Trustee an
Officers' Certificate briefly stating the reasons therefor, the kind or amount
of shares of stock or securities or property (including cash) receivable by
holders of the Convertible Debt Securities upon the conversion of their
Convertible Debt Securities after any such reclassification, change,
consolidation, merger, sale or conveyance and any adjustment to be made with
respect thereto.
Section 1214. Trustee's Disclaimer.
The Trustee has no duty to determine when an adjustment under this
Article XII should be made, how it should be made or what such adjustment should
be, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be protected in relying upon the Officers' Certificate
with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 1211. The Trustee makes no representation as to the validity
or value of any securities or assets issued upon conversion of Convertible Debt
Securities, and the Trustee shall not be responsible for the Company's failure
to comply with any provisions of this Article XII.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 1213, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 1213.
ARTICLE XIII.
SUBORDINATION OF CONVERTIBLE DEBT SECURITIES
Section 1301. Agreement to Subordinate.
The Company, for itself and its successors, and each Holder, by his
acceptance of Convertible Debt Securities, agree that the payment of the
principal of or interest on or any other amounts due on the Convertible Debt
Securities is subordinated in right of payment, to the extent
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and in the manner stated in this Article XIII, to the prior payment in full of
all existing and future Senior Debt.
Section 1302. No Payment on Convertible Debt Securities if Senior Debt
in Default.
Anything in this Indenture to the contrary notwithstanding, no payment
on account of principal of or redemption of, interest on or other amounts due on
the Convertible Debt Securities, and no redemption, purchase, or other
acquisition of the Convertible Debt Securities, shall be made by or on behalf of
the Company (i) unless full payment of amounts then due for principal and
interest and of all other amounts then due on all Senior Debt has been made or
duly provided for pursuant to the terms of the instrument governing such Senior
Debt, (ii) if, at the time of such payment, redemption, purchase or other
acquisition, or immediately after giving effect thereto, there shall exist under
any Senior Debt, or any agreement pursuant to which any Senior Debt is issued,
any default, which default shall not have been cured or waived and which default
shall have resulted in the full amount of such Senior Debt being declared due
and payable or (iii) if, at the time of such payment, redemption, purchase or
other acquisition, the Trustee shall have received written notice from the
Representative of the holders of Designated Senior Debt (a "Payment Blockage
Notice") that there exists under such Designated Senior Debt, or any agreement
pursuant to which such Designated Senior Debt is issued, any default, which
default shall not have been cured or waived, permitting the holders thereof to
declare any amounts of such Designated Senior Debt due and payable, but only for
the period (the "Payment Blockage Period") commencing on the date of receipt of
the Payment Blockage Notice and ending (unless earlier terminated by notice
given to the Trustee by the Representative of the holders of such Designated
Senior Debt) on the earlier of (a) the date on which such event of default shall
have been cured or waived or (b) 179 days from the receipt of the Payment
Blockage Notice (unless the event of default relates to the failure to pay when
due, the principal, premium, if any or interest on such Designated Senior Debt).
Notwithstanding the provisions described in the immediately preceding sentence
(other than in clauses (i) and (ii)), unless the holders of such Designated
Senior Debt or the Representative of such holders shall have accelerated the
maturity of such Designated Senior Debt (unless the event of default relates to
the failure to pay when due, the principal, premium, if any or interest on such
Designated Senior Debt), the Company may resume payments on the Convertible Debt
Securities after the end of such Payment Blockage Period. Not more than one
Payment Blockage Notice may be given in any consecutive 360-day period,
irrespective of the number of defaults with respect to Senior Debt during such
period.
In the event that, notwithstanding the provisions of this Section 1302,
payments are made by or on behalf of the Company in contravention of the
provisions of this Section 1302, such payments shall be held by the Trustee, any
Paying Agent or the holders, as applicable, in trust for the benefit of, and
shall be paid over to and delivered to, the Representative of the holders of
Senior Debt or the trustee under the indenture or other agreement (if any),
pursuant to which any instruments evidencing any Senior Debt may have been
issued for application to the payment of all Senior Debt ratably according to
the aggregate amounts remaining unpaid to the extent necessary to pay all Senior
Debt in full in accordance with the terms of such Senior Debt, after giving
effect to any concurrent payment or distribution to or for the holders of Senior
Debt.
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The Company shall give prompt written notice to the Trustee and any
Paying Agent of any default or event of default under any Senior Debt or under
any agreement pursuant to which any Senior Debt may have been issued.
Section 1303. Distribution on Acceleration of Convertible Debt
Securities; Dissolution and Reorganization; Subrogation.
(a) If the Convertible Debt Securities are declared due and
payable because of the occurrence of an Event of Default, the Company shall give
prompt written notice to the holders of all Senior Debt or to the trustee(s) for
such Senior Debt of such acceleration. The Company may not pay the principal of
or interest on or any other amounts due on the Convertible Debt Securities until
5 days after such holders or trustee(s) of Senior Debt receive such notice and,
thereafter, the Company may pay the principal of or interest on or any other
amounts due on the Convertible Debt Securities only if the provisions of this
Article XIII permit such payment.
(b) Upon (i) any acceleration of the principal amount due on the
Convertible Debt Securities because of an Event of Default or (ii) any
distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or any other dissolution, winding up, liquidation or reorganization of the
Company):
(1) the holders of all Senior Debt shall first be entitled
to receive payment in full of the principal thereof, the interest
thereon and any other amounts due thereon before the holders are
entitled to receive payment on account of the principal of or interest
on or any other amounts due on the Convertible Debt Securities;
(2) any payment or distribution of assets of the Company
of any kind or character, whether in cash, property or securities (other
than securities of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for by a
plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article with
respect to the Convertible Debt Securities, to the payment in full
without diminution or modification by such plan of all Senior Debt), to
which the holders or the Trustee would be entitled except for the
provisions of this Article, shall be paid by the liquidating trustee or
agent or other person making such a payment or distribution, directly to
the holders of Senior Debt (or their representatives(s) or trustee(s)
acting on their behalf), ratably according to the aggregate amounts
remaining unpaid on account of the principal of or interest on and other
amounts due on the Senior Debt held or represented by each, to the
extent necessary to make payment in full of all Senior Debt remaining
unpaid, after giving effect to any concurrent payment or distribution to
the holders of such Senior Debt; and
(3) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at
least to the extent
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provided in this Article with respect to the Convertible Debt
Securities, to the payment in full without diminution or modification by
such plan of Senior Debt), shall be received by the Trustee or the
holders before all Senior Debt is paid in full, such payment or
distribution shall be held in trust for the benefit of, and be paid over
to upon request by a holder of the Senior Debt, the holders of the
Senior Debt remaining unpaid (or their representatives) or trustee(s)
acting on their behalf, ratably as aforesaid, for application to the
payment of such Senior Debt until all such Senior Debt shall have been
paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Debt.
Subject to the payment in full of all Senior Debt, the Holders shall be
subrogated to the rights of the holders of Senior Debt to receive payments or
distributions of cash, property or securities of the Company applicable to the
Senior Debt until the principal of and interest on the Convertible Debt
Securities shall be paid in full and, for purposes of such subrogation, no such
payments or distributions to the holders of Senior Debt of cash, property or
securities which otherwise would have been payable or distributable to holders
shall, as between the Company, its creditors other than the holders of Senior
Debt, and the holders, be deemed to be a payment by the Company to or on account
of the Senior Debt, it being understood that 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 Convertible Debt Securities is intended to or shall (i) impair, as between
the Company and its creditors other than the holders of Senior Debt, the
obligation of the Company, which is absolute and unconditional, to pay to the
Holders the principal of and interest on the Convertible Debt Securities as and
when the same shall become due and payable in accordance with the terms of the
Convertible Debt Securities, (ii) affect the relative rights of the holders and
creditors of the Company other than holders of Senior Debt or, as between the
Company and the Trustee, the obligations of the Company to the Trustee, or (iii)
prevent the Trustee or the Holders 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 in respect of
cash, property and securities of the Company received upon the exercise of any
such remedy.
Upon distribution of assets of the Company referred to in this Article
XIII, the Trustee, subject to the provisions of Section 601 hereof, and the
holders shall be entitled to rely upon a certificate of the liquidating trustee
or agent or other person making any distribution to the Trustee or to the
holders for the purpose of ascertaining the persons entitled to participate in
such 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.
The Trustee, however, shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt. Nothing contained in this Article or elsewhere in this
Indenture, or in any of the Convertible Debt Securities, shall prevent the good
faith application by the Trustee of any moneys which were deposited with it
hereunder, prior to its receipt of written notice of facts which would prohibit
such application, for the purpose of the payment of or on account of the
principal of or interest on, the Convertible Debt Securities unless, prior to
the date on which such application is made by the Trustee, the Trustee shall be
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charged with actual notice under Section 1303(d) hereof of the fact which would
prohibit the making of such application.
(c) The provisions of this Article XIII shall not be applicable
to any cash, properties or securities received by the Trustee or by any holder
when received as a holder of Senior Debt and nothing in this Indenture shall
deprive the Trustee or such holder of any of its rights as such holder.
(d) 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
of money to or by the Trustee in respect of the Convertible Debt Securities
pursuant to the provisions of this Article XIII. The Trustee, subject to the
provisions of Section 601 hereof, shall be entitled to assume that no such fact
exists unless the Company or any holder of Senior Debt or any trustee therefor
has given written notice thereof to the Trustee. Notwithstanding the provisions
of this Article or any other provisions of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any fact which would prohibit the
making of any payment of moneys to or by the Trustee in respect of the
Convertible Debt Securities pursuant to the provisions in this Article, unless,
and until 3 Business Days after the Trustee shall have received written notice
thereof from the Company or any holder or holders of Senior Debt or from any
trustee therefor; and, prior to the receipt of any such written notice, the
Trustee, subject to the provisions of Section 601 hereof, shall be entitled in
all respects conclusively to assume that no such facts exist; provided, however,
that if on a date not less than 3 Business Days immediately preceding the date
upon which, by the terms hereof, any such moneys may become payable for any
purpose (including, without limitation, the principal of or interest on any
Convertible Debt Securities), the Trustee shall not have received with respect
to such moneys the written notice provided for in this Section 1303(d), then
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such moneys and to apply the same to
the purpose for which they were received, and shall not be affected by any
notice to the contrary which may be received by it on or after such prior date.
The Trustee shall be entitled to conclusively rely on the delivery to it
of a written notice by a person representing himself to be a holder of Senior
Debt (or a trustee on behalf of such Holder) to establish that such notice has
been given by a holder of Senior Debt (or a trustee on behalf of any holder or
holders). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a holder of
Senior Debt to participate in any payment or distribution pursuant to this
Article XIII, 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 XIII, 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; nor shall the Trustee be
charged with knowledge of the curing or waiving of any default of the character
specified in Section 1302 hereof or that any event or any condition preventing
any payment in respect of the Convertible Debt Securities shall have ceased to
exist, unless and until the Trustee shall have received written notice to such
effect.
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(e) The provisions of this Section 1303 applicable to the Trustee
shall (unless the context requires otherwise) also apply to any Paying Agent for
the Company.
Section 1304. Reliance by Senior Debt on Subordination Provisions.
Each Holder of any Convertible Debt Securities by his acceptance thereof
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration for each holder of any Senior
Debt, whether such Senior Debt was created or acquired before or after the
issuance of the Convertible Debt Securities, to acquire and continue to hold, or
to continue to hold, such Senior Debt, and such holder of Senior Debt shall be
deemed conclusively to have relied on such subordination provisions in acquiring
and continuing to hold, or in continuing to hold, such Senior Debt. Notice of
any default in the payment of any Senior Debt, except as expressly stated in
this Article XIII, and notice of acceptance of the provisions hereof are hereby
expressly waived. Except as otherwise expressly provided herein, no waiver,
forbearance or release by any holder of Senior Debt under such Senior Debt or
under this Article shall constitute a release of any of the obligations or
liabilities of the Trustee or Holders of the Convertible Debt Securities
provided in this Article.
Section 1305. No Waiver of Subordination Provisions.
Except as otherwise expressly provided herein, 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 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 Convertible Debt
Securities, without incurring responsibility to the Holders of the Convertible
Debt Securities and without impairing or releasing the subordination provided in
this Article XIII or the obligations hereunder of the Holders of the Convertible
Debt Securities to the holders of Senior Debt do any one or more of the
following: (i) change the manner, place or terms of payment of, or renew or
alter, Senior Debt, or otherwise amend or supplement in any manner or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise dispose of 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 or any other person.
Section 1306. Trustee's Relation to Senior Debt.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article XIII in respect of any Senior Debt at any time
held by it, to the same extent as any holder of Senior Debt, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations, as are
specifically set forth in this Article,
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and no implied covenants or obligations with respect to the holders of Senior
Debt shall be read into this Indenture against the Trustee. The Trustee shall
not owe any fiduciary duty to the holders of Senior Debt but shall have only
such obligations to such holders as are expressly set forth in this Article.
Each Holder of a Convertible Debt Securities 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 XIII and appoints the Trustee his attorney-in-fact for any and all such
purposes, including, in the event of any dissolution, winding up or liquidation
or reorganization under any applicable bankruptcy law of the Company (whether in
bankruptcy, insolvency or receivership proceedings or otherwise), the timely
filing of a claim for the unpaid balance of such holder's Convertible Debt
Securities in the form required in such proceedings and the causing of such
claim to be approved. If the Trustee does not file a claim or proof of debt in
the form required in such proceedings prior to 30 days before the expiration of
the time to file such claims or proofs, then any holder or holders of Senior
Debt or their representative or representatives shall have the right to demand,
sue for, collect, receive and receipt for the payments and distributions in
respect of the Convertible Debt Securities which are required to be paid or
delivered to the holders of Senior Debt as provided in this Article and to file
and prove all claims therefor and to take all such other action in the name of
the holders or otherwise, as such holders of Senior Debt or representative
thereof may determine to be necessary or appropriate for the enforcement of the
provisions of this Article.
Section 1307. Other Provisions Subject Hereto.
Expect as expressly stated in this Article XIII, notwithstanding
anything contained in this Indenture to the contrary, all the provisions of this
Indenture and the Convertible Debt Securities are subject to the provisions of
this Article. However, nothing in this Article shall apply to or adversely
affect the claims of, or payment to, the Trustee pursuant to Section 607.
Notwithstanding the foregoing, the failure to make a payment on account of
principal of or interest on the Convertible Debt Securities by reason of any
provision of this Article shall not be construed as preventing the occurrence of
an Event of Default under Section 501.
ARTICLE XIV.
REPAYMENT AT THE OPTION OF HOLDERS
Section 1401. Applicability of Article.
Convertible Debt Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity shall be repaid in
accordance with their terms and (except as otherwise specified pursuant to
Section 301 for Convertible Debt Securities of such series) in accordance with
this Article.
Section 1402. Repayment of Convertible Debt Securities.
Each Convertible Debt Security which is subject to repayment in whole or
in part at the option of the Holder thereof on a Repayment Date shall be repaid
at the applicable Repayment
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Price together with interest accrued to such Repayment Date as specified
pursuant to Section 301.
Section 1403. Exercise of Option; Notice.
Each Holder desiring to exercise such Holder's option for repayment
shall, as conditions to such repayment, surrender the Convertible Debt Security
to be repaid in whole or in part together with written notice of the exercise of
such option at any office or agency of the Company in a Place of Payment, not
less than 30 nor more than 45 days prior to the Repayment Date. Such notice,
which shall be irrevocable, shall specify the principal amount of such
Convertible Debt Security to be repaid, which shall be equal to the minimum
authorized denomination for such Convertible Debt Security or an integral
multiple thereof, and shall identify the Convertible Debt Security to be repaid
and, in the case of a partial repayment of the Convertible Debt Security, shall
specify the denomination or denominations of the Convertible Debt Security or
Convertible Debt Securities of the same series to be issued to the Holder for
the portion of the principal of the Convertible Debt Security surrendered which
is not to be repaid.
The Company shall execute and the Trustee shall authenticate and deliver
without service charge to the Holder of any Registered Security so surrendered a
new Registered Security or Securities of the same series, of any authorized
denomination specified in the foregoing notice, in an aggregate principal amount
equal to any portion of the principal of the Registered Security so surrendered
which is not to be repaid.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the repayment of Convertible Debt
Securities shall relate, in the case of any Convertible Debt Security repaid or
to be repaid only in part, to the portion of the principal of such Convertible
Debt Security which has been or is to be repaid.
Section 1404. Election of Repayment by Remarketing Entities.
The Company may elect, with respect to Convertible Debt Securities of
any series which are repayable at the option of the Holders thereof before their
Stated Maturity, at any time prior to any Repayment Date to designate one or
more Remarketing Entities to purchase, at a price equal to the Repayment Price,
Convertible Debt Securities of such series from the Holders thereof who give
notice and surrender their Convertible Debt Securities in accordance with
Section 1403.
Section 1405. Securities Payable on the Repayment Date.
Notice of exercise of the option of repayment having been given and the
Convertible Debt Securities so to be repaid having been surrendered as
aforesaid, such Convertible Debt Securities shall, unless purchased in
accordance with Section 1404, on the Repayment Date become due and payable at
the price therein specified and from and after the Repayment Date such
Convertible Debt Securities shall cease to bear interest and shall be paid on
the Repayment Date unless the Company shall default in the payment of such price
in which case the Company shall continue to be obligated for the principal
amount of such Convertible Debt Securities and shall be obligated to pay
interest on such principal amount at the rate borne by such Convertible Debt
Securities from time to time until payment in full of such principal amount.
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ARTICLE XV.
MEETINGS OF HOLDERS OF CONVERTIBLE DEBT SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Convertible Debt Securities of any series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other Act provided by this Indenture to be made, given or taken by Holders of
Convertible Debt Securities of such series.
Section 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Convertible Debt Securities of any series for any purpose specified in Section
1501, to be held at such time and at such place in The City of New York, or in
The City of Los Angeles, as the Trustee shall determine. Notice of every meeting
of Holders of Convertible Debt Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 25% in principal amount of the
Outstanding Convertible Debt Securities of any series shall have requested the
Trustee to call a meeting of the Holders of Convertible Debt Securities of such
series for any purpose specified in Section 1501, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Convertible Debt Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in The City
of New York, or in The City of Los Angeles, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in subsection (a)
of this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Convertible Debt
Securities of any series, a Person shall be (1) a Holder of one or more
Outstanding Convertible Debt Securities of such series, or (2) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Convertible Debt Securities of such series by such Holder or
Holders. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders of Convertible Debt Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Convertible Debt Securities of a series shall constitute a quorum
for a meeting of Holders of
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Convertible Debt Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Convertible Debt Securities of such
series, be dissolved. In the absence of a quorum in any other case the meeting
may be adjourned for a period of not less than 10 days as determined by the
chairperson of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairperson of the meeting prior to the adjournment of such adjourned meeting.
Notice of this reconvening of any adjourned meeting shall be given as provided
in Section 1502(a), except that such notice need be given only once not less
than 5 days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage, as provided above, of the principal amount of the
Outstanding Convertible Debt Securities of such series which shall constitute a
quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted only by the affirmative vote of the Holders
of majority in principal amount of the Outstanding Convertible Debt Securities
of that series, provided, however, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other Act which this Indenture expressly
provides may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding
Convertible Debt Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Convertible Debt Securities of that series.
Any resolution passed or decision taken at any meeting of Holders of
Convertible Debt Securities of any series duly held in accordance with this
Section shall be binding on all the Holders of Convertible Debt Securities of
such series, whether or not present or represented at the meeting.
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Convertible Debt Securities of such series in regard to
proof of the holding of Convertible Debt Securities of such series and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Convertible Debt Securities
shall be proved in the manner specified in Section 104 and the appointment of
any proxy shall be proved in the manner specified in Section 104. Such
regulations may provide that written instruments appointing proxies, regular on
their face, may be presumed valid and genuine without the proof specified in
Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairperson of the meeting, unless the meeting shall have been called
by the Company or by
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Holders of Convertible Debt Securities as provided in Section 1502(b), in which
case the Company or the Holders of Convertible Debt Securities of the series
calling the meeting, as the case may be, shall in like manner appoint a
temporary chairperson. A permanent chairperson and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Convertible Debt Securities of such series
represented at the meeting.
(c) At any meeting each Holder of a Convertible Debt Security of
such series or proxy shall be entitled to one vote for each $1,000 principal
amount of Convertible Debt Securities of such series held or represented by him;
provided, however, that no vote shall be cast or counted at any meeting in
respect of any Convertible Debt Security challenged as not Outstanding and ruled
by the chairperson of the meeting not to be Outstanding. The chairperson of the
meeting shall have no right to vote, except as a Holder of a Convertible Debt
Security of such series or proxy.
(d) Any meeting of Holders of Convertible Debt Securities of any
series duly called pursuant to Section 1502 at which a quorum is present may be
adjourned from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Convertible Debt Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without further
notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Convertible Debt Securities of any series shall be by written ballots on which
shall be subscribed the signatures of the Holders of Convertible Debt Securities
of such series or of their representatives by proxy and the principal amounts
and serial numbers of the Outstanding Convertible Debt Securities of such series
held or represented by them. The permanent chairperson of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in triplicate of all votes cast at
the meeting. A record, at least in triplicate, of the proceedings of each
meeting of Holders of Convertible Debt Securities of any series shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1501.
Each copy shall be signed and verified by the affidavits of the permanent
chairperson and secretary of the meeting and one such copy shall be delivered to
the Company, and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
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ARTICLE XVI.
DEFEASANCE
Section 1601. Termination of Company's Obligations.
If this Section 1601 is specified, as contemplated by Section 301, to be
applicable to any series of Convertible Debt Securities and if the Company
deposits irrevocably in trust with the Trustee money and/or Government
Obligations the payments of principal and interest on which when due (and
without reinvestment) will provide money in such amounts as will (together with
any money irrevocably deposited in trust with the Trustee, without investment)
be sufficient to pay the principal of (and premium, if any) and any installment
of principal of (and premium, if any) or interest when due on the Convertible
Debt Securities of such series on the Stated Maturity of such principal or
interest or, if such series may be redeemed by the Company prior to the Stated
Maturity thereof and the Company shall have given irrevocable instructions to
the Trustee to effect such redemption, at the date fixed for such redemption
pursuant to Article XI, and any mandatory sinking fund, repayment or analogous
payments thereon on the scheduled due dates therefor, the Company's obligations
under Sections 801, 803, 804 and 1005 and any other covenant determined pursuant
to Section 301 to be subject to this Section shall terminate and Sections 501(4)
(with respect to Sections 801, 803, 804 and 1005), 501(5), 501(6), 501(7) and
501(8) (if specified as contemplated by Section 301) shall be deemed not to be
an Event of Default, in each case with respect to the Convertible Debt
Securities of the series for which such deposit was made; provided, however,
that (i) no Event of Default with respect to the Convertible Debt Securities of
such series under Section 501(6) or 501(7) or event that with notice or lapse of
time or both would constitute such an Event of Default shall have occurred and
be continuing on the 91st day after such date, (ii) such deposit will not result
in a breach of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound,
and (iii) such termination shall not relieve the Company of its obligations
under the Convertible Debt Securities of such series and this Indenture to pay
when due the principal of (and premium, if any) and interest and additional
amounts on such Convertible Debt Securities if such amounts are not paid (or
payment is not provided for) when due from the money and Government Obligations
(and the proceeds thereof) so deposited.
It shall be a condition to the deposit of cash and/or Government
Obligations and the termination of the Company's obligations pursuant to the
provisions of this Section with respect to the Convertible Debt Securities of
any series under Sections 801, 803, 804 and 1005 and any other covenant
determined pursuant to Section 301 to be subject to this Section and the
inapplicability of the Events of Default contained in Sections 501(4), 501(5),
501(6), 501(7) and 501(8) to the extent set forth above pursuant to the
provisions of this Section with respect to Convertible Debt Securities of any
series that the Company deliver to the Trustee (i) an Officers' Certificate to
the effect that under the laws in effect on the date such money and/or
Government Obligations are deposited with the Trustee, the amount thereof will
be sufficient, after payment of all Federal, state and local taxes in respect
thereof payable by the Trustee, to pay principal (and premium, if any) and
interest when due on the Convertible Debt Securities of such series; and (ii) an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions
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precedent herein provided for relating to the defeasance contemplated in this
Section have been complied with.
It shall be an additional condition to the deposit of cash and/or
Government Obligations and the termination of the Company's obligations pursuant
to the provisions of this Section under Sections 801, 803, 804 and 1005 and any
other covenant determined pursuant to Section 301 to be subject to this Section
and the inapplicability of the Events of Default contained in Section 501(4),
501(5), 501(6), 501(7) and 501(8) to the extent set forth above pursuant to the
provisions of this Section, with respect to the Convertible Debt Securities of
any series then listed on the New York Stock Exchange, that the Company deliver
an Opinion of Counsel that the Convertible Debt Securities of such series will
not be delisted from the New York Stock Exchange as a result of such deposit and
termination.
After a deposit as provided herein, the Trustee shall, upon Company
Request, acknowledge in writing the discharge of the Company's obligations
pursuant to the provisions of this Section with respect to the Convertible Debt
Securities of such series under Sections 801, 803, 804 and 1005 and any other
covenant determined pursuant to Section 301 to be subject to this Section and
the inapplicability of the Events of Default contained in Sections 501(4),
501(5), 501(6), 501(7) and 501(8) to the extent set forth above.
Section 1602. Repayment to Company.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money or Government Obligations not required for the payment
of the principal of (and premium, if any) and interest on the Convertible Debt
Securities of any series for which money or Government Obligations have been
deposited pursuant to Section 1601 held by them at any time.
The Trustee and any Paying Agent shall promptly pay to the Company upon
Company Request any money held by them for the payment of principal (and
premium, if any) and interest that remains unclaimed for two years after the
Maturity of the Convertible Debt Securities for which a deposit has been made
pursuant to Section 1601. After such payment to the Company, the Holders of the
Convertible Debt Securities of such series shall thereafter, as unsecured
general creditors, look only to the Company for the payment thereof.
Section 1603. Indemnity for Government Obligations.
The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the deposited Government
Obligations or the principal or interest received on such Government
Obligations.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
FIDELITY NATIONAL FINANCIAL, INC.
By: _________________________________
Title: _________________________________
_________________________________
By: _________________________________
Title: _________________________________
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<PAGE> 87
STATE OF CALIFORNIA )
)SS.
COUNTY OF ORANGE )
On the ____ day of __________, 1998, before me personally came
___________________, to me known, who, being duly sworn, did depose and say that
he/she resides at ______________________________; that he is a _________________
of Fidelity National Financial, Incorporated, a corporation described in and
which executed the above instrument; that he/she knows the seal of said
corporation; that it was so affixed pursuant to the authority of the Board of
Directors of said corporation; and that he/she signed his/her name thereto
pursuant to like authority.
________________________________________
Notary Public
<PAGE> 88
STATE OF ____________ )
)SS.
COUNTY OF ___________ )
On the _____ day of ______________, 1998, before me personally
came ________________, to me known, who, being duly sworn, did depose and say
that he/she resides at _______________________________________________; that
he/she is an ________________ ________________________________________ of
______________________________, a _____________________ described in and which
executed the above instrument; that he/she knows the seal of said corporation;
that it was so affixed pursuant to the authority of the Board of Directors of
said corporation; and that he/she signed his/her name thereto pursuant to like
authority.
________________________________________
Notary Public
<PAGE> 1
EXHIBIT 4.2
FORM OF CERTIFICATE OF DESIGNATIONS OF PREFERRED STOCK
FIDELITY NATIONAL FINANCIAL, INC.
--------------------------------
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 151 of the
Delaware General Corporation Law
--------------------------------
[CUMULATIVE] [CONVERTIBLE] PREFERRED STOCK, SERIES __
(Par Value [$.0001] Per Share)
--------------------------------
<PAGE> 2
FIDELITY NATIONAL FINANCIAL, INC. a corporation organized and existing
under the laws of the State of Delaware (the "Corporation"), HEREBY CERTIFIES
that the following resolutions were duly adopted by the Board of Directors of
the Corporation (the "Board"), pursuant to authority conferred upon the Board by
the provisions of the Certificate of Incorporation of the Corporation, which
authorizes the issuance of up to 3,000,000 shares of preferred stock, par value
[$.0001] per share, (the "Preferred Stock"):
"RESOLVED that the issuance of a series of Preferred Stock, par value
[$.0001] per share, of the Corporation is hereby authorized and the designation,
preferences and relative, participating, optional, and other special rights, and
qualifications, limitations and restrictions thereof, in addition to those set
forth in the Certificate of Incorporation of the Corporation, are hereby fixed
as follows:
[CUMULATIVE] [CONVERTIBLE] PREFERRED STOCK, SERIES __
1. DESIGNATION AND NUMBER OF SHARES.
(a) The designation of the series of preferred stock, par value
[$.0001] per share, provided for herein shall be "[Cumulative] [Convertible]
Preferred Stock, Series ___" (hereinafter referred to as the `Series __
Preferred Stock') and the number of authorized shares constituting the Series __
Preferred Stock is _________. The number of authorized shares of Series __
Preferred Stock may be reduced by further resolution duly adopted by the Board
and by the filing of a certificate pursuant to the provisions of the Delaware
General Corporation Law stating that such reduction has been so authorized, but
the number of authorized shares of Series __ Preferred Stock shall not be
increased.
(b) All shares of Series __ Preferred Stock purchased, redeemed,
or converted by the Corporation shall be retired and cancelled and shall be
restored to the status of authorized but unissued shares of preferred stock,
without designation as to series, and may thereafter be issued [, but not as
shares of Series __ Preferred Stock].
2. DIVIDENDS.
(a) Holders of shares of Series __ Preferred Stock will be
entitled to receive, when and as declared by the Board or a duly authorized
committee thereof, out of assets of the Corporation legally available for
payment, an annual cash dividend of $_____ per share, payable quarterly on
_____________, ______________, ______________ and _____________ of each year,
commencing _____________, ____. [Dividends on shares of the Series __ Preferred
Stock will be cumulative from the date of initial issuance of such shares of
Series __ Preferred Stock.] Dividends will be payable, in arrears, to holders of
record as they appear on the stock books of the Corporation on such record
dates, not more than [60] days nor less than [10] days preceding the payment
dates thereof, as shall be fixed by the Board or a duly authorized committee
thereof. The amount of dividends payable per share for each dividend period
shall be computed by dividing by four the $______ annual rate. The amount of
dividends payable for the initial dividend period or any period shorter than a
full dividend period shall be calculated on the basis of a 360-day year of
twelve 30-day months.
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<PAGE> 3
(b) (i) No dividends shall be declared or paid or set apart for
payment on any stock of the Corporation ranking, as to dividends, on a parity
with or junior to Series __ Preferred Stock for any period unless full
[cumulative] dividends have been declared and paid or declared and a sum
sufficient for the payment thereof set apart for such payment on shares of
Series __ Preferred Stock for all dividend payment periods terminating on or
prior to the date of payment of such full [cumulative] dividends. Until
dividends are paid in full, as aforesaid, on the shares of Series __ Preferred
Stock and any other series of preferred stock ranking on a parity as to
dividends with Series __ Preferred Stock, all dividends declared upon shares of
Series __ Preferred Stock and any other series of preferred stock ranking on a
parity as to dividends with Series __ Preferred Stock shall be declared pro rata
so that the amount of dividends declared per share on Series __ Preferred Stock
and such other series of preferred stock shall in all cases bear to each other
the same ratio that accrued dividends per share on the shares of Series __
Preferred Stock and such other series of preferred stock bear to each other.
Holders of shares of Series __ Preferred Stock shall not be entitled to any
dividend, whether payable in cash, property, or stock, in excess of full
[cumulative] dividends, as herein provided, on Series __ Preferred Stock. No
interest, or sum of money in lieu of interest, shall be payable in respect of
any dividend payment or payments on Series __ Preferred Stock which may be in
arrears.
(ii) So long as any shares of Series __ Preferred Stock are
outstanding, no dividend (except (a) dividends or distributions paid in shares
of, or options, warrants, or rights to subscribe for or purchase shares of, the
common stock, par value [$0.0001] per share, of the Corporation (the "Common
Stock") or any other stock ranking junior to Series __ Preferred Stock as to
dividends and upon liquidation and (b) pro rata dividends, as provided in
paragraph (b)(i) of this Section 2), shall be declared or paid or set aside for
payment or other distribution declared or made upon the Common Stock or any
other capital stock of the Corporation ranking junior to or on a parity with
Series __ Preferred Stock as to dividends or upon liquidation, nor shall the
Common Stock or any other capital stock of the Corporation ranking junior to or
on a parity with Series __ Preferred Stock as to dividends or upon liquidation
be redeemed, purchased, or otherwise acquired for any consideration (or any
moneys be paid to or made available for a sinking fund for the redemption,
purchase or other acquisition of any shares of any such stock) by the
Corporation (except by conversion into or exchange for stock of the Corporation
ranking junior to Series __ Preferred Stock as to dividends and upon
liquidation), unless, in each case, the full [cumulative] dividends on all
outstanding shares of Series __ Preferred Stock shall have been paid or declared
and set aside for payment of the then-current dividend payment period and all
past dividend payment periods.
3. REDEMPTION.
[(a) The shares of Series __ Preferred Stock may be redeemed at
the option of the Corporation, as a whole, or from time to time in part, at any
time, upon not less than 30 nor
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<PAGE> 4
more than 60 days' prior notice mailed to the holders of the shares to be
redeemed at their addresses as shown on the stock books of the Corporation;
provided, however, that shares of Series __ Preferred Stock shall not be
redeemable prior to ______________, ____. Subject to the foregoing, shares of
Series __ Preferred Stock are redeemable at the following redemption prices per
share (expressed as a percentage of the liquidation preference thereof), if
redeemed during the 12-month period beginning ______________ in the year
indicated:
Year Price Year Price
---- ----- ---- -----
% %
and 100% if redeemed on or after ________________, ____, in each case together
with an amount equal to all dividends (whether or not earned or declared)
accrued and accumulated and unpaid to, but excluding, the date fixed for
redemption.]
[(b) The shares of Series __ Preferred Stock will be redeemed by
the Corporation on the following dates and at the following prices per share
(expressed as a percentage of the liquidation preference thereof):
Number of Shares
Date to be Redeemed Price
---- ---------------- -----
%
In each case, the Corporation will also pay to the holders of the Shares to be
redeemed an amount equal to all dividends (whether or not earned or declared)
accrued and accumulated and unpaid to, but excluding the date fixed for
redemption as specified above.]
(c) The redemption price will be paid by the Corporation in
[cash]. [The redemption price will be paid by the Corporation from the proceeds
of an issuance of [specify form of capital stock. If such issuance does not
occur [prior to ______], or the proceeds to the Corporation of such issuance are
less than the redemption price specified above, then all shares of Series __
Preferred Stock will automatically be converted into shares of Common Stock
pursuant to Section 4.]
(d) If fewer than all of the outstanding shares of Series __
Preferred Stock are to be redeemed, the number of shares to be redeemed shall be
determined by the Board and such shares shall be redeemed pro rata from the
holders of record of shares of Series __ Preferred Stock in proportion to the
number of such shares held by such holders (with adjustments to avoid redemption
of fractional shares).
(e) If the Corporation shall redeem shares of Series __ Preferred
Stock, notice of such redemption shall be mailed or caused to be mailed by the
Corporation by first class mail, postage prepaid, to each holder of the shares
to be redeemed, at such holder's address as the same
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<PAGE> 5
appears on the stock books of the Corporation. Such notice shall be so mailed
not less than 30 nor more than 60 days prior to the date fixed for redemption
(unless the Corporation has issued Depositary Shares representing interests in
Series __ Preferred Stock, in which case notice will be mailed to the depositary
not less than 40 nor more than 70 days prior to the date fixed for redemption).
Each such notice shall state (i) the redemption date, (ii) the number of shares
of Series __ Preferred Stock to be redeemed, (iii) the redemption price, (iv)
the place or places where certificates for such shares of Series __ Preferred
Stock are to be surrendered for payment of the redemption price, (v) that
dividends on the shares to be redeemed will cease to accrue on such redemption
date, and (vi) the date upon which the holders' conversion rights (as
hereinafter defined) as to such shares terminate. If fewer than all shares held
by any holder are to be redeemed, the notice mailed to such holder shall also
specify the number of shares to be redeemed from such holder.
(f) Notwithstanding the foregoing provisions of subsection (a) of
this Section 3, if any dividends on shares of Series __ Preferred Stock are in
arrears, no shares of Series __ Preferred Stock shall be redeemed unless all
outstanding shares of Series __ Preferred Stock are simultaneously redeemed, and
the Corporation shall not purchase or otherwise acquire any shares of Series __
Preferred Stock; provided, however, that the foregoing shall not prevent the
Corporation from purchasing or acquiring shares of Series __ Preferred Stock
pursuant to a purchase or exchange offer made on the same terms to all holders
of outstanding shares of Series __ Preferred Stock.
(g) If notice of redemption has been given under subsection (e)
of this Section 3, then, from and after the redemption date for the shares of
Series __ Preferred Stock called for redemption, dividends on the shares of
Series __ Preferred Stock so called for redemption shall cease to accrue and
such shares shall no longer be deemed to be outstanding, and all rights of the
holders thereof as shareholders of the Corporation (except the right to receive
the redemption price) shall cease. Upon surrender in accordance with such notice
of the certificates for any shares so redeemed (properly endorsed or assigned
for transfer, if the Board or a duly authorized committee thereof shall so
require and the notice shall so state), such shares shall be redeemed by the
Corporation at the redemption price aforesaid. If fewer than all of the shares
represented by any such certificate are redeemed, a new certificate shall be
issued representing the unredeemed shares without cost to the holder thereof.
[4. CONVERSION.]
[(a) Subject to and upon compliance with the provisions of this
Section 4, each holder of Series __ Preferred Stock shall have the right, at
each such holder's option, at any time, to convert any or all of the shares of
Series __ Preferred Stock held by each such holder into the number of fully paid
and nonassessable shares of Common Stock (calculated as to each conversion, for
the purpose of determining the amount of any cash payments provided for under
subsection (c) of this Section 4, to the nearest 1/100 of a share of Common
Stock, with 1/200 of a share of Common Stock being rounded upward) obtained by
dividing the liquidation preference of a share of Series __ Preferred Stock by
the Conversion Price (as defined below) and multiplying such resulting number by
the number of shares of Series __ Preferred Stock to
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<PAGE> 6
be converted, and by surrender of such shares of Series __ Preferred Stock so to
be converted, such surrender to be made in the manner provided in subsection (b)
of this Section 4; provided, however, that the right to convert shares called
for redemption pursuant to Section 3 shall terminate at the close of business on
the date fixed for such redemption unless the Corporation shall default in
making payment of the amount payable upon such redemption.]
[The term "Applicable Price" means (i) in the event of a
Fundamental Change (as hereinafter defined) in which the holders of the Common
Stock receive only cash, the amount of cash received by a holder of one share of
Common Stock and (ii) in the event of any other Fundamental Change, the average
of the reported last sale prices for one share of the Common Stock (determined
as set forth in paragraph (d)(vi) of this Section 4) during the ten Trading Days
(as defined in paragraph (d)(vi) of this Section 4) prior to the record date for
the determination of the holders of Common Stock entitled to receive cash,
securities, property, or other assets in connection with such Fundamental
Change, or, if there is no such record date, prior to the date upon which the
holders of Common Stock shall have the right to receive such cash, securities,
property, or other assets.]
For purposes of this Section 4, the term "Common Stock" shall
mean the Common Stock of the Corporation, par value $0.0001 per share, as the
same exists at the date of this Certificate of Designations or as such stock may
be constituted from time to time, except that for purposes of subsection (e) of
this Section 4, the term "Common Stock" shall also mean and include stock of the
Corporation of any class, whether now or hereafter authorized, which shall have
the right to participate in the distribution of either earnings or assets of the
Corporation without limit as to amount or percentage.
[The term "Common Stock Fundamental Change" means any Fundamental
Change in which more than 50% (by value as determined in good faith by the
Board) of the consideration received by holders of Common Stock consists of
common stock that, for the ten Trading Days (as defined in paragraph (d)(vi) of
this Section 4) prior to such Fundamental Change, has been admitted for listing
on a national securities exchange or quoted on the National Market System of the
National Association of Securities Dealers, Inc. Automated Quotations System.]
The term "Conversion Price" shall mean $_____, as adjusted in
accordance with the provisions of this Section 4.
[The term "Fundamental Change" means the occurrence of any
transaction or event in connection with which all or substantially all the
Common Stock shall be exchanged for, converted into, or acquired for, or shall
constitute solely the right to receive, cash, securities, property, or other
assets (whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise). In the case of a plan involving more than one such transaction or
event, for purposes of adjustment of the Conversion Price, such Fundamental
Change shall be deemed to have occurred when substantially all the Common Stock
shall have been exchanged for, converted into, or acquired for, or shall
constitute solely the right to receive, such cash, securities, property, or
other assets,
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<PAGE> 7
but the adjustment shall be based upon the consideration that the holders of
Common Stock received in the transaction or event as a result of which more than
50% of the Common Stock shall have been exchanged for, converted into, or
acquired for, or shall constitute solely the right to receive, such cash,
securities, property, or other assets.]
[The term "Non-Stock Fundamental Change" means any Fundamental
Change other than a Common Stock Fundamental Change.]
[The term "Purchaser Stock Price" means, with respect to any
Common Stock Fundamental Change, the average of the reported last sale prices
for one share of the common stock received by holders of Common Stock in such
Common Stock Fundamental Change (determined as set forth in paragraph (d)(vi) of
this Section 4 as if such paragraph were applicable to such common stock) during
the ten Trading Days (as defined in paragraph (d)(vi) of this Section 4) prior
to the record date for the determination of the holders of Common Stock entitled
to receive such common stock or, if there is no such record date, prior to the
date upon which the holders of Common Stock shall have the right to receive such
common stock.]
[The term "Reference Market Price" shall initially mean
$__________, and, in the event of any adjustment to the Conversion Price
pursuant to paragraphs (d)(i), (d)(ii), (d)(iii), (d)(iv) or (d)(v)of this
Section 4, the Reference Market Price shall also be adjusted so that the ratio
of the Reference Market Price to the Conversion Price after giving effect to any
such adjustment shall always be the same as the ratio of $_______ to the
Conversion Price set forth in this Certificate of Designations (without regard
to any adjustment thereto).]
(b) In order to exercise the conversion privilege, the holder of
each share of Series __ Preferred Stock to be converted shall surrender the
certificate representing such share at the office of the conversion agent for
the Series __ Preferred Stock in [__________________], appointed for such
purpose by the Corporation, with the Notice of Election to Convert on the back
of such certificate completed and signed. Unless the shares issuable on
conversion are to be issued in the same name as the name in which such share of
Series __ Preferred Stock is registered, each share surrendered for conversion
shall be accompanied by instruments of transfer, in form satisfactory to the
Corporation, duly executed by the holder or the holder's duly authorized
attorney, and by an amount sufficient to pay any transfer or similar tax.
The holders of shares of Series __ Preferred Stock at the close
of business on a dividend payment record date shall be entitled to receive the
dividend payable on such shares (except that holders of shares called for
redemption on a redemption date between such record date and the dividend
payment date shall not be entitled to receive such dividend on such dividend
payment date) on the corresponding dividend payment date, notwithstanding the
conversion thereof or the Corporation's default in payment of the dividend due
on such dividend payment date. However, shares of Series __ Preferred Stock
surrendered for conversion during the period between the close of business on
any dividend payment record date and the opening of business on the
corresponding dividend payment date (except shares called for redemption on a
redemption date during such period) must be accompanied by payment of an amount
equal to the dividend payable on such shares on such dividend payment date. A
holder of shares of Series __
-7-
<PAGE> 8
Preferred Stock on a dividend payment record date who (or whose transferee)
tenders any of such shares for conversion into shares of Common Stock on a
dividend payment date will receive the dividend payable by the Corporation on
such shares of Series __ Preferred Stock on such date, and the converting holder
need not include payment in the amount of such dividend upon surrender of shares
of Series __ Preferred Stock for conversion. Except as provided above, the
Corporation shall make no payment or allowance for unpaid dividends, whether or
not in arrears, on converted shares or for dividends on the shares of Common
Stock issued upon such conversion.
As promptly as practicable after the surrender of the
certificates for shares of Series __ Preferred Stock as aforesaid, the
Corporation shall issue and shall deliver at the office of the conversion agent
to such holder, or on such holder's written order, a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion of
such shares in accordance with the provisions of this Section 4, and any
fractional interest in respect of a share of Common Stock arising upon such
conversion shall be settled as provided in subsection (c) of this Section 4.
Each conversion shall be deemed to have been effected immediately
prior to the close of business on the date on which the certificates for shares
of Series __ Preferred Stock shall have been surrendered and such notice (and,
if applicable, payment of an amount equal to the dividend payable on such
shares) received by the Corporation as aforesaid, and the person or persons in
whose name or names any certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed to have become the holder
or holders of record of the shares represented thereby at such time on such
date, and such conversion shall be at the Conversion Price in effect at such
time on such date, unless the stock transfer books of the Corporation shall be
closed on such date, in which event such person or persons shall be deemed to
have become such holder or holders of record at the close of business on the
next succeeding day on which such stock transfer books are open, but such
conversion shall be at the Conversion Price in effect on the date upon which
such shares shall have been surrendered and such notice (and, if applicable,
payment) received by the Corporation. All shares of Common Stock delivered upon
conversion of the Series __ Preferred Stock will upon delivery be duly and
validly issued and fully paid and nonassessable, free of all liens and charges
and not subject to any preemptive rights.
(c) In connection with the conversion of any shares of Series __
Preferred Stock, no fractional shares or scrip representing fractions of shares
of Common Stock shall be issued upon conversion of Series __ Preferred Stock.
Instead of any fractional interest in a share of Common Stock which would
otherwise be deliverable upon the conversion of a share of Series __ Preferred
Stock or a fraction thereof, the Corporation shall pay to the holder of such
share of Series __ Preferred Stock or fraction thereof an amount in cash
(computed to the nearest cent, with one-half cent being rounded upward) equal to
the reported last sale price (as defined in paragraph (d)(vi) of this Section 4)
of the Common Stock on the Trading Day (as defined in paragraph (d)(vi) of this
Section 4) next preceding the day of conversion multiplied by the fraction of a
share of Common Stock represented by such fractional interest. If more than one
share of Series __ Preferred Stock shall be surrendered for conversion at one
time by the same holder, the number of full shares of Common Stock issuable upon
conversion thereof shall be computed on the basis of the aggregate liquidation
preference of the shares of Series __ Preferred Stock so surrendered.
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<PAGE> 9
(d) The Conversion Price shall be adjusted from time to time as
follows:
(i) In case the Corporation shall (x) pay a dividend or make
a distribution on the Common Stock in shares of Common Stock, (y) subdivide the
outstanding Common Stock into a greater number of shares, or (z) combine the
outstanding Common Stock into a smaller number of shares, the Conversion Price
shall be adjusted so that the holder of any share of Series __ Preferred Stock
thereafter surrendered for conversion shall be entitled to receive the number of
shares of Common Stock of the Corporation which such holder would have owned or
have been entitled to receive after the happening of any of the events described
above had such share been converted immediately prior to the record date in the
case of a dividend or the effective date in the case of subdivision or
combination. An adjustment made pursuant to this paragraph (i) shall become
effective immediately after the record date in the case of a dividend, except as
provided in paragraph (ix) below, and shall become effective immediately after
the effective date in the case of a subdivision or combination.
[(ii) [Except for [list exempted issuances], in] [In] case
the Corporation shall issue rights or warrants to all holders of the Common
Stock entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common Stock at a price
per share less than the current market price per share of Common Stock (as
defined for purposes of this paragraph (ii) in paragraph (vi) below), at the
record date for the determination of shareholders entitled to receive such
rights or warrants, the Conversion Price in effect immediately prior thereto
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction, the numerator of which shall
be the number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of shares of Common Stock which the
aggregate offering price of the total number of shares of Common Stock so
offered would purchase at such current market price, and the denominator of
which shall be the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of additional shares of
Common Stock receivable upon exercise of such rights or warrants. Such
adjustment shall be made successively whenever any such rights or warrants are
issued, and shall become effective immediately, except as provided in paragraph
(ix) below, after such record date. In determining whether any rights or
warrants entitle the holders of the Series __ Preferred Stock to subscribe for
or purchase shares of Common Stock at less than such current market price, and
in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the Corporation
for such rights or warrants plus the exercise price thereof, the value of such
consideration or exercise price, as the case may be, if other than cash, to be
determined by the Board.]
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<PAGE> 10
[(iii) In case the Corporation shall distribute to all
holders of Common Stock any shares of capital stock of the Corporation (other
than Common Stock) or evidences of its indebtedness or assets (excluding cash
dividends or distributions paid from retained earnings of the Corporation) or
rights or warrants to subscribe for or purchase any of its securities (excluding
those rights or warrants referred to in paragraph (ii) above) (any of the
foregoing being hereinafter in this paragraph (iii) called the "Securities"),
then, in each such case, unless the Corporation elects to reserve such
Securities for distribution to the holders of the Series __ Preferred Stock upon
the conversion of the shares of Series __ Preferred Stock so that any such
holder converting shares of Series __ Preferred Stock will receive upon such
conversion, in addition to the shares of the Common Stock to which such holder
is entitled, the amount and kind of such Securities which such holder would have
received if such holder had, immediately prior to the record date for the
distribution of the Securities, converted its shares of Series __ Preferred
Stock into Common Stock, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the date of such distribution by a fraction, the numerator
of which shall be the current market price per share (as defined for purposes of
this paragraph (iii) in paragraph (vi) below) of the Common Stock on the record
date mentioned above less the then fair market value (as determined by the
Board, whose determination shall, if made in good faith, be conclusive) of the
portion of the Securities so distributed applicable to one share of Common
Stock, and the denominator of which shall be the current market price per share
(as defined in paragraph (vi) below) of the Common Stock; provided, however,
that in the event the then fair market value (as so determined) of the portion
of the Securities so distributed applicable to one share of Common Stock is
equal to or greater than the current market price per share (as defined in
paragraph (vi) below) of the Common Stock on the record date mentioned above, in
lieu of the foregoing adjustment, adequate provision shall be made so that each
holder of shares of Series __ Preferred Stock shall have the right to receive
the amount and kind of Securities such holder would have received had such
holder converted each such share of Series __ Preferred Stock immediately prior
to the record date for the distribution of the Securities. Such adjustment shall
become effective immediately, except as provided in paragraph (ix) below, after
the record date for the determination of shareholders entitled to receive such
distribution.]
[IF THERE ARE ANY RIGHTS AGREEMENTS INTO WHICH THE
CORPORATION HAS ENTERED WHICH PROVIDE RIGHTS TO SUBSCRIBE OR PURCHASE SHARES OF
THE CORPORATION'S COMMON STOCK, INSERT THE FOLLOWING LANGUAGE, WITH REFERENCES
TO THE SPECIFIC RIGHTS AGREEMENTS:] [(iv) In the event that the rights issued
under the [Insert name(s) of agreements] dated as of [Insert dates of
agreements] (the "Rights Agreement[s]") become exercisable and the holders
thereof are entitled to subscribe for or purchase shares of Common Stock at a
price per share less than the current market price per share of Common Stock (as
defined for purposes of this paragraph (iv) in paragraph (vi) below), the
Conversion Price in effect immediately prior to the [Distribution Date (as
defined in the Rights Agreement)] shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the Distribution Date by a fraction, the numerator of which shall be
the number of shares of Common Stock outstanding on the Distribution Date plus
the number of shares of Common Stock which the aggregate offering price of the
total number of shares of Common Stock so offered would purchase at such current
market price, and the denominator of which shall be the number of shares of
Common Stock outstanding on the Distribution Date plus the number of additional
shares of Common Stock receivable upon exercise of the rights. In determining
the
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<PAGE> 11
aggregate offering price of such shares of Common Stock, there shall be taken
into account any consideration received by the Corporation for such rights plus
the exercise price thereof, the value of such consideration or exercise price,
as the case may be, if other than cash, to be determined by the Board.]
[(v) If, pursuant to paragraph (ii), (iii) or (iv) above,
the Conversion Price at which a share of Series __ Preferred Stock is
convertible shall have been adjusted because the Corporation has declared a
dividend or made a distribution on the outstanding shares of Common Stock in the
form of any right or warrant to purchase securities of the Corporation, or the
Corporation has issued any such right or warrant, then, upon the expiration of
any such unexercised right or unexercised warrant, the Conversion Price shall
forthwith be adjusted to equal the Conversion Price that would have applied had
such right or warrant never been declared, distributed, or issued.]
[(vi) For the purpose of any computation under paragraph
(ii) [or (iv)] above, the current market price per share of Common Stock on any
date shall be deemed to be the average of the reported last sale prices for the
30 consecutive Trading Days (as defined below) commencing 45 Trading Days before
the date in question. For the purpose of any computation under paragraph (iii)
above, the current market price per share of Common Stock on any date shall be
deemed to be the average of the reported last sales prices for the ten
consecutive Trading Days before the date in question. The reported last sale
price for each day (whether for purposes of paragraph (ii) or paragraph (iii)
[or paragraph (iv)]) shall be the reported last sale price, regular way, or, in
case no sale takes place on such day, the average of the reported closing bid
and asked prices, regular way, in either case as reported on the New York Stock
Exchange Composite Tape or, if the Common Stock is not listed or admitted to
trading on the New York Stock Exchange, on the principal national securities
exchange on which the Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities exchange, on the
National Market System of the National Association of Securities Dealers, Inc.
Automated Quotations System ("NASDAQ") or, if the Common Stock is not quoted on
such National Market System, the average of the closing bid and asked prices on
such day in the over-the-counter market as reported by NASDAQ or, if bid and
asked prices for the Common Stock on each such day shall not have been reported
through NASDAQ, the average of the bid and asked prices for such day as
furnished by any New York Stock Exchange member firm regularly making a market
in the Common Stock selected for such purpose by the Board or a committee
thereof or, if no such quotations are available, the fair market value of the
Common Stock as determined by a New York Stock Exchange member firm regularly
making a market in the Common Stock selected for such purpose by the Board or a
committee thereof. As used herein, the term `Trading Day' with respect to Common
Stock means (x) if the Common Stock is listed or admitted for trading on the New
York Stock Exchange or another national securities exchange, a day on which the
New York Stock Exchange or such other national securities exchange is open for
business or (y) if the Common Stock is quoted on the National Market System of
NASDAQ, a day on which trades may be made on such National Market System or (z)
otherwise, any day other than a Saturday or Sunday or a day on which banking
institutions in the State of New York are authorized or obligated by law or
executive order to close.]
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<PAGE> 12
(vii) No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which by reason
of this paragraph (vii) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment; and provided further that
adjustment shall be required and made in accordance with the provisions of this
Section 4 (other than this paragraph (vii)) not later than such time as may be
required in order to preserve the tax free nature of a distribution to the
holders of Common Stock. All calculations under this Section 4 shall be made to
the nearest cent or to the nearest 1/100 of a share, as the case may be, with
one-half cent and 1/200 of a share, respectively, being rounded upward. Anything
in this subsection (d) to the contrary notwithstanding, the Corporation shall be
entitled to make such reductions in the Conversion Price, in addition to those
required by this subsection (d), as it in its discretion shall determine to be
advisable in order that any stock dividend, subdivision of shares, distribution
of rights or warrants to purchase stock or securities, or distribution of other
assets (other than cash dividends) hereafter made by the Corporation to its
shareholders shall not be taxable.
(viii) Whenever the Conversion Price is adjusted as herein
provided, the Corporation shall promptly file with any conversion agent an
officers' certificate, signed by the Chairman, the President or any Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary, or an
Assistant Secretary of the Corporation, setting forth the Conversion Price after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment, which certificate shall be conclusive evidence of the correctness of
such adjustment. Promptly after delivery of such certificate, the Corporation
shall prepare a notice of such adjustment of the Conversion Price setting forth
the adjusted Conversion Price and the date on which such adjustment becomes
effective and shall mail such notice of such adjustment of the Conversion Price
to the holders of shares of Series __ Preferred Stock at their addresses as
shown on the stock books of the Corporation.
(ix) In any case in which this subsection (d) provides that
an adjustment shall become effective immediately after a record date for an
event, the Corporation may defer until the occurrence of such event (y) issuing
to the holder of any share of Series __ Preferred Stock converted after such
record date and before the occurrence of such event the additional shares of
Common Stock issuable upon such conversion by reason of the adjustment required
by such event over and above the Common Stock issuable upon such conversion
before giving effect to such adjustment and (z) paying to such holder any amount
in cash in lieu of any fractional share of Common Stock pursuant to subsection
(c) of this Section 4.
(e) If:
(i) the Corporation shall declare a dividend (or any other
distribution) on the Common Stock (other than in cash out of retained earnings);
or
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<PAGE> 13
[(ii) [except for [list exempted issuances],] the
Corporation shall authorize the granting to the holders of Common Stock of
rights or warrants to subscribe for or purchase any shares of any class of
capital stock of the Corporation or any other rights or warrants; or]
(iii) there shall be any reclassification or change of the
Common Stock (other than a subdivision or combination of the outstanding Common
Stock and other than a change in the par value, or from par value to no par
value, or from no par value to par value), or any consolidation, merger, or
statutory share exchange to which the Corporation is a party and for which
approval of any shareholders of the Corporation is required, or any sale or
transfer of all or substantially all the assets of the Corporation as an
entirety or any Fundamental Change; or
(iv) there shall be a voluntary or involuntary dissolution,
liquidation, or winding up of the Corporation,
then the Corporation shall cause to be filed with the conversion agent and shall
cause to be mailed to the holders of shares of the Series __ Preferred Stock at
their addresses as shown on the stock books of the Corporation, at least [10]
days prior to the applicable date hereinafter specified, a notice stating (y)
the date on which a record is to be taken for the purpose of such dividend,
distribution, or granting of rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution, or rights or warrants are to be determined, or
(z) the date on which such reclassification, change, consolidation, merger,
statutory share exchange, sale, transfer, Fundamental Change, 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 or other property
deliverable upon such reclassification, change, consolidation, merger, statutory
share exchange, sale, transfer, Fundamental Change, dissolution, liquidation, or
winding up. Failure to give such notice or any defect therein shall not affect
the legality or validity of the proceedings described in subsection (h) of this
Section 4 or in paragraph (d)(i) [, (d)(ii), (d)(iii), or (d)(iv)] of this
Section 4.
(f) The Corporation covenants that it will at all times reserve
and keep available, free from preemptive rights, out of the aggregate of its
authorized but unissued shares of Common Stock, for the purpose of effecting
conversions of the Series __ Preferred Stock, the full number of shares of
Common Stock deliverable upon the conversion of all outstanding shares of Series
__ Preferred Stock not theretofore converted. For purposes of this subsection
(f), the number of shares of Common Stock which shall be deliverable upon the
conversion of all outstanding shares of Series __ Preferred Stock shall be
computed as if at the time of computation all such outstanding shares were held
by a single holder.
Before taking any action which would cause any adjustment
reducing the Conversion Price below the then par value (if any) of the shares of
Common Stock deliverable upon conversion of the Series __ Preferred Stock, the
Corporation will take any corporate action which may, in the opinion of its
counsel, be necessary in order that the Corporation may validly and legally
issue fully paid and nonassessable shares of Common Stock at such adjusted
Conversion Price.
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<PAGE> 14
The Corporation will endeavor to list the shares of Common
Stock required to be delivered upon conversion of the Series __ Preferred Stock
prior to such delivery upon each national securities exchange, if any, upon
which the outstanding Common Stock is listed at the time of such delivery.
Prior to the delivery of any securities which the
Corporation shall be obligated to deliver upon conversion of the Series __
Preferred Stock, the Corporation will endeavor to comply with all federal and
state laws and regulations thereunder requiring the registration of such
securities with, or any approval of or consent to the delivery thereof by, any
governmental authority.
(g) The Corporation will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue or delivery of
shares of Common Stock on conversions of the Series __ Preferred Stock pursuant
hereto; provided, however, that the Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the holder of
the Series __ Preferred Stock to be converted and no such issue or delivery
shall be made unless and until the person requesting such issue or delivery has
paid to the Corporation the amount of any such tax or has established, to the
satisfaction of the Corporation, that such tax has been paid.
(h) Notwithstanding any other provision herein to the contrary,
if any of the following events occur, namely (w) any reclassification or change
of outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination of the Common Stock), (x) any consolidation,
merger, or combination of the Corporation with or into another corporation as a
result of which holders of Common Stock shall be entitled to receive stock,
securities, or other property or assets (including cash) with respect to or in
exchange for such Common Stock, [(y) any sale or conveyance of the properties
and assets of the Corporation as, or substantially as, an entirety to any other
entity as a result of which holders of Common Stock shall be entitled to receive
stock, securities, or other property or assets (including cash) with respect to
or in exchange for such Common Stock,] or (z) any Fundamental Change (including
any event referred to in the foregoing clauses [(w), (x), or (y)] that
constitutes a Fundamental Change), then appropriate provision shall be made so
that the holder of each share of Series __ Preferred Stock then outstanding
shall have the right to convert such share into the kind and amount of the
shares of stock and other securities or property or assets (including cash) that
would have been receivable upon such reclassification, change, consolidation,
merger, combination, sale, conveyance, or Fundamental Change by a holder of the
number of shares of Common Stock issuable upon conversion of such share of
Series __ Preferred Stock immediately prior to such reclassification, change,
consolidation, merger, combination, sale, conveyance, or Fundamental Change [;
provided, however, that, if the event referred to in clauses [(w) through (z)]
above constitutes a Non-Stock Fundamental Change, each holder of Series __
Preferred Stock shall be entitled, upon conversion thereof, to receive such
amount of shares of stock, other securities, or
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<PAGE> 15
property or assets (including cash) as is determined by the number of shares of
Common Stock receivable upon conversion at the Conversion Price as adjusted in
accordance with clause (i) of the following paragraph of this subsection (h);
and provided, further, that, if the event referred to in clauses [(w) through
(z)] above constitutes a Common Stock Fundamental Change, the foregoing
provisions of this subsection (h) shall not apply, but each holder of Series __
Preferred Stock shall be entitled, upon conversion thereof at any time following
such Common Stock Fundamental Change, to receive such number of shares of common
stock of the successor or acquiring entity as is determined by use of the
Conversion Price as adjusted in accordance with clause (ii) of the following
paragraph of this subsection (h)]. The adjustments described in this subsection
(h) shall be subject to further adjustments as appropriate that shall be as
nearly equivalent as may be practicable to the relevant adjustments provided for
in this Section 4. If, in the case of any such consolidation, merger,
combination, sale, conveyance, or Fundamental Change, the stock or other
securities and property receivable thereupon by a holder of shares of Common
Stock include shares of stock, securities, or other property or assets
(including cash) of an entity other than the successor or acquiring entity, as
the case may be, in such consolidation, merger, combination, sale, conveyance,
or Fundamental Change, then the Corporation shall enter into an agreement with
such other entity for the benefit of the holders of Series __ Preferred Stock
that shall contain such provisions to protect the interests of such holders as
the Board shall reasonably consider necessary by reason of the foregoing.
[For purposes of calculating any adjustment to be made in
connection with the occurrence of a Fundamental Change:]
[(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price shall be deemed to be the lower of (1) the Conversion Price in
effect immediately prior to such Non-Stock Fundamental Change and (2) the
product of (a) the greater of the Applicable Price and the Reference Market
Price and (b) a fraction, the numerator of which is $_____ and the denominator
of which is the amount at which one share of Series __ Preferred Stock would be
redeemed by the Corporation if the redemption date were the date of such
Non-Stock Fundamental Change (such denominator being the sum of (x) the product
of the percentage (expressed as a decimal) set forth in the table in Section 3
above or, for the period commencing ________________, ____, and ending
___________________, ____, the 12-month period commencing _______________, ____,
the 12-month period commencing __________________, ____, and the 12-month period
commencing ____________, ____, ____%, ____%, ____%, and ____%, respectively, and
$_____, and (y) any then-accrued [and then-accumulated and unpaid] dividends on
the Series __ Preferred Stock); provided, however, that if there were accrued
[or accumulated and unpaid] dividends with respect to the Series __ Preferred
Stock at the time of such Non-Stock Fundamental Change (`Passed Dividends') and
if, thereafter, all (or any portion) of such Passed Dividends are paid by the
Corporation, then the Conversion Price to be used in determining the amount of
consideration to which holders of Series __ Preferred Stock who have not
converted their shares of Series __ Preferred Stock shall be entitled upon
conversion thereof shall be deemed to be the Conversion Price that would have
been used in making such determination if all (or such portion) of such Passed
Dividends had not been accrued or accumulated and unpaid at such time; and]
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<PAGE> 16
[(ii) in the case of a Common Stock Fundamental Change, the
Conversion Price of the shares of Series __ Preferred Stock immediately
following such Common Stock Fundamental Change shall be the Conversion Price in
effect immediately prior to such Common Stock Fundamental Change multiplied by a
fraction, the numerator of which is the Purchaser Stock Price and the
denominator of which is the Applicable Price; provided, however, that in the
event of a Common Stock Fundamental Change in which (A) 100% by value of the
consideration received by a holder of Common Stock is common stock of the
successor, acquiror, or other third party (and cash, if any, is paid with
respect to any fractional interests in such common stock resulting from such
Common Stock Fundamental Change) and (B) all of the Common Stock of the Company
shall have been exchanged for, converted into, or acquired for [common stock of
the successor, acquiror, or other third party], the Conversion Price of the
shares of Series __ Preferred Stock immediately following such Common Stock
Fundamental Change shall be the Conversion Price in effect immediately prior to
such Common Stock Fundamental Change multiplied by a fraction, the numerator of
which is one (1) and the denominator of which is the number of shares of common
stock of the successor, acquiror, or other third party received by a holder of
one share of Common Stock as a result of such Common Stock Fundamental Change.]]
5. LIQUIDATION RIGHTS.
(a) Upon the dissolution, liquidation, or winding up of the
Corporation, the holders of the shares of Series __ Preferred Stock shall be
entitled to receive and to be paid out of the assets of the Corporation
available for distribution to its shareholders, before any payment or
distribution shall be made on the Common Stock or any other class of stock
ranking junior to Series __ Preferred Stock upon liquidation, the amount of
$_____ per share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of final
distribution.
(b) Neither the sale of all or substantially all of the property
and assets of the Corporation, nor the merger or consolidation of the
Corporation into or with any other corporation, nor the merger of any other
corporation into [or with] the Corporation shall be deemed to be a dissolution,
liquidation, or winding up, voluntary or involuntary, for the purposes of this
Section 5.
(c) After the payment to the holders of the shares of Series __
Preferred Stock of the full preferential amounts provided for in this Section 5,
the holders of Series __ Preferred Stock, as such, shall have no right or claim
to any of the remaining assets of the Corporation.
(d) In the event the assets of the Corporation available for
distribution to the holders of shares of Series __ Preferred Stock upon any
dissolution, liquidation, or winding up of the Corporation, whether voluntary or
involuntary, shall be insufficient to pay in full all amounts to which such
holders are entitled pursuant to subsection (a) of this Section 5, no such
distribution shall be made on account of any shares of any other series of
preferred stock or other capital stock of the Corporation ranking on a parity
with the shares of Series __ Preferred Stock
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<PAGE> 17
upon such dissolution, liquidation, or winding up unless proportionate
distributive amounts shall be paid on account of the shares of Series __
Preferred Stock, ratably, in proportion to the full distributable amounts for
which holders of all such parity shares are respectively entitled upon such
dissolution, liquidation, or winding up.
(e) Subject to the rights of the holders of the shares of any
series or class or classes of stock ranking on a parity with or prior to the
shares of Series __ Preferred Stock upon liquidation, dissolution, or winding
up, upon any liquidation, dissolution, or winding up of the Corporation, after
payment shall have been made in full to the holders of the shares of Series __
Preferred Stock as provided in this Section 5, but not prior thereto, any other
series or class or classes of stock ranking junior to the shares of Series __
Preferred Stock upon liquidation shall, subject to the respective terms and
provisions (if any) applying thereto, be entitled to receive any and all assets
remaining to be paid or distributed, and the holders of the shares of Series __
Preferred Stock shall not be entitled to share therein.
6. RANKING. For the purposes of this resolution, any stock of any series
or class or classes of the Corporation shall be deemed to rank:
(a) prior to the shares of Series __ Preferred Stock, either as
to dividends or upon liquidation, if the holders of such series or class or
classes shall be entitled to the receipt of dividends or of amounts
distributable upon dissolution, liquidation, or winding up of the Corporation,
as the case may be, in preference or priority to the holders of shares of Series
__ Preferred Stock;
(b) on a parity with shares of Series __ Preferred Stock, either
as to dividends or upon liquidation, whether or not the dividend rates, dividend
payment dates, or redemption or liquidation prices per share, or sinking fund
provisions, if any, be different from those of Series __ Preferred Stock, if the
holders of such stock shall be entitled to the receipt of dividends or of
amounts distributable upon dissolution, liquidation, or winding up of the
Corporation, as the case may be, in proportion to their respective dividend
rates or liquidation prices, without preference or priority, one over the other,
as between the holders of such stock and the holders of shares of Series __
Preferred Stock; and
(c) junior to shares of Series __ Preferred Stock, either as to
dividends or upon liquidation, if such class shall be Common Stock or if the
holders of shares of Series __ Preferred Stock shall be entitled to receipt of
dividends or of amounts distributable upon dissolution, liquidation, or winding
up of the Corporation, as the case may be, in preference or priority to the
holders of shares of such series or class or classes.
7. PRIORITY OF SERIES __ PREFERRED STOCK. The shares of Series __
Preferred Stock will rank on a parity, both as to payment of dividends and the
distribution of assets upon liquidation, with the Corporation's
[______________________________________]. The Series __ Preferred Stock will
rank prior, both as to payment of dividends and the distribution of assets upon
liquidation, to the Common Stock and the Corporation's [DESCRIBE ANY OTHER
STOCK, AS APPLICABLE].
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<PAGE> 18
8. VOTING RIGHTS. The shares of Series __ Preferred Stock, except as
hereinafter set forth or as otherwise from time to time required by law, shall
not have voting rights.
So long as any shares of Series ___ Preferred Stock remain
outstanding, the consent of the holders of at least two-thirds of the shares of
Series __ Preferred Stock outstanding at the time (voting separately as a class
together with all other series of Preferred Stock (1) ranking on a parity with
the Series __ Preferred Stock either as to dividends or the distribution of
assets upon liquidation, dissolution or winding up and (2) upon which voting
rights similar to those of Series __ Preferred Stock have been conferred and are
exercisable) given in person or by proxy, either in writing or at any special or
annual meeting called for the purpose, shall be necessary to permit, effect or
validate any one or more of the following:
(a) the authorization, creation or issuance, or any increase in
the authorized or issued amount, of any class or series of stock ranking prior
to the Series __ Preferred Stock with respect to payment of dividends or the
distribution of assets on liquidation, dissolution or winding up, or
(b) the amendment, alteration or repeal, whether by merger,
consolidation or otherwise, of any of the provisions of the Certificate of
Incorporation or of the resolutions set forth in a Certificate of Designations
for the Series __ Preferred Stock [and the preferences and relative,
participating, optional and other special rights and qualifications, limitations
and restrictions thereof] which would materially and adversely affect any right,
preference, privilege or voting power of the Series __ Preferred Stock or of the
holders thereof; provided, however, that any increase in the amount of
authorized Preferred Stock or the creation and issuance of another series of
Preferred Stock, or any increase in the amount of authorized shares of any
series of Preferred Stock, in each case ranking on a parity with or junior to
the Series __ Preferred Stock with respect to the payment of dividends and the
distribution of assets upon liquidation, dissolution or winding up, shall not be
deemed to materially and adversely affect such rights, preferences, privileges
or voting powers.
The foregoing voting provisions shall not apply if, at or prior
to the time when the act with respect to which such vote would otherwise be
required shall be effected, all outstanding shares of Series __ Preferred Stock
shall have been redeemed or sufficient funds shall have been deposited in trust
to effect such redemption.
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<PAGE> 19
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations
to be signed by __________________, its ___________________, and attested by
____________________, its _________________, whereby such ____________________
affirms, under penalties of perjury, that this Certificate of Designations is
the act and deed of the Corporation and that the facts stated herein are true,
this ____ day of ____________, ____.
FIDELITY NATIONAL FINANCIAL, INC.
By: ______________________________
Name:
Title:
Attest:
By: _____________________________________
Name:
Title:
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<PAGE> 1
EXHIBIT 4.3
FORM OF DEPOSIT AGREEMENT
WITH RESPECT TO THE DEPOSITARY SHARES
================================================================================
FIDELITY NATIONAL FINANCIAL, INC.,
[_______________________________], AS DEPOSITARY
AND
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
DEPOSIT AGREEMENT
DATED AS OF ___________
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
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ARTICLE I
DEFINITIONS
Certificate............................................................................... 1
Company................................................................................... 1
Deposit Agreement......................................................................... 1
Depositary................................................................................ 1
Depositary Shares......................................................................... 1
Depositary's Agent........................................................................ 1
Depositary's Office....................................................................... 2
Receipt................................................................................... 2
Record holder............................................................................. 2
Registrar................................................................................. 2
Stock..................................................................................... 2
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY;
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.01. Form and Transfer of Receipts.............................................. 2
Section 2.02. Deposit of Preferred Stock; Execution and Delivery of Receipts in
Respect Thereof............................................................ 3
Section 2.03. Redemption of Preferred Stock.............................................. 4
Section 2.04. Registration of Transfer of Receipts....................................... 5
Section 2.05. Split-ups and Combinations of Receipts; Surrender of Receipts and
Withdrawal of Preferred Stock.............................................. 5
Section 2.06. Limitations on Execution and Delivery, Transfer, Surrender and
Exchange of Receipts....................................................... 6
Section 2.07. Lost Receipts, etc......................................................... 6
Section 2.08. Cancellation and Destruction of Surrendered Receipts....................... 7
Section 2.09. Conversion of Preferred Stock into Common Stock............................ 7
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.01. Filing Proofs, Certificates and Other Information.......................... 7
Section 3.02. Payment of Taxes or Other Governmental Charges............................. 7
Section 3.03. Warranty as to Preferred Stock............................................. 8
</TABLE>
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TABLE OF CONTENTS (Continued)
<TABLE>
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ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.01. Cash Distributions......................................................... 8
Section 4.02. Distributions Other than Cash, Rights, Preferences or Privileges........... 8
Section 4.03. Subscription Rights, Preferences or Privileges............................. 9
Section 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders of
Receipts................................................................... 10
Section 4.05. Voting Rights.............................................................. 10
Section 4.06. Changes Affecting Deposited Securities and Reclassifications,
Recapitalizations, etc..................................................... 10
Section 4.07. Inspection of Reports...................................................... 11
Section 4.08. Lists of Receipt Holders................................................... 11
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
Section 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary; Registrar...................................................... 11
Section 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company...................... 12
Section 5.03. Obligations of the Depositary, the Depositary's Agents, the
Registrar and the Company.................................................. 12
Section 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary....................................................... 13
Section 5.05. Corporate Notices and Reports.............................................. 14
Section 5.06. Indemnification by the Company............................................. 14
Section 5.07. Charges and Expenses....................................................... 14
ARTICLE VI
AMENDMENT AND TERMINATION
Section 6.01. Amendment.................................................................. 15
Section 6.02. Termination................................................................ 15
ARTICLE VII
MISCELLANEOUS
Section 7.01. Counterparts............................................................... 15
Section 7.02. Exclusive Benefit of Parties............................................... 15
Section 7.03. Invalidity of Provisions................................................... 15
Section 7.04. Notices.................................................................... 16
Section 7.05. Depositary's Agents........................................................ 16
Section 7.06. Holders of Receipts Are Parties............................................ 16
Section 7.07. Governing Law.............................................................. 16
Section 7.08. Inspection of Deposit Agreement............................................ 16
Section 7.09. Headings................................................................... 17
</TABLE>
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<PAGE> 4
DEPOSIT AGREEMENT
dated as of _________,
among
FIDELITY NATIONAL FINANCIAL, INC.,
a Delaware corporation,
[_____________________________________],
and the holders from time to time of the
Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of shares of [Cumulative] [Convertible]
Preferred Stock, Series ___, par value [$.0001] per share (the "Preferred
Stock"), of FIDELITY NATIONAL FINANCIAL, INC. with the Depositary for the
purposes set forth in this Deposit Agreement and for the issuance hereunder of
Receipts evidencing Depositary Shares in respect of the Preferred Stock so
deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed hereto, with appropriate insertions, modifications and omissions, as
hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated, apply to the respective terms used in this Deposit Agreement:
"Certificate" shall mean the certificate of designations filed with the
Secretary of State of Delaware establishing the Preferred Stock as a series of
preferred stock of the Company.
"Company" shall mean Fidelity National Financial, Inc., a Delaware
corporation, and its successors.
"Deposit Agreement" shall mean this Deposit Agreement, as amended or
supplemented from time to time.
1
<PAGE> 5
"Depositary" shall mean [__________________________], and any successor
as Depositary hereunder.
"Depositary Shares" shall mean Depositary Shares, each representing [one
quarter] of a share of Preferred Stock and evidenced by a Receipt.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary's Office" shall mean the office of the Depositary in
[________________________], at which at any particular time its depositary
receipt business shall be administered.
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
"Registrar" shall mean any bank or trust company which shall be
appointed to register ownership and transfers of Receipts as herein provided.
ARTICLE II
FORM OF RECEIPTS; DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY;
TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 201. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall be
engraved or printed or lithographed on steel-engraved borders and shall be
substantially in the form set forth in Exhibit A annexed to this Deposit
Agreement, with appropriate insertions, modifications and omissions, as
hereinafter provided. Pending the preparation of definitive Receipts, the
Depositary, upon the written order of the Company or any holder of Preferred
Stock, as the case may be, delivered in compliance with Section 2.02, shall
execute and deliver temporary Receipts which are printed, lithographed,
typewritten, mimeographed or otherwise substantially of the tenor of the
definitive Receipts in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the persons
executing such Receipts may determine, as evidenced by their execution of such
Receipts. If temporary Receipts are issued, the Company and the Depositary will
cause definitive Receipts to be prepared without unreasonable delay. After the
preparation of definitive Receipts, the temporary Receipts shall be exchangeable
for definitive Receipts upon surrender of the temporary Receipts at an office
described in the last paragraph of Section 2.02, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Receipts, the
Depositary shall execute and deliver in exchange therefor definitive Receipts
representing the same number of Depositary Shares as represented by the
surrendered temporary Receipt or Receipts. Such exchange shall be made at the
Company's expense and without any charge therefor. Until so exchanged, the
temporary Receipts shall in all respects be entitled to the same benefits under
this Deposit Agreement, and with respect to the Preferred Stock, as definitive
Receipts.
2
<PAGE> 6
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; provided, that such signature may
be a facsimile if a Registrar for the Receipts (other than the Depositary) shall
have been appointed and such Receipts are countersigned by manual signature of a
duly authorized officer of the Registrar. No Receipt shall be entitled to any
benefits under this Deposit Agreement or be valid or obligatory for any purpose
unless it shall have been executed manually by a duly authorized officer of the
Depositary or, if a Registrar for the Receipts (other than the Depositary) shall
have been appointed, by manual or facsimile signature of a duly authorized
officer of the Depositary and countersigned manually by a duly authorized
officer of such Registrar. The Depositary shall record on its books each Receipt
so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number of whole Depositary
Shares up to but not in excess of __________ Depositary Shares for any
particular Receipt.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Deposit Agreement as may be required by the Depositary or required to comply
with any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange upon which the Preferred Stock, the
Depositary Shares or the Receipts may be listed or to conform with any usage
with respect thereto, or to indicate any special limitations or restrictions to
which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt which is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY OF
RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of this Deposit
Agreement, the Company or any holder of Preferred Stock may from time to time
deposit shares of the Preferred Stock under this Deposit Agreement by delivery
to the Depositary of a certificate or certificates for the Preferred Stock to be
deposited, properly endorsed or accompanied, if required by the Depositary, by a
duly executed instrument of transfer or endorsement, in form satisfactory to the
Depositary, together with all such certifications as may be required by the
Depositary in accordance with the provisions of this Deposit Agreement, and
together with a written order of the Company or such holder, as the case may be,
directing the Depositary to execute and deliver to, or upon the written order
of, the person or persons stated in such order a Receipt or Receipts for the
number of Depositary Shares representing such deposited Preferred Stock.
3
<PAGE> 7
Deposited Preferred Stock shall be held by the Depositary at the
Depositary's Office or at such other place or places as the Depositary shall
determine.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock deposited in accordance with the provisions of this Section,
together with the other documents required as above specified, and upon
recordation of the Preferred Stock on the books of the Company in the name of
the Depositary or its nominee, the Depositary, subject to the terms and
conditions of this Deposit Agreement, shall execute and deliver, to or upon the
order of the person or persons named in the written order delivered to the
Depositary referred to in the first paragraph of this Section, a Receipt or
Receipts for the number of Depositary Shares representing the Preferred Stock so
deposited and registered in such name or names as may be requested by such
person or persons.
The Depositary shall execute and deliver such Receipt or Receipts at the
Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case of dividends or
other distributions of Preferred Stock, if any, there shall be deposited
hereunder not more than _________ shares of Preferred Stock.
SECTION 2.03. REDEMPTION OF PREFERRED STOCK. Whenever the Company shall
elect to redeem shares of Preferred Stock in accordance with the provisions of
the Certificate, if the Certificate provides for such redemption, it shall
(unless otherwise agreed in writing with the Depositary) give the Depositary not
less than 40 nor more than 70 days' notice of the date of such proposed
redemption of Preferred Stock, which notice shall be accompanied by a
certificate from the Company stating that such redemption of Preferred Stock is
in accordance with the provisions of the Certificate. Such notice, if given more
than 50 days prior to the redemption date, shall be in addition to the notice
required to be given for redemption pursuant to the Certificate. On the date of
such redemption, provided that the Company shall then have paid in full to the
Depositary the redemption price of the Preferred Stock to be redeemed, plus any
accrued and unpaid dividends thereon, the Depositary shall redeem the number of
Depositary Shares representing such Preferred Stock. The Depositary shall mail
notice of such redemption and the proposed simultaneous redemption of the number
of Depositary Shares representing the Preferred Stock to be redeemed,
first-class postage prepaid, not less than 30 and not more than 60 days prior to
the date fixed for redemption of such Preferred Stock and Depositary Shares (the
"Redemption Date"), to the record holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such holders as they
appear on the records of the Depositary; but neither failure to mail any such
notice to one or more such holders nor any defect in any notice to one or more
such holders shall affect the sufficiency of the proceedings for redemption as
to other holders. Each such notice shall state: (i) the Redemption Date;
(ii) the number of Depositary Shares to be redeemed and, if less than all the
Depositary Shares held by any such
4
<PAGE> 8
holder are to be redeemed, the number of such Depositary Shares held by such
holder to be so redeemed; (iii) the redemption price; (iv) the place or places
where Receipts evidencing Depositary Shares are to be surrendered for payment of
the redemption price; and (v) that dividends in respect of the Preferred Stock
represented by the Depositary Shares to be redeemed will cease to accumulate on
such Redemption Date. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be selected on
a pro rata basis as determined by the Company.
Notice having been mailed by the Depositary as aforesaid, from and after
the Redemption Date (unless the Company shall have failed to redeem the shares
of Preferred Stock to be redeemed by it as set forth in the Company's notice
provided for in the preceding paragraph) all dividends in respect of the shares
of Preferred Stock so called for redemption shall cease to accumulate, the
Depositary Shares being redeemed from such proceeds shall be deemed no longer to
be outstanding, all rights of the holders of Receipts evidencing such Depositary
Shares (except the right to receive the redemption price) shall, to the extent
of such Depositary Shares cease and terminate and, upon surrender in accordance
with such notice of the Receipts evidencing any such Depositary Shares (properly
endorsed or assigned for transfer, if the Depositary shall so require), such
Depositary Shares shall be redeemed by the Depositary at a redemption price per
Depositary Share equal to [ %] of the redemption price per share paid in respect
of the shares of Preferred Stock plus all money and other property, if any,
represented by such Depositary Shares, including all amounts paid by the Company
in respect of dividends which on the Redemption Date have accumulated on the
shares of Preferred Stock to be so redeemed and have not theretofore been paid.
If less than all the Depositary Shares are called for redemption, the
Depositary will call for redemption Receipts evidencing the number of Depositary
Shares to be redeemed on a pro rata basis. If less than all the Depositary
Shares evidenced by a Receipt are called for redemption, the Depositary will
deliver to the holder of such Receipt upon its surrender to the Depositary,
together with the redemption payment, a new Receipt evidencing the Depositary
Shares evidenced by such prior Receipt and not called for redemption.
SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms
and conditions of this Deposit Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF
RECEIPTS AND WITHDRAWAL OF PREFERRED STOCK. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
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Any holder of a Receipt or Receipts representing any number of whole
shares of Preferred Stock may withdraw the Preferred Stock and all money and
other property, if any, represented thereby by surrendering such Receipt or
Receipts at the Depositary's Office or at such other offices as the Depositary
may designate for such withdrawals. Thereafter, without unreasonable delay, the
Depositary shall deliver to such holder, or to the person or persons designated
by such holder as hereinafter provided, the number of whole shares of Preferred
Stock and all money and other property, if any, represented by the Receipt or
Receipts so surrendered for withdrawal, but holders of such whole shares of
Preferred Stock will not thereafter be entitled to deposit such Preferred Stock
hereunder or to receive Depositary Shares therefor. If a Receipt delivered by
the holder to the Depositary in connection with such withdrawal shall evidence a
number of Depositary Shares in excess of the number of Depositary Shares
representing the number of whole shares of Preferred Stock to be so withdrawn,
the Depositary shall at the same time, in addition to such number of whole
shares of Preferred Stock and such money and other property, if any, to be so
withdrawn, deliver to such holder, or (subject to Section 2.03) upon his order,
a new Receipt evidencing such excess number of Depositary Shares. Delivery of
the Preferred Stock and money and other property being withdrawn may be made by
the delivery of such certificates, documents of title and other instruments as
the Depositary may deem appropriate.
If the Preferred Stock and the money and other property being withdrawn
are to be delivered to a person or persons other than the record holder of the
Receipt or Receipts being surrendered for withdrawal of Preferred Stock, such
holder shall execute and deliver to the Depositary a written order so directing
the Depositary and the Depositary may require that the Receipt or Receipts
surrendered by such holder for withdrawal of such shares of Preferred Stock be
properly endorsed in blank or accompanied by a properly executed instrument of
transfer in blank.
Delivery of the Preferred Stock and the money and other property, if
any, represented by Receipts surrendered for withdrawal shall be made by the
Depositary at the Depositary's Office, except that, at the request, risk and
expense of the holder surrendering such Receipt or Receipts and for the account
of the holder thereof, such delivery may be made at such other place as may be
designated by such holder.
SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER
AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution and
delivery, registration of transfer, split-up, combination, surrender or exchange
of any Receipt, the Depositary, any of the Depositary's Agents or the Company
may require payment to it of a sum sufficient for the payment (or, in the event
that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Deposit Agreement.
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The deposit of Preferred Stock may be refused, the delivery of Receipts
against Preferred Stock may be suspended, the registration of transfer of
Receipts may be refused and the registration of transfer, surrender or exchange
of outstanding Receipts may be suspended (i) during any period when the register
of shareholders of the Company is closed, or (ii) if any such action is deemed
necessary or advisable by the Depositary, any of the Depositary's Agents or the
Company at any time or from time to time because of any requirement of law or of
any government or governmental body or commission or under any provision of this
Deposit Agreement.
SECTION 2.07. LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof, and (ii) the furnishing of the Depositary with an
indemnity bond satisfactory to it.
SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All
Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
[SECTION 2.09. CONVERSION OF PREFERRED STOCK INTO COMMON STOCK. It is
understood and agreed that the Depositary Shares are not convertible into the
Common Stock, par value [$0.0001] per share, of the Company (the "Common Stock")
or any other securities or property of the Company. Nevertheless, as a matter of
convenience, the Company hereby agrees to accept (or to cause its conversion
agent to accept) the delivery of Receipts for the purpose of effecting
conversions of the Preferred Stock utilizing the same procedures as those
provided for delivery of Preferred Stock certificates to effect such conversions
in accordance with the terms and conditions of the Certificate; provided,
however, that only whole Depositary Shares may be so submitted for conversion.
If fewer than all of the Depositary Shares evidenced by a Receipt are to be
converted, the Company shall instruct the Depositary to issue a new Receipt or
Receipts for the Depositary Shares not to be converted. For this purpose, a
holder of a Receipt or Receipts may surrender such Receipt or Receipts to the
Company at the Depositary's Office or at such other office as the Company may
from time to time designate for such purpose, together with a duly completed and
executed Notice of Conversion in the form included in the Receipt. In all cases,
the foregoing shall be conditioned upon compliance in full by the holder of such
Receipt or Receipts with the terms and conditions of the Certificate and of this
Deposit Agreement. The Company shall instruct the Depositary to cancel each
Receipt surrendered for such conversion and to deliver to the Company any
certificates for related Preferred Stock so converted, and the Company will
cancel such Preferred Stock certificates.]
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ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any
holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal of the Preferred Stock represented by
the Depositary Shares evidenced by any Receipt or the distribution of any
dividend or other distribution or the sale of any rights or of the proceeds
thereof until such proof or other information is filed or such certificates are
executed or such representations and warranties are made.
SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Holders of
Receipts shall be obligated to make payments to the Depositary of certain
charges and expenses, as provided in Section 5.07. Registration of transfer of
any Receipt or any withdrawal of Preferred Stock and all money or other
property, if any, represented by the Depositary Shares evidenced by such Receipt
may be refused until any such payment due is made, and any dividends, interest
payments or other distributions may be withheld or any part of or all the
Preferred Stock or other property represented by the Depositary Shares evidenced
by such Receipt and not theretofore sold may be sold for the account of the
holder thereof (after attempting by reasonable means to notify such holder prior
to such sale), and such dividends, interest payments or other distributions or
the proceeds of any such sale may be applied to any payment of such charges or
expenses, the holder of such Receipt remaining liable for any deficiency.
SECTION 3.03. WARRANTY AS TO PREFERRED STOCK. The Company hereby
represents and warrants that the Preferred Stock, when issued, will be validly
issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Preferred Stock and the issuance of Receipts.
ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall receive
any cash dividend or other cash distribution on Preferred Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the
respective numbers of Depositary Shares evidenced by the Receipts held by such
holders; provided, however, that in case the Company or the Depositary shall be
required to withhold and shall withhold from any cash dividend or other cash
distribution in respect of the Preferred Stock an amount on account of taxes,
the amount made available for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly. The Depositary shall
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distribute or make available for distribution, as the case may be, only such
amount, however, as can be distributed without attributing to any holder of
Depositary Shares a fraction of one cent, and any balance not so distributable
shall be held by the Depositary (without liability for interest thereon) and
shall be added to and be treated as part of the next sum received by the
Depositary for distribution to record holders of Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES OR
PRIVILEGES. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon Preferred Stock, the Depositary
shall, subject to Sections 3.01 and 3.02, distribute to record holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders, in any manner that the Depositary may deem
equitable and practicable for accomplishing such distribution. If in the opinion
of the Depositary such distribution cannot be made proportionately among such
record holders, or if for any other reason (including any requirement that the
Company or the Depositary withhold an amount on account of taxes) the Depositary
deems, after consultation with the Company, such distribution not to be
feasible, the Depositary may, with the approval of the Company, adopt such
method as it deems equitable and practicable for the purpose of effecting such
distribution, including the sale (at public or private sale) of the securities
or property thus received, or any part thereof, at such place or places and upon
such terms as it may deem proper. The net proceeds of any such sale shall,
subject to Sections 3.01 and 3.02, be distributed or made available for
distribution, as the case may be, by the Depositary to record holders of
Receipts as provided by Section 4.01 in the case of a distribution received in
cash. The Company shall not make any distribution of such securities unless the
Company shall have provided an opinion of counsel stating that such securities
have been registered under the Securities Act of 1933 or do not need to be
registered.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the
Company shall at any time offer or cause to be offered to the persons in whose
names Preferred Stock is recorded on the books of the Company any rights,
preferences or privileges to subscribe for or to purchase any securities or any
rights, preferences or privileges of any other nature, such rights, preferences
or privileges shall in each such instance be made available by the Depositary to
the record holders of Receipts in such manner as the Depositary may determine,
either by the issue to such record holders of warrants representing such rights,
preferences or privileges or by such other method as may be approved by the
Depositary in its discretion with the approval of the Company; provided,
however, that (i) if at the time of issue or offer of any such rights,
preferences or privileges the Depositary determines that it is not lawful or
(after consultation with the Company) not feasible to make such rights,
preferences or privileges available to holders of Receipts by the issue of
warrants or otherwise, or (ii) if and to the extent so instructed by holders of
Receipts who do not desire to exercise such rights, preferences or privileges,
then the Depositary, in its discretion (with the approval of the Company, in any
case where the Depositary has determined that it is not feasible to make such
rights, preferences or privileges available), may, if applicable laws or the
terms of such rights, preferences or privileges permit such transfer, sell such
rights, preferences or privileges at public or private sale, at such place or
places and upon such terms as it may deem proper. The net proceeds of any such
sale shall,
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subject to Sections 3.01 and 3.02, be distributed by the Depositary to the
record holders of Receipts entitled thereto as provided by Section 4.01 in the
case of a distribution received in cash. The Company shall not make any
distribution of any such rights, preferences or privileges unless the Company
shall have provided an opinion of counsel stating that such rights, preferences
or privileges have been registered under the Securities Act of 1933 or do not
need to be registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR
HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to
Preferred Stock, or whenever the Depositary shall receive notice of any meeting
at which holders of Preferred Stock are entitled to vote or of which holders of
Preferred Stock are entitled to notice, or whenever the Depositary and the
Company shall decide it is appropriate, the Depositary shall in each such
instance fix a record date (which shall be the same date as the record date
fixed by the Company with respect to the Preferred Stock) for the determination
of the holders of Receipts who shall be entitled to receive such dividend,
distribution, rights, preferences or privileges or the net proceeds of the sale
thereof, or to give instructions for the exercise of voting rights at any such
meeting, or who shall be entitled to notice of such meeting or for any other
appropriate reasons.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting at
which the holders of Preferred Stock are entitled to vote, the Depositary shall,
as soon as practicable thereafter, mail to the record holders of Receipts a
notice which shall contain (i) such information as is contained in such notice
of meeting, and (ii) a statement that the holders may, subject to any applicable
restrictions, instruct the Depositary as to the exercise of the voting
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rights pertaining to the amount of Preferred Stock represented by their
respective Depositary Shares (including an express indication that instructions
may be given to the Depositary to give a discretionary proxy to a person
designated by the Company) and a brief statement as to the manner in which such
instructions may be given. Upon the written request of the holders of Receipts
on the relevant record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum number of whole shares of Preferred
Stock represented by the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such Preferred Stock or cause such Preferred Stock
to be voted. In the absence of specific instructions from the holder of a
Receipt, the Depositary will abstain from voting (but, at its discretion, not
from appearing at any meeting with respect to such Preferred Stock unless
directed to the contrary by the holders of all the Receipts) to the extent of
the Preferred Stock represented by the Depositary Shares evidenced by such
Receipt.
SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND
RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Preferred
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion with the approval of, and shall upon the instructions of,
the Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments as are certified by the Company in (x) the
fraction of an interest represented by one Depositary Share in one share of
Preferred Stock, and (y) the ratio of the redemption price per Depositary Share
to the redemption price of a share of Preferred Stock, in each case as may be
necessary fully to reflect the effects of such changes in par or stated value,
split-up, combination or other reclassification of Preferred Stock, or of such
recapitalization, reorganization, merger, amalgamation or consolidation, and
(ii) treat any securities which shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Preferred Stock as new deposited
securities so received in exchange for or upon conversion or in respect of such
Preferred Stock. In any such case the Depositary may in its discretion, with the
approval of the Company, execute and deliver additional Receipts, or may call
for the surrender of all outstanding Receipts to be exchanged for new Receipts
specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after
the effective date of any such change in par or stated value, split-up,
combination or other reclassification of the Preferred Stock or any such
recapitalization, reorganization, merger, amalgamation or consolidation to
surrender such Receipts to the Depositary with instructions to convert, exchange
or surrender the Preferred Stock represented thereby only into or for, as the
case may be, the kind and amount of shares of stock and other securities and
property and cash into which the Preferred Stock represented by such Receipts
might have been converted or for which such Preferred Stock might have been
exchanged or surrendered immediately prior to the effective date of such
transaction.
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SECTION 4.07. INSPECTION OF REPORTS. The Depositary shall make available
for inspection by holders of Receipts at the Depositary's Office, and at such
other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Preferred Stock.
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request from time
to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names, addresses and holdings of Depositary Shares of all
persons in whose names Receipts are registered on the books of the Depositary.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE
DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the Depositary
shall maintain at the Depositary's Office facilities for the execution and
delivery, registration and registration of transfer, surrender and exchange of
Receipts, and at the offices of the Depositary's Agents, if any, facilities for
the delivery, registration of transfer, surrender and exchange of Receipts, all
in accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided, that any such holder requesting to exercise such right shall certify
to the Depositary that such inspection shall be for a proper purpose reasonably
related to such person's interest as an owner of Depositary Shares evidenced by
the Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
The Depositary may, with the approval of the Company, appoint a
Registrar for registration of the Receipts or the Depositary Shares evidenced
thereby. If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on the New
York Stock Exchange, the Depositary will appoint a Registrar (acceptable to the
Company) for registration of such Receipts or Depositary Shares in accordance
with any requirements of such Exchange. Such Registrar (which may be the
Depositary if so permitted by the requirements of such Exchange) may be removed
and a substituted registrar appointed by the Depositary upon the request or with
the approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Stock are listed on one or more other stock exchanges, the Depositary
will, at the request of the Company, arrange such facilities for the delivery,
registration, registration of transfer, surrender and exchange of such Receipts,
such Depositary Shares or such Preferred Stock as may be required by law or
applicable stock exchange regulation.
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SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY,
THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary
nor any Depositary's Agent nor any Registrar nor the Company shall incur any
liability to any holder of any Receipt if by reason of any provision of any
present or future law, or regulation thereunder, of the United States of America
or of any other governmental authority or, in the case of the Depositary, the
Depositary's Agent or the Registrar, by reason of any provision, present or
future, of the Company's Articles of Incorporation (including the Certificate)
or by reason of any act of God or war or other circumstance beyond the control
of the relevant party, the Depositary, the Depositary's Agent, the Registrar or
the Company shall be prevented or forbidden from, or subjected to any penalty on
account of, doing or performing any act or thing which the terms of this Deposit
Agreement provide shall be done or performed; nor shall the Depositary, any
Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed, or (ii) by reason
of any exercise of, or failure to exercise, any discretion provided for in this
Deposit Agreement except, in case of any such exercise or failure to exercise
discretion not caused as aforesaid, if caused by the negligence or willful
misconduct of the party charged with such exercise or failure to exercise.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY . Neither the Depositary nor any Depositary's
Agent nor any Registrar nor the Company assumes any obligation or shall be
subject to any liability under this Deposit Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Preferred Stock, the
Depositary Shares or the Receipts which in its opinion may involve it in expense
or liability unless indemnity satisfactory to it against all expense and
liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting Preferred Stock for deposit, any holder of a Receipt
or any other person believed by it in good faith to be competent to give such
information. The Depositary, any Depositary's Agent, any Registrar and the
Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
The Depositary shall not be responsible for any failure to carry out any
instruction to vote any of the shares of Preferred Stock or for the manner or
effect of any such vote made, as long as any such action or non-action is in
good faith. The Depositary undertakes, and any Registrar shall be required to
undertake, to perform such duties and only such duties as are specifically set
forth in this Deposit Agreement, and no implied covenants or obligations shall
be read into this Deposit Agreement against the Depositary or any Registrar. The
Depositary will indemnify the
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Company against any liability which may arise out of acts performed or omitted
by the Depositary or its agents due to its or their negligence or bad faith. The
Depositary, the Depositary's Agents and any Registrar may own and deal in any
class of securities of the Company and its affiliates and Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF
SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary
hereunder by notice of its election so to do delivered to the Company, such
resignation to take effect upon the appointment of a successor Depositary and
its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Deposit Agreement, and such predecessor, upon payment
of all sums due it and on the written request of the Company, shall execute and
deliver an instrument transferring to such successor all rights and powers of
such predecessor hereunder, shall duly assign, transfer and deliver all right,
title and interest in the Preferred Stock and any moneys or property held
hereunder to such successor, and shall deliver to such successor a list of the
record holders of all outstanding Receipts. Any successor Depositary shall
promptly mail notice of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees that it
will transmit to the record holders of Receipts, in each case at the addresses
furnished to it pursuant to Section 4.08, all notices and reports (including
without limitation financial statements) required
14
<PAGE> 18
by law, by the rules of any national securities exchange upon which the
Preferred Stock, the Depositary Shares or the Receipts are listed or by the
Company's Articles of Incorporation (including the Certificate) to be furnished
by the Company to holders of Preferred Stock. Such transmission will be at the
Company's expense.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) which may arise out of (i) acts
performed or omitted in connection with this Deposit Agreement and the Receipts
(a) by the Depositary, any Registrar or any of their respective agents
(including any Depositary's Agent), except for any liability arising out of
negligence, bad faith or willful misconduct on the respective parts of any such
person or persons, or (b) by the Company or any of its agents, or (ii) the
offer, sale or registration of the Receipts or the Preferred Stock pursuant to
the provisions hereof. The obligations of the Company set forth in this Section
5.06 shall survive any succession of any Depositary, Registrar or Depositary's
Agent.
SECTION 5.07. CHARGES AND EXPENSES. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
the depositary arrangements. The Company shall pay all agreed upon charges of
the Depositary in connection with the initial deposit of the Preferred Stock and
the initial issuance of the Depositary Shares, redemption of the Preferred Stock
at the option of the Company and all withdrawals of shares of the Preferred
Stock by owners of Depositary Shares. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its statement for charges and
expenses to the Company once each month or at such other intervals as the
Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or transfer agent,
which shall go into effect not sooner than three months after notice thereof to
the holders of the Receipts) which shall materially and adversely alter the
rights of the holders of Receipts shall be effective unless such amendment shall
have been approved by the holders of at least a majority of the Depositary
Shares then outstanding. Every holder of an outstanding Receipt at the time any
such amendment becomes effective shall be deemed, by continuing to hold such
Receipt, to consent and agree to such amendment and to be bound by this Deposit
Agreement as amended thereby.
15
<PAGE> 19
SECTION 6.02. TERMINATION. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been redeemed pursuant to Section 2.03, or (ii) there shall have been made
a final distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary's Agent and any Registrar under
Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed in
any number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to the Company at 17911 Von Karman Avenue, Suite
300, Irvine, California 92614, to the attention of the Senior Vice President and
General Counsel, or at any other address of which the Company shall have
notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at
[___________________________________], or at any other address of which the
Depositary shall have notified the Company in writing.
16
<PAGE> 20
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or by telegram or telex
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary, or if such holder
shall have filed with the Depositary a written request that notices intended for
such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to time
appoint Depositary's Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts
from time to time shall be parties to this Deposit Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.07. GOVERNING LAW. This Deposit Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of
_____________.
SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary's Agents and
shall be open to inspection during business hours at the Depositary's Office and
the respective offices of the Depositary's Agents, if any, by any holder of a
Receipt.
SECTION 7.09. HEADINGS. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or the Receipts or have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
[Remainder of page intentionally left blank]
17
<PAGE> 21
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
FIDELITY NATIONAL FINANCIAL, INC.
By _________________________________
Name:____________________________
Title:___________________________
Attested by
_____________________________________
Name:________________________________
[_________________________________]
as Depositary
By _________________________________
Name:____________________________
Title:___________________________
Attested by
_____________________________________
Name:________________________________
S-1
<PAGE> 22
EXHIBIT A
NUMBER DEPOSITARY SHARES
DR CERTIFICATE FOR NOT MORE THAN
_______ DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING
[CUMULATIVE] [CONVERTIBLE] PREFERRED STOCK, SERIES __, OF
FIDELITY NATIONAL FINANCIAL, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP
SEE REVERSE FOR CERTAIN DEFINITIONS
____________________________________, AS DEPOSITARY (THE "DEPOSITARY"), HEREBY
CERTIFIES THAT
Is the registered owner of ___________________________________ DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [one quarter (1/4)] of
one share of [Cumulative] [Convertible] Preferred Stock, Series ___, par value
[$.0001] per share, of Fidelity National Financial, Inc., a Delaware corporation
(the "Corporation"), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of ______________,
_____, (the "Deposit Agreement") between the Corporation and the Depositary. By
accepting this Depositary Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Depositary Receipt shall not be valid or obligatory for any purpose or
entitled to any benefits under the Deposit Agreement unless it shall have been
executed by the Depositary by the manual signature of a duly authorized officer
and shall have been countersigned manually by a Registrar or by the Depositary
as Registrar in respect of the Depositary Receipts by the manual signature of a
duly authorized officer thereof.
Dated: __________________________
COUNTERSIGNED AND
REGISTERED:
_________________________________
_________________________________
DEPOSITARY AND REGISTRAR
By:______________________________
Name:____________________________
Title:___________________________
Authorized Officer [SEAL]
A-1
<PAGE> 23
FIDELITY NATIONAL FINANCIAL, INC.
THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT
CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND
RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES AUTHORIZED TO BE ISSUED,
SO FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD OF DIRECTORS
TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES OR
SERIES.
A-2
<PAGE> 24
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
UNIF GIFT MIN ACT - ________ Custodian _________ under the Uniform Gifts to
(Cust) (Minor)
Minors Act_______
(State)
Additional abbreviations may also be used though not in the above list.
For value received, _______________ hereby sell(s), assign(s) and transfer(s)
unto ___________________________________
(Please insert social security or
other identifying number of Assignee)
________________________________________________________________________________
(Please print or typewrite Name and address
including postal zip code of Assignee)
__________ Depositary Shares represented by the within Receipt and all rights
thereunder, and do hereby irrevocably constitute and appoint _____________
Attorney to transfer said Depositary Shares on the books of the within-named
Depositary with full power of substitution in the premises.
Dated: _______________
________________________
NOTICE. The signature(s) to this assignment must correspond with the name(s) as
written upon the face of this instrument in every particular, without alteration
or enlargement or any change whatever.
A-3
<PAGE> 1
EXHIBIT 5.1
[STRADLING YOCCA CARLSON & RAUTH LETTERHEAD]
December 14, 1998
Fidelity National Financial, Inc.
17911 Von Karman Avenue, Suite 300
Irvine, California 92614
Re: Registration Statement on Form S-3 (File No. 333-65837)
-------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Fidelity National Financial, Inc., a
Delaware corporation ("Fidelity"), in connection with the preparation of the
Registration Statement on Form S-3 (File No. 333-65837) filed by Fidelity with
the Securities and Exchange Commission (the "Commission") on October 16, 1998
under the Securities Act of 1933, as amended (the "Securities Act"), and as
amended by Amendment No. 1 to such Registration Statement filed with the
Commission on December 14, 1998 (as amended, the "Registration Statement"). The
Registration Statement relates to the issuance and sale from time to time,
pursuant to Rule 415 of the General Rules and Regulations of the Commission
promulgated under the Securities Act, of the following securities of Fidelity
with an aggregate initial public offering price of up to $150,000,000: (i) debt
securities, in one or more series (the "Debt Securities"), which may be issued
under an Indenture (the "Indenture") entered into or proposed to be entered into
between Fidelity and a trustee (the "Trustee") that has been or will be
appointed prior to the issuance of Debt Securities; (ii) shares of Fidelity
preferred stock, par value $.0001 per share (the "Preferred Stock"), in one or
more series, which may also be issued in the form of depositary shares (the
"Depositary Shares") evidenced by depositary receipts (the "Receipts"); and
(iii) shares of Fidelity common stock, par value $.0001 per share (the "Common
Stock" and, collectively with the Debt Securities, the Preferred Stock, the
Depositary Shares and the Common Stock, the "Offered Securities").
This opinion is being furnished in accordance with the requirements of
Item 601(b)(5) of Regulation S-K promulgated under the Securities Act.
<PAGE> 2
Fidelity National Financial, Inc.
December 14, 1998
Page Two
In connection with the preparation of this opinion, we have examined
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate and other records and documents as we considered appropriate
including, without limitation:
(i) the Registration Statement;
(ii) the Indenture or form thereof filed as an exhibit to the
Registration Statement;
(iii) the form of deposit agreement (the "Deposit Agreement") filed as
an exhibit to the Registration Statement that may be entered into among
Fidelity, a depositary to be appointed by Fidelity (the "Depositary") and the
holders from time to time of Receipts issued thereunder in connection with any
offering of Depositary Shares, including the form of Receipt evidencing the
Depositary Shares included as Annex A to the Deposit Agreement;
(iv) a specimen certificate representing the Common Stock;
(v) the Restated Certificate of Incorporation of Fidelity, as presently
in effect;
(vi) the Amended Bylaws of Fidelity, as presently in effect; and
(vii) resolutions of the Board of Directors of Fidelity (the "Board
Resolutions") relating to the preparation and filing of the Registration
Statement.
In addition, we have examined such other documents and considered such
questions of law as we have deemed necessary or appropriate. As to questions of
fact material to our opinions, we have relied upon certificates of public
officials, certificates of officers or other representatives of Fidelity and
others, and such other certificates or representations as we considered
appropriate.
We have assumed the authenticity of all documents submitted to us as
originals, the conformity with originals of all documents submitted to us as
copies and the genuineness of all signatures. We have also assumed that, with
respect to all parties to agreements or instruments relevant hereto other than
Fidelity, such parties had or will have the requisite power and authority to
execute and deliver and perform such agreements or instruments, that such
agreements or instruments have been duly authorized by all requisite action,
corporate or other, and executed and delivered by such parties and that such
agreements or instruments are the valid, binding and enforceable obligations of
such parties. As to any facts material to the opinions expressed herein which
were not independently established or verified, we have relied upon oral or
written statements and representations of officers and other representatives of
Fidelity and others.
Based upon the foregoing, and subject to the assumptions, exceptions,
qualifications and limitations set forth herein, we are of the opinion that:
1. With respect to any series of Debt Securities (the "Offered Debt
Securities"), when (i) the Board of Directors of Fidelity has taken all
necessary corporate action to authorize the offer,
<PAGE> 3
Fidelity National Financial, Inc.
December 14, 1998
Page Three
sale and issuance of, and to fix and determine the terms of, the Offered Debt
Securities; (ii) the terms of the Offered Debt Securities and of their issuance
and sale have been duly established in conformity with the Indenture; (iii) the
Indenture has been duly executed and delivered; and (iv) the Offered Debt
Securities have been duly executed and authenticated in accordance with the
terms of the Indenture and duly delivered to the purchasers thereof upon payment
of the agreed-upon consideration therefor, the issuance and sale of the Offered
Debt Securities will have been duly authorized by all necessary corporate action
on the part of Fidelity, and the Offered Debt Securities will constitute valid
and binding obligations of Fidelity enforceable against Fidelity in accordance
with their terms, except as the enforceability thereof may be subject to or
limited by (1) bankruptcy, insolvency, reorganization, arrangement, moratorium
or similar laws relating to creditors' rights generally, and (2) general
equitable principles, regardless of whether the issue is enforceability is
considered in a proceeding in equity or at law.
2. With respect to the shares of any series of Preferred Stock (the
"Offered Preferred Stock"), when (i) the Board of Directors has taken all
necessary corporate action to authorize the offer, sale and issuance of, and to
fix and determine the terms of, the Offered Preferred Stock, including the
adoption of a Certificate of Designations for such Preferred Stock in the form
required by applicable law; (ii) such Certificate of Designations has been duly
filed with the Secretary of State of the State of Delaware; (iii) certificates
representing the shares of the Offered Preferred Stock have been manually signed
by an authorized officer of Fidelity or of the transfer agent and registrar for
the Preferred Stock and registered by Fidelity or such transfer agent and
registrar, and delivered to the purchasers thereof; and (iv) Fidelity receives
consideration per share of the Offered Preferred Stock (A) in such amount (not
less than the par value per share) as may be determined by the Board of
Directors in the form of cash, services rendered, personal property, real
property, leases of real property, or a combination thereof or (B) in an amount
not less than the amount of consideration determined to be capital, in any of
the above-stated forms, and a binding obligation of the purchaser to pay the
balance of such purchase price, the issuance and sale of the shares of Offered
Preferred Stock will have been duly authorized by all necessary corporate action
on the part of Fidelity, and such shares will be validly issued, fully paid and
nonassessable.
3. With respect to Depositary Shares representing fractional interests
in any series of Preferred Stock, when (i) the Board of Directors has taken all
necessary corporate action to authorize the offer, sale and issuance of, and to
fix and determine the terms of, the Depositary Shares and the related series of
Preferred Stock, including the adoption of a Certificate of Designations for
such related series of Preferred Stock in the form required by applicable law;
(ii) such Certificate of Designations has been duly filed with the Secretary of
State of the State of Delaware; (iii) the terms of the Depositary Shares and of
their issuance and sale have been duly established in conformity with the
Deposit Agreement; (iv) the Deposit Agreement has been duly executed and
delivered; (v) the related series of Preferred Stock has been duly authorized
and validly issued in accordance with the laws of the State of Delaware and
delivered to the Depositary for deposit in accordance with the Deposit
Agreement; and (vi) the Receipts evidencing the Depositary Shares have been duly
issued against deposit of the related series of Preferred Stock with the
Depositary in accordance with
<PAGE> 4
Fidelity National Financial, Inc.
December 14, 1998
Page Four
the Deposit Agreement, the issuance and sale of the Depositary Shares will be
validly issued and the Receipts will entitle the holders thereof to the rights
specified therein and in the Deposit Agreement.
4. With respect to the shares of Common Stock (the "Offered Common
Stock"), when (i) the Board of Directors has taken all necessary corporate
action to authorize the offer, sale and issuance of the Offered Common Stock;
(ii) certificates representing the shares of the Offered Common Stock in the
form of the specimen certificates examined by us have been manually signed by an
authorized officer of the transfer agent and registrar for the Common Stock and
registered by such transfer agent and registrar, and delivered to the purchasers
thereof; and (iii) Fidelity receives consideration per share of the Offered
Common Stock (A) in such an amount (not less than the par value per share) as
may be determined by the Board of Directors in the form of cash, services
rendered, personal property, real property, leases of real property, or a
combination thereof or (B) in an amount not less than the amount of
consideration determined to be capital, in any of the above-stated forms, and a
binding obligation of the purchaser to pay the balance of such purchase price,
the issuance and sale of the shares of Offered Common Stock (including any
Offered Common Stock duly issued upon exchange or conversion of any Debt
Securities or shares of Preferred Stock that are exchangeable or convertible
into Common Stock) will have been duly authorized by all necessary corporate
action on the part of Fidelity, and such shares will be validly issued, fully
paid and nonassessable.
The foregoing opinions are subject to the following:
A. Notwithstanding the foregoing, the opinions expressed above with
respect to the Offered Debt Securities shall be deemed not to address the
application of the Commodity Exchange Act, as amended, or the rules, regulations
or interpretations of the Commodity Futures Trading Commission to Offered Debt
Securities the payment or interest on which will be determined by reference to
one or more currency exchange rates, commodity prices, equity indices or other
factors.
B. With respect to any Indenture, Deposit Agreement or other agreement
or instrument evidencing or relating to any Offered Securities, we have not
examined the question of what law would govern the interpretation or enforcement
thereof, and our opinions are based on the assumption that the internal laws of
the State of California would govern such agreement or instrument and the
transactions contemplated thereby. We express no opinion regarding the choice of
law provisions of any such agreement or instrument.
We are members of the Bar of the State of California and, accordingly,
do not purport to be experts on, or to be qualified to express any opinion
herein concerning, nor do we express any opinion concerning, any law other than
the laws of the State of California and the General Corporation Law of the State
of Delaware.
<PAGE> 5
Fidelity National Financial, Inc.
December 14, 1998
Page Five
We hereby consent to the filing of this opinion with the Commission as
an exhibit to the Registration Statement. We also consent to the reference to
our firm under the caption "Legal Opinions" in the Registration Statement.
Very truly yours,
/s/ STRADLING YOCCA CARLSON & RAUTH
<PAGE> 1
EXHIBIT 12.1
FIDELITY NATIONAL FINANCIAL, INC.
Calculation of Ratios of Earnings to Fixed Charges
<TABLE>
<CAPTION>
Nine months ended
Year ended December 31, September 30,
----------------------------------------------- ------------------
1993 1994 1995 1996 1997 1997 1998
------- ------- ------- ------- ------- ------- --------
(Dollars in thousands)
<S> <C> <C> <C> <C> <C> <C> <C>
Earnings:
Pretax income from continuing operations $68,771 $17,965 $11,482 $48,226 $85,603 $53,917 $132,460
Fixed charges 2,727 9,078 10,137 11,590 12,269 9,190 9,414
------- ------- ------- ------- ------- ------- --------
$71,498 $27,043 $21,619 $59,816 $97,872 $63,107 $141,874
======= ======= ======= ======= ======= ======= ========
Fixed charges:
Interest expense $ 2,727 $ 4,377 $ 5,221 $ 6,295 $ 6,330 $ 4,448 $ 6,077
Amortization of original issue discount
and debt issuance costs -- 4,701 4,916 5,295 5,939 4,742 3,337
------- ------- ------- ------- ------- ------- --------
$ 2,727 $ 9,078 $10,137 $11,590 $12,269 $ 9,190 $ 9,414
======= ======= ======= ======= ======= ======= ========
Ratio of Earnings to Fixed charges 26.2 3.0 2.1 5.2 8.0 6.9 15.1
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Fidelity National Financial, Inc.:
We consent to the inclusion of our report dated June 19, 1998, with respect to
the consolidated Financial Statements of Fidelity National Financial, Inc. and
subsidiaries as of December 31, 1997 and 1996, and the related consolidated
statements of earnings, stockholders' equity and cash flows for each of the
years in the three-year period ended December 31, 1997, which report appears in
the Form 8-K of Fidelity National Financial, Inc. dated June 24, 1998, and to
the reference of our firm under the heading "Experts" in the registration
statement.
/s/ KPMG PEAT MARWICK LLP
Los Angeles, California
December 14, 1998
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference, in the Registration Statement on
Form S-3, as amended, of our report dated August 20, 1997, on our audit of
the consolidated financial statements of Granite Financial, Inc. and
Subsidiaries and to the reference to our firm under the heading "Experts" in
the registration statement.
/s/ EHRHARDT KEEFE STEINER & HOTTMAN PC
---------------------------------------
Ehrhardt Keefe Steiner & Hottman PC
December 11, 1998
Denver, Colorado
