SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) June 6, 1996
SEACOR HOLDINGS, INC.
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(Exact name of registrant as specified in its charter)
Delaware 0-20904 13-3542736
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(State or other jurisdiction (Commission (I.R.S. employer
incorporation or organization) File Number) identification no.)
11200 Westheimer, Suite 850, Houston, Texas 77042
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (713) 782-5990
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5000 Railroad Avenue, Morgan City Louisiana 70380
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(Former name or former address, if changed since last report.)
Page 1 of 4 pages
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Item 5. Other Events
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On June 6, 1996, SEACOR Holdings, Inc. ("SEACOR"), provided notice
to First Trust National Association, as trustee (the "Trustee") for the holders
of its 6.00% Convertible Subordinated Notes due July 1, 2003 (the "6% Notes"),
under that certain Indenture dated as of June 15, 1993 (the "Indenture"),
between SEACOR and the Trustee, that SEACOR elected, pursuant to terms of the
Indenture and the 6% Notes, to redeem all outstanding 6% Notes on July 12, 1996
(the "Redemption Date") at a redemption price equal to 104.2% of the principal
amount thereof, together with all accrued and unpaid interest thereon to (but
not including) the Redemption Date.
The 6% Notes are convertible into shares of SEACOR's common stock at
a conversion price of $25.625 per share. If the entire $55,250,000 principal
amount outstanding of the 6% Notes were converted, 2,156,076 shares of SEACOR's
common stock would be issued. After taking into account the approximately 1.3
million shares to be issued by SEACOR in connection with its recently reported
acquisition of McCall Enterprises, Inc. and affiliated companies, the converted
shares would represent approximately 18.0% of SEACOR's outstanding common stock.
The closing price of the Company's common stock on June 6, 1996 was $47.75.
The press release of SEACOR announcing the Redemption, the form of
notice of redemption being sent to the holders of 6% Notes and the Indenture are
set forth as Exhibits hereto and incorporated herein by reference.
Item 7. Financial Statements and Exhibits
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(c) Exhibits.
4.0 Indenture dated June 15, 1993 between First Trust National
Association, as trustee, and SEACOR Holdings, Inc. relating to the
issuance of the 6.00% Convertible Subordinated Notes due July 1,
2003.
20.0 Press Release of SEACOR Holdings, Inc. dated June 6,
1996.
20.1 Notice of Election of SEACOR Holdings, Inc. dated June 6, 1996 to
redeem all 6.00% Convertible Subordinated Notes due July 1, 2003.
Page 2 of 4 pages
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SEACOR HOLDINGS, INC.
(Registrant)
DATE: JUNE 10, 1996 By: /s/ Milton Rose
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Milton Rose, Vice President
Page 3 of 4 pages
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EXHIBIT INDEX
Exhibit No. Description Page No.
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4.0 Indenture dated June 15, 1993
between First Trust National
Association, as trustee, and
SEACOR Holdings, Inc. relating to
the issuance of the 6.00%
Convertible Subordinated Notes due
July 1, 2003.
20.0 Press Release of SEACOR
Holdings, Inc. dated June 6, 1996.
20.1 Notice of Election of SEACOR
Holdings, Inc. dated June 6, 1996
to redeem all 6.00% Convertible
Subordinated Notes due July 1,
2003.
Page 4 of 4 pages
NYFS11...:\93\73293\0004\91\FRM6106M.000
EXHIBIT 4
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SEACOR Holdings, Inc.
TO
First Trust National Association
Trustee
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----------------
Indenture
Dated as of June 15, 1993
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$57,500,000
6.00% Convertible Subordinated Notes due July 1, 2003
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TABLE OF CONTENTS
Page
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Parties........................................................... 1
Recitals of the Company........................................... 1
ARTICLE ONE
Definitions and Other Provisions of
General Application
SECTION 101. Definitions:
Act............................................. 2
Affiliate; control.............................. 2
Agent Members................................... 2
Applicable Procedures........................... 2
Authenticating Agent............................ 3
Board of Directors.............................. 3
Board Resolution................................ 3
Business Day.................................... 3
CEDEL........................................... 3
Closing Price................................... 3
Commencement Date............................... 3
Commission...................................... 3
Common Stock.................................... 4
Company......................................... 4
Company Request; Company Order.................. 4
Corporate Trust Office.......................... 4
corporation..................................... 4
Defaulted Interest.............................. 4
Depositary...................................... 4
Dollar.......................................... 5
Domestic Share Certificate...................... 5
Euroclear....................................... 5
Event of Default................................ 5
Excess Shares................................... 5
Exchange Act.................................... 5
Expiration Date................................. 5
Expiration Time................................. 5
Foreign Share Certificate....................... 5
Foreigner....................................... 5
Global Security................................. 6
Holder.......................................... 6
Indenture....................................... 6
Initial Purchasers.............................. 6
Interest Payment Date........................... 6
Maturity........................................ 6
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Page
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Notice of Default............................... 6
Officers' Certificate........................... 6
Opinion of Counsel.............................. 7
Outstanding..................................... 7
Paying Agent.................................... 8
Permitted Percentage............................ 8
Person.......................................... 8
Predecessor Security............................ 8
Purchased Shares................................ 8
Redemption Date................................. 8
Redemption Price................................ 8
Reference Date.................................. 8
Regular Record Date............................. 8
Regulation S.................................... 8
Regulation S Global Security.................... 9
Responsible Officer............................. 9
Restricted Global Security...................... 9
Restricted Period............................... 9
Rule 144A....................................... 9
Rule 144A Information........................... 9
Securities Act.................................. 9
Security Register;
Security Registrar............................ 9
Senior Indebtedness............................. 9
Significant Subsidiary.......................... 10
Special Record Date............................. 10
Stated Maturity................................. 10
Subsidiary...................................... 10
Surrendered Securities.......................... 10
Trading Day .................................... 10
Trustee......................................... 10
Trust Indenture Act............................. 10
U.S. Depositary................................. 11
United States................................... 11
Unrestricted Global Security.................... 11
Vice President.................................. 11
SECTION 102. Compliance Certificates and
Opinions...................................... 11
SECTION 103. Form of Documents
Delivered to Trustee.......................... 12
SECTION 104. Acts of Holders; Record Dates................... 12
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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SECTION 105. Notices, Etc., to Trustee and
Company....................................... 15
SECTION 106. Notice to Holders; Waiver....................... 16
SECTION 107. Conflict with Trust Indenture Act............... 16
SECTION 108. Effect of Headings and
Table of Contents............................. 17
SECTION 109. Successors and Assigns.......................... 17
SECTION 110. Separability Clause............................. 17
SECTION 111. Benefits of Indenture........................... 17
SECTION 112. Governing Law................................... 17
SECTION 113. Legal Holidays.................................. 17
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally................................. 18
SECTION 202. Form of Face of Security........................ 20
SECTION 203. Form of Reverse of Security..................... 23
SECTION 204. Form of Trustee's
Certificate of Authentication................. 29
SECTION 205. Form of Conversion Notice....................... 30
SECTION 206. Form of Certification........................... 33
SECTION 207. Form of Transfer Certificate.................... 34
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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ARTICLE THREE
The Securities
SECTION 301. Title and Terms................................. 40
SECTION 302. Denominations................................... 41
SECTION 303. Execution, Authentication,
Delivery and Dating........................... 41
SECTION 304. Temporary Securities............................ 42
SECTION 305. Registration, Registration of
Transfer and Exchange......................... 43
SECTION 306. Mutilated, Destroyed,
Lost and Stolen Securities.................... 50
SECTION 307. Payment of Interest;
Interest Rights Preserved..................... 51
SECTION 308. Persons Deemed Owners........................... 53
SECTION 309. Cancellation.................................... 53
SECTION 310. Computation of Interest......................... 53
ARTICLE FOUR
Satisfaction and Discharge
SECTION 401. Satisfaction and
Discharge of Indenture........................ 53
SECTION 402. Application of Trust Money...................... 55
ARTICLE FIVE
Remedies
SECTION 501. Events of Default............................... 55
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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SECTION 502. Acceleration of Maturity;
Rescission and Annulment...................... 58
SECTION 503. Collection of Indebtedness and
Suits for Enforcement by
Trustee....................................... 59
SECTION 504. Trustee May File Proofs of Claim................ 60
SECTION 505. Trustee May Enforce Claims
Without Possession of
Securities.................................... 61
SECTION 506. Application of Money Collected.................. 61
SECTION 507. Limitation on Suits............................. 62
SECTION 508. Unconditional Right of Holders to
Receive Principal, Premium
and Interest and to Convert................... 62
SECTION 509. Restoration of Rights and Remedies.............. 63
SECTION 510. Rights and Remedies Cumulative.................. 63
SECTION 511. Delay or Omission Not Waiver.................... 63
SECTION 512. Control by Holders.............................. 64
SECTION 513. Waiver of Past Defaults......................... 64
SECTION 514. Undertaking for Costs........................... 64
SECTION 515. Waiver of Usury, Stay or Extension
Laws.......................................... 65
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and
Responsibilities.............................. 65
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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SECTION 602. Notice of Defaults.............................. 66
SECTION 603. Certain Rights of Trustee....................... 67
SECTION 604. Not Responsible for Recitals
or Issuance of Securities..................... 68
SECTION 605. May Hold Securities............................. 68
SECTION 606. Money Held in Trust............................. 68
SECTION 607. Compensation and Reimbursement.................. 69
SECTION 608. Disqualification; Conflicting
Interests..................................... 69
SECTION 609. Corporate Trustee Required;
Eligibility................................... 69
SECTION 610. Resignation and Removal;
Appointment of Successor...................... 70
SECTION 611. Acceptance of Appointment by
Successor..................................... 71
SECTION 612. Merger, Conversion, Consolidation
or Succession to Business..................... 72
SECTION 613 Preferential Collection of Claims
Against Company............................... 72
SECTION 614. Appointment of Authenticating
Agent......................................... 73
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
SECTION 701. Company to Furnish Trustee Names
and Addresses of Holders...................... 75
SECTION 702. Preservation of Information;
Communications to Holders..................... 75
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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SECTION 703. Reports by Trustee.............................. 76
SECTION 704. Reports by Company.............................. 76
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 801. Company May Consolidate, Etc.,
Only on Certain Terms......................... 76
SECTION 802. Successor Substituted........................... 77
ARTICLE NINE
Supplemental Indentures
SECTION 901. Supplemental Indentures Without
Consent of Holders............................ 78
SECTION 902. Supplemental Indentures with
Consent of Holders............................ 79
SECTION 903. Execution of Supplemental Indentures............ 80
SECTION 904. Effect of Supplemental Indentures............... 80
SECTION 905. Conformity with Trust Indenture Act............. 80
SECTION 906. Reference in Securities to
Supplemental Indentures....................... 81
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium
and Interest.................................. 81
SECTION 1002. Maintenance of Office or Agency................. 81
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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Page
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SECTION 1003. Money for Security Payments to
Be Held in Trust.............................. 82
SECTION 1004. Statement by Officers as to
Default....................................... 83
SECTION 1005. Existence....................................... 84
SECTION 1006. Maintenance of Properties....................... 84
SECTION 1007. Payment of Taxes and Other Claims............... 84
SECTION 1008. Waiver of Certain Covenants..................... 85
SECTION 1009. Delivery of Certain Information................. 85
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption............................. 85
SECTION 1102. Applicability of Article........................ 86
SECTION 1103. Election to Redeem; Notice
to Trustee.................................... 86
SECTION 1104. Selection by Trustee of
Securities to Be Redeemed..................... 86
SECTION 1105. Notice of Redemption............................ 87
SECTION 1106. Deposit of Redemption Price..................... 88
SECTION 1107. Securities Payable on
Redemption Date............................... 88
SECTION 1108. Securities Redeemed in Part..................... 89
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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<PAGE>
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ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to Senior
Indebtedness.................................. 89
SECTION 1202. Payment Over of Proceeds Upon
Dissolution, Etc. ............................ 89
SECTION 1203. No Payment When Senior
Indebtedness in Default....................... 91
SECTION 1204. Payment Permitted If No Default................. 91
SECTION 1205. Subrogation to Rights of Holders
of Senior Indebtedness........................ 92
SECTION 1206. Provisions Solely to Define
Relative Rights............................... 92
SECTION 1207. Trustee to Effectuate Subordination............. 93
SECTION 1208. No Waiver of Subordination
Provisions.................................... 93
SECTION 1209. Notice to Trustee............................... 94
SECTION 1210. Reliance on Judicial Order or
Certificate of Liquidating Agent.............. 95
SECTION 1211. Trustee Not Fiduciary for Holders
of Senior Indebtedness........................ 95
SECTION 1212. Rights of Trustee as Holder of
Senior Indebtedness;
Preservation of Trustee's
Rights........................................ 96
SECTION 1213. Article Applicable to Paying
Agents........................................ 96
SECTION 1214. Certain Conversions Deemed
Payment....................................... 96
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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<PAGE>
Page
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ARTICLE THIRTEEN
Conversion of Securities
SECTION 1301. Conversion Privilege and
Conversion Price.............................. 97
SECTION 1302. Exercise of Conversion Privilege................ 98
SECTION 1303. Fractions of Shares............................. 100
SECTION 1304. Adjustment of Conversion Price.................. 100
SECTION 1305. Notice of Adjustments of
Conversion Price.............................. 107
SECTION 1306. Notice of Certain Corporate
Action........................................ 107
SECTION 1307. Company to Reserve Common Stock................. 108
SECTION 1308. Taxes on Conversions............................ 108
SECTION 1309. Covenant as to Common Stock..................... 109
SECTION 1310. Cancellation of Converted
Securities.................................... 109
SECTION 1311. Provisions in Case of Reclassification,
Consolidation, Merger or
Sale of Assets................................ 109
ARTICLE FOURTEEN
Right to Require Repurchase
SECTION 1401. Right to Require Repurchase..................... 110
SECTION 1402. Notice; Method of Exercising
Repurchase Right.............................. 111
SECTION 1403. Deposit of Repurchase Price..................... 112
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Note: This table of contents shall not, for any purpose,
be deemed to be a part of the Indenture.
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<PAGE>
Page
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SECTION 1404. Securities Not Repurchased on
Repurchase Date............................... 112
SECTION 1405. Securities Repurchased in Part.................. 112
SECTION 1406. Certain Definitions............................. 113
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
SECTION 1501. Company's Option to Effect Defeasance
or Covenant Defeasance........................ 114
SECTION 1502. Defeasance or Discharge......................... 114
SECTION 1503. Covenant Defeasance............................. 115
SECTION 1504. Conditions to Defeasance or
Covenant Defeasance........................... 115
SECTION 1505. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions................ 118
SECTION 1506. Reinstatement................................... 119
ARTICLE SIXTEEN
Immunity
SECTION 1601. Personal Immunity of
Incorporators, Stockholders,
Directors and Officers........................ 119
TESTIMONIUM ................................................ 120
SIGNATURES AND SEALS.............................................. 120
ACKNOWLEDGMENTS................................................... 121
<PAGE>
INDENTURE, dated as of June 15, 1993, between SEACOR Holdings, Inc.,
a corporation duly organized and existing under the laws of the State of
Delaware (herein called the "Company"), having its principal office at 5000
Railroad Avenue, Morgan City, Louisiana 70380, and First Trust National
Association, a National Association duly organized and existing under the laws
of the United States, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its
6.00% Convertible Subordinated Notes due July 1, 2003 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
SECTION 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;
<PAGE>
(2) all other terms used herein which are defined in the Trust Indenture
Act, either directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles,
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted at the
date of such computation;
(4) unless the context otherwise requires, any reference to an "Article"
or a "Section" refers to an Article or Section, as the case may be, of this
Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
Certain terms used in Article Fourteen have the meanings specified
therein.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person who
directly, or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such specified Person. For the
purposes of this definition, "control" when used with respect to any specified
Person means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent Members" has the meaning specified in
Section 305.
"Applicable Procedures" has the meaning specified
in Section 305.
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<PAGE>
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a 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.
"Business Day" means a day on which banking institutions are open
for business and carrying out transactions in Dollars at the relevant place of
payment.
"CEDEL" has the meaning specified in Section 201.
"Closing Price" on any Trading Day with respect to the per share
price of Common Stock means the last reported sales price regular way or, in
case no such reported sale takes place on such Trading Day, the average of the
reported closing bid and asked prices regular way, in either case on the New
York Stock Exchange 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
Association of Securities Dealers Automated Quotations National Market System
or, if the Common Stock is not listed or admitted to trading on any national
securities exchange or quoted on such National Market System, the average of the
closing bid and asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm that is selected from time to time by the
Company for that purpose and is reasonably acceptable to the Trustee.
"Commencement Date" has the meaning specified in
Section 1304.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
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<PAGE>
"Common Stock" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which is not subject to redemption by the Company. However, subject
to the provisions of Section 1311, shares issuable on conversion of Securities
shall include only shares of the class designated as Common Stock of the Company
at the date of this instrument or shares of any class or classes resulting from
any reclassification or reclassifications thereof and which have no preference
in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"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" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee
in 180 East 5th Street, St. Paul, Minnesota 55101 at which at any particular
time its corporate trust business shall be administered.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities issued in whole
or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 305.
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<PAGE>
"Dollar" means a Dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Domestic Share Certificate" means a certificate evidencing
ownership of shares of Common Stock, which certificate can only be held by
non-Foreigners.
"Euroclear" has the meaning specified in Section 201.
"Event of Default" has the meaning specified in Section 501.
"Excess Shares" has the meaning specified in Section 203.
"Exchange Act" means the Securities Exchange Act of 1934 as it may
be amended from time to time, and any successor act thereto, and the rules and
regulations of the Commission promulgated thereunder.
"Expiration Date" has the meaning specified in Section 104.
"Expiration Time" has the meaning specified in Section 1304.
"Foreign Share Certificate" means a certificate evidencing ownership
of shares of Common Stock, which certificate can be held by a Foreigner or a
non-Foreigner.
"Foreigner" means (i) any person (including an individual, a
partnership, a corporation or an association) who is not a United States citizen
(within the meaning of applicable maritime laws); (ii) any foreign government or
the representative thereof; (iii) any corporation of which its president or
other chief executive officer or chairman of its board of directors or person
authorized to act in the absence or disability of any of them is a Foreigner, or
of which more than a minority of the number of its directors necessary to
constitute a quorum are Foreigners; (iv) any corporation, partnership or
association which is not organized under the laws of the United States or a
state, territory, district or possession thereof; (v) any corporation of which a
twenty five percent (25%) or greater interest is owned beneficially or of record
by, or may be voted by, Foreigners, or which by any other means whatsoever is
controlled by or in which control is permitted to be exercised by Foreigners;
(vi) any partnership of which one
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<PAGE>
or more of the general partners is a Foreigner, or any partnership or
association of which a twenty five percent (25%) or greater interest is owned
beneficially or of record by Foreigners or which by any other means is
controlled by Foreigners; or (vii) any person who acts as a representative or
fiduciary for a Person described in clauses (i) through (vi) above.
"Global Security" means any of the Restricted Global Security, the
Regulation S Global Security and the Unrestricted Global Security, as such terms
are defined in Section 201.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Initial Purchasers" means Goldman, Sachs & Co. and PaineWebber
Incorporated.
"Interest Payment Date" means the Stated Maturity
of an instalment of interest on the Securities.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an instalment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption, exercise of the repurchase
right or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 501(3) or 501(4).
"Officers' Certificate" means a certificate signed by any of the
Chairman of the Board, a Vice Chairman of the Board, the President or a Vice
President, and by any of the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee. One of the
officers signing an Officers' Certificate given pursuant to Section 1004 shall
be the principal executive, financial or accounting officer of the Company.
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<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Outstanding", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption shall have been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee shall have been made;
(iii) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company; and
(iv) Securities which have been defeased pursuant to
Section 1502.
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent, waiver or other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged
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in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Permitted Percentage" has the meaning specified in Section 203.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Purchased Shares" has the meaning specified in Section 1304.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed as set forth in the
Securities.
"Reference Date" has the meaning specified in Section 1304.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the June 15 or December 15 (whether or not a Business Day),
as the case may be, next preceding such Interest Payment Date.
"Regulation S" has the meaning specified in Section 201.
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"Regulation S Global Security" has the meaning specified in Section
201.
"Responsible Officer", when used with respect to the Trustee, means
any officer of the Trustee assigned by the Trustee to administer its corporate
trust matters.
"Restricted Global Security" has the meaning specified in Section
201.
"Restricted Period" has the meaning specified in Section 201.
"Rule 144A" has the meaning specified in Section 201.
"Rule 144A Information" has the meaning specified in Section 1009.
"Securities Act" means the Securities Act of 1933 as it may be
amended from time to time, and any successor act thereto, and the rules and
regulations of the Commission promulgated thereunder.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of and premium, if any,
and interest on all indebtedness of the Company for money borrowed, other than
the Securities, whether outstanding on the date of execution of the Indenture or
thereafter created, incurred, guaranteed or assumed, except such indebtedness
that by the terms of the instrument or instruments by which such indebtedness
was created or incurred expressly provides that it (i) is junior in right of
payment to the Securities or any other indebtedness of the Company for borrowed
money or (ii) ranks pari passu in right of payment to the Securities. The term
"indebtedness for money borrowed" when used with respect to the Company is
defined to mean (i) any obligation of, or any obligation guaranteed by, the
Company for the repayment of borrowed money, whether or not evidenced by bonds,
debentures, notes or other written instruments, (ii) all obligations of the
Company with respect to interest rate hedging agreements to hedge interest rates
relating to Senior Indebtedness of the Company, (iii) any deferred payment
obligation of, or any such obligation guaranteed by, the Company for the payment
of the purchase price of property or assets evidenced by a note or similar
instrument, and (iv) any obligation of, or any such obligation guaranteed by,
the Company for the payment of
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rent or other amounts under a lease of property or assets which obligation is
required to be classified and accounted for as a capitalized lease on the
balance sheet of the Company under generally accepted accounting principles.
"Significant Subsidiary" means any Subsidiary which would be a
"Significant Subsidiary" as defined in Rule 1-02 of Regulation S-X under the
Securities Act and the Exchange Act (as such regulation may from time to time be
amended).
"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 Security or any
instalment of principal thereof or interest thereon, means the date specified in
such Security as the fixed date on which the principal of such Security or such
instalment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Surrendered Securities" has the meaning specified in Section 206.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are not traded on the applicable
securities exchange or in the applicable securities market.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed and the rules and
regulations thereunder; provided, however, that in the event the Trust Indenture
Act of 1939 or such rules and regulations are amended after such date, "Trust
Indenture Act" means, to the extent required by
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any such amendment, the Trust Indenture Act of 1939 and such rules and
regulations as so amended.
"U.S. Depositary" has the meaning specified in Section 201.
"United States" means the United States of America (including the
States thereof and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction.
"Unrestricted Global Security" has the meaning specified in Section
201.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
SECTION 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 an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (except for the
certificates provided for in Section 1004) shall include
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion
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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 certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
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substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent 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 fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given or taken by Holders
of Securities, 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
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referred to in the next paragraph. If any record date is set pursuant to this
paragraph, the Holders of Outstanding Securities on such record date, and no
other Holders, shall be entitled to take the relevant action, 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
Securities on such record date; and provided, further, that for the purpose of
determining whether Holders of the requisite principal amount of such Securities
have taken such action, no Security shall be deemed to have been Outstanding on
such record date unless it is also Outstanding on the date such action is to
become effective. Nothing in this paragraph shall 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), nor shall anything in this paragraph be construed to render ineffective
any action taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken. Promptly after any record date is
set pursuant to this paragraph, the Company, at its own expense, shall cause
notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Trustee in writing and to each Holder of
Securities in the manner set forth in Section 106.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 502, (iii) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section 512. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, 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 Securities on such
record date; and provided, further, that for the purpose of determining whether
Holders of the requisite principal amount of such Securities have taken such
action, no Security shall be deemed to have been Outstanding on such record date
unless it is also Outstanding on the date such action is to become effective.
Nothing in this paragraph shall be construed to prevent the Trustee from setting
a new record date for any
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action (whereupon the record date previously set shall automatically and without
any action by any Person be cancelled and of no effect), nor shall anything in
this paragraph be construed to render ineffective any action taken by Holders of
the requisite principal amount of Outstanding Securities on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the
Trustee, at the Company's expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Securities in the manner set forth in
Section 106.
With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 106, on or
before the existing Expiration Date. Notwithstanding the foregoing, no
Expiration Date shall be later than the 180th day after the applicable record
date and, if an Expiration Date is not designated with respect to any record
date set pursuant to this Section, the party hereto that set such record date
shall be deemed to have designated the 180th day after such record date as the
Expiration Date with respect thereto.
Without limiting the foregoing, a Holder entitled hereunder to take
any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent,
waiver or 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 sufficiently
given if made, given, furnished or filed in writing to or with the Trustee
at its Corporate Trust Office, Attention: Assistant Vice President,
Corporate Finance, or
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(2) the Company by the Trustee or by any Holder shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it 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.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act which is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter provision shall
be deemed to apply to this Indenture as so modified or to be excluded,
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as the case may be. To the extent a Security conflicts with
a provision in the Indenture, the Indenture governs.
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.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, the holders of Senior Indebtedness and the Holders of Securities, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security or the last date on which a
Holder has the right to convert his Securities shall not be a Business Day then
(notwithstanding any other provision of this Indenture or of
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the Securities) payment of interest or principal (and premium, if any) or
conversion of the Securities need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date, Redemption Date, Repurchase Date or at the Stated
Maturity, or on such last day for conversion, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date, Repurchase Date or Stated Maturity, as the case may be.
ARTICLE TWO
Security Forms
SECTION 201. Forms Generally.
The Securities and the Trustee's certificates of authentication
shall be in substantially the forms set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
may be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
In certain cases described elsewhere herein, the legends set forth
in the first three paragraphs of Section 202 may be omitted from Securities
issued hereunder.
Securities offered and sold in reliance on Regulation S ("Regulation
S") under the Securities Act shall be issued in the form of a single Global
Security in definitive, fully registered form without interest coupons,
substantially in the form of Security set forth in Sections 202 and 203, with
such applicable legends as are provided for in Section 202, except as otherwise
permitted herein. Such Global Security shall be registered in the name of a
nominee of The Depositary Trust Company (the "U.S. Depositary") and deposited
with the Trustee, at its New York office, as custodian for the U.S. Depositary,
duly executed
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by the Company and authenticated by the Trustee as hereinafter provided, for
credit to the respective accounts of beneficial owners of the Securities (or to
such other accounts as they may direct) at Morgan Guaranty Trust Company of New
York, Brussels office, as operator of the Euroclear System ("Euroclear"), or
Centrale de Livraison de Valeurs Mobilieres S.A. ("CEDEL"). Until such time as
the Restricted Period (as defined below) shall have terminated, such Global
Security shall be referred to herein as the "Regulation S Global Security".
After such time as the Restricted Period shall have terminated, such Global
Security shall be referred to herein as the "Unrestricted Global Security". The
aggregate principal amount of the Regulation S Global Security or the
Unrestricted Global Security may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the U.S.
Depositary, in connection with a corresponding decrease or increase in the
aggregate principal amount of the Restricted Global Security, as hereinafter
provided. As used herein, the term "Restricted Period" means the period of 40
consecutive days beginning on and including the later of (i) the day that the
Initial Purchasers advise the Company and the Trustee is the day on which the
Securities are first offered to persons other than distributors (as defined in
Regulation S) in reliance on Regulation S and (ii) the day on which the closing
for the offering of the Securities occurs.
Securities offered and sold in reliance on Rule 144A ("Rule 144A")
under the Securities Act shall be issued in the form of a single Global Security
(the "Restricted Global Security") in definitive, fully registered form without
interest coupons, substantially in the form of Security set forth in Sections
202 and 203, with such applicable legends as are provided for in Section 202,
except as otherwise permitted herein. Such Global Security shall be registered
in the name of a nominee of the U.S. Depositary and deposited with the Trustee,
at its New York office, as custodian for the U.S. Depositary, duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Restricted Global Security may from time to
time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the U.S. Depositary, in connection with a
corresponding decrease or increase in the aggregate principal amount of the
Regulation S Global Security or the Unrestricted Global Security, as hereinafter
provided.
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SECTION 202. Form of Face of Security.
[INCLUDE IF SECURITY IS A RESTRICTED GLOBAL SECURITY OR A REGULATION
S GLOBAL SECURITY--THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON
THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED,
HYPOTHECATED OR OTHERWISE TRANSFERRED, EXCEPT (A)(i) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (ii) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE
903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (iii) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER, (iv) TO INSTITUTIONAL ACCREDITED INVESTORS, AS DEFINED UNDER RULE
501 OF REGULATION D UNDER THE SECURITIES ACT, PURSUANT TO ANY OTHER AVAILABLE
EXEMPTION THEREUNDER, OR (v) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES.]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY
OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR
A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY
BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, 55 WATER STREET, NEW YORK, NEW YORK 10004, TO
THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CEDE & CO., AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL BECAUSE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
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IMPORTANT
THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF ARE
SUBJECT TO CERTAIN LIMITATIONS ON FOREIGN OWNERSHIP AND AS A CONDITION TO THE
RECEIPT OF COMMON STOCK UPON CONVERSION HOLDERS WILL BE REQUIRED TO FURNISH A
CERTIFICATION AS TO, AND UNDER CERTAIN CIRCUMSTANCES, ADDITIONAL PROOF OF, THEIR
CITIZENSHIP. IN ADDITION, A FOREIGN HOLDER MAY, BY REASON OF SUCH LIMITATIONS,
RECEIVE A LESSER NUMBER OF SHARES OF COMMON STOCK UPON CONVERSION THAN IT
OTHERWISE MAY BE ENTITLED TO RECEIVE PURSUANT TO THE TERMS OF THIS SECURITY AND
THE INDENTURE.
SEACOR Holdings, Inc.
6.00% Convertible Subordinated Notes due July 1, 2003
No. __________ $________
SEACOR Holdings, Inc., a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of _______ _______ ________ Dollars on July 1, 2003, and to pay
interest thereon from July 1, 1993 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semi-annually on January 1
and July 1 in each year, commencing January 1, 1994, at the rate of 6.00% per
annum, until the principal hereof is paid or made available for payment. The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the June 15 or December 15 (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed,
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and upon such notice as may be required by such exchange, all as more fully
provided in said Indenture.
Payment of the principal of, premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts by a check drawn on an account
maintained with a bank in The City of New York; provided, however, that upon
application by the Holder to the Security Registrar not later than the June 1 or
December 1 immediately preceding the relevant Interest Payment Date, such Holder
may receive payment by wire transfer to a U.S. Dollar account (such transfers to
be made only to Holders of an aggregate principal amount in excess of U.S.
$5,000,000) maintained by the payee with a bank in The City of New York or in
Europe.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
SEACOR HOLDINGS, INC.
By_______________________
Title:
Attest:
- ------------------------------
Title:
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<PAGE>
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 6.00% Convertible Subordinated Notes due July 1, 2003
(herein called the "Securities"), limited in aggregate principal amount to
$57,500,000, issued and to be issued under an Indenture, dated as of June 15,
1993 (herein called the "Indenture"), between the Company and First Trust
National Association, as Trustee for the Holders of Securities issued under said
Indenture (herein called the "Trustee", which term includes any successor
trustee under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and
delivered.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time on or before
the close of business on July 1, 2003, or in case this Security or a portion
hereof is called for redemption, then in respect of this Security or such
portion hereof until and including, but (unless the Company defaults in making
the payment due upon redemption) not after, the close of business on the
corresponding Redemption Date, to convert this Security (or any portion of the
principal amount hereof which is $1,000 or an integral multiple thereof), at the
principal amount hereof, or of such portion, into fully paid and non-assessable
shares of Common Stock of the Company (in the form of a Domestic Share
Certificate or a Foreign Share Certificate, as applicable) at a conversion price
equal to $25.625 aggregate principal amount of Securities for each share of
Common Stock (or at the current adjusted conversion price if an adjustment has
been made as provided in Article Thirteen of the Indenture) by surrender of this
Security, duly endorsed or assigned to the Company or in blank, to the Company
at its office or agency in the Borough of Manhattan, The City of New York
accompanied by written notice to the Company that the Holder hereof elects to
convert this Security, or if less than the entire principal amount hereof is to
be converted, the portion hereof to be converted, and, in case such surrender
shall be made during the period from the close of business on any Regular Record
Date next preceding the corresponding Interest Payment Date to the opening of
business on such Interest Payment Date (unless this Security or the portion
hereof being converted has been called for redemption on a Redemption Date
within such
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<PAGE>
period), also accompanied by payment in New York Clearing House or other funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement for payment of interest and, in
the case of a conversion after the Regular Record Date next preceding any
Interest Payment Date and on or before such Interest Payment Date, to the right
of the Holder of this Security (or any Predecessor Security) of record at such
Regular Record Date to receive an instalment of interest (even if the Security
has been called for redemption on a Redemption Date within such period), no
payment or adjustment is to be made on conversion for interest accrued hereon or
for dividends on the Common Stock issued on conversion. No fractions of shares
or scrip representing fractions of shares will be issued on conversion, but
instead of any fractional interest the Company shall pay a cash adjustment as
provided in Article Thirteen of the Indenture. The conversion price is subject
to adjustment as provided in Article Thirteen of the Indenture. In addition, the
Indenture provides that in case of certain reclassifications, consolidations,
mergers, sales or transfers of assets or other transactions pursuant to which
the Common Stock is converted into the right to receive other securities, cash
or other property, the Indenture shall be amended, without the consent of any
Holders of Securities, so that this Security, if then outstanding, will be
convertible thereafter, during the period this Security shall be convertible as
specified above, (i) in the event such transaction is a Change in Control, only
into the kind and amount of securities, cash and other property receivable upon
the transaction by a holder of the number of shares of Common Stock into which
this Security might have been converted immediately prior to such transaction
(assuming such holder of Common Stock failed to exercise any rights of election
and received per share the kind and amount received per share by a plurality of
non-electing shares), or (ii) in the event such transaction is not a Change in
Control, only into the kind of common stock receivable by a holder of Common
Stock, at an adjusted conversion price, in the case of clause (ii), determined
in the manner provided by the Indenture.
Because the Company's vessels operate in the United States coastwise
trade, the Shipping Act, 1916, as amended, requires that not more than twenty
five percent (25%) of the Company's capital stock be owned or controlled by
"Foreigners," as defined in the Indenture. The Holder of this Security is
entitled to receive, upon conversion, a Domestic Share Certificate only if the
shares of Common Stock represented by the Domestic Share Certificate are not
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to be held by or for the account of a Foreigner. Otherwise, the Holder of this
Security is entitled to receive, upon conversion, only a Foreign Share
Certificate.
If the holder of a Domestic Share Certificate is a Foreigner, or
holds shares for the account of a Foreigner, such certificate must be exchanged
immediately for a Foreign Share Certificate, subject to the limitations set
forth below. If the holder of a Foreign Share Certificate is a U.S. citizen, or
should shares of Common Stock which are represented by a Foreign Share
Certificate be sold or transferred to a U.S. citizen, such holder or transferee
may exchange his or its certificate for a Domestic Share Certificate.
The Company's Certificate of Incorporation contains provisions
limiting the aggregate percentage ownership by Foreigners of any class of the
Company's capital stock (including the Common Stock) to twenty two and one-half
percent (22.5%) of the outstanding shares of such class (the "Permitted
Percentage") to ensure that such Foreign ownership will not exceed the maximum
percentage permitted by applicable law, and authorizes the Board of Directors,
under certain circumstances, to increase the foregoing percentage to twenty four
percent (24%).
Any purported transfer to Foreigners of shares of Common Stock or of
an interest in shares of Common Stock of the Company represented by a Domestic
Share Certificate which increases the aggregate ownership by Foreigners above
the then Permitted Percentage (the "Excess Shares") will be ineffective as
against the Company for all purposes (including for purposes of voting and
dividends), and such transfer shall not be recognized or recorded on the books
of the Company, except that a subsequent transfer of such Excess Shares to a
U.S. citizen would be recognized by the Company as valid and recorded as such.
The Holder of this Security will not be entitled to convert this Security, or a
portion hereof, if such Holder is a Foreigner or holding for the account of a
Foreigner and the conversion will, in the good faith judgment of the Company,
increase the aggregate ownership by Foreigners above the then Permitted
Percentage.
If the Permitted Percentage is exceeded, the Company is authorized
pursuant to the Certificate of Incorporation to temporarily withhold dividends
and other distributions on the Excess Shares, pending the transfer of such
shares to a U.S. citizen or a reduction in the aggregate percentage of shares
owned by Foreigners to or below the Permitted Percentage, and to deny voting
rights with respect to the Excess Shares. In addition, the Company
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is authorized, in its discretion, to redeem (upon written notice) the Excess
Shares in order to reduce the aggregate Foreign ownership thereof to the
Permitted Percentage. The Foreign-owned shares to be redeemed would be selected
solely by reference to the date or dates on which such shares were acquired,
starting with the most recently acquired shares and including, in reverse
chronological order, all other acquisitions of shares by Foreigners from and
after the acquisition which first caused the Permitted Percentage to be
exceeded; provided that if more than one such acquisition by Foreigners is made
on a particular day which results in the Permitted Percentage being exceeded,
the selection of shares to be redeemed would be made on a pro rata basis in
proportion to the respective number of shares acquired by each such Foreign
acquiror on such date.
The Company will furnish to any Holder, upon request and without
charge, copies of the Certificate of Incorporation and By-laws of the Company
then in effect. Any such request may be addressed to the Company or to the
Security Registrar.
The Securities are subject to redemption upon not less than 30 days
or more than 60 days notice by mail, at any time on or after July 1, 1996, as a
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount): If redeemed during
the 12-month period beginning July 1 of the years indicated,
Redemption Redemption
Year Price Year Price
- ---- ----- ---- -----
1996 104.2 2000 101.8
1997 103.6 2001 101.2
1998 103.0 2002 100.6
1999 102.4
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to (but not
including) the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
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<PAGE>
In certain circumstances involving a Change in Control, each Holder
shall have the right to require the Company to redeem all or part of its
Securities at a repurchase price equal to 100% of the principal amount thereof,
together with accrued and unpaid interest to the Repurchase Date.
The Securities do not have the benefit of any sinking fund.
In the event of redemption, conversion or repurchase of this
Security in part only, a new Security or Securities for the unredeemed,
unconverted or unrepurchased portion hereof will be issued in the name of the
Holder hereof upon the cancellation hereof.
Subject to certain limitations in the Indenture, at any time when
the Company is not subject to Section 13 or 15(d) of the United States
Securities Exchange Act of 1934, as amended, upon the request of a Holder or the
holder of shares of Common Stock issued upon conversion thereof, the Company
will promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder or such holder of shares of Common Stock issued upon
conversion, or to a prospective purchaser of any such security designated by any
such Holder or holder of shares of Common Stock, as the case may be, to the
extent required to permit compliance by such Holder or holder of shares of
Common Stock with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), in connection with the resale of any such
security. "Rule 144A Information" shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto).
The indebtedness evidenced by this Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Security is issued
subject to the provisions of the Indenture with respect thereto. Each Holder of
this Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the principal
of all the Securities may be declared due and payable in the manner and with the
effect provided in Article Five of the Indenture.
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<PAGE>
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of a
majority in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
No provision of this Security or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Security at the
times, place and rate, and in the coin or currency, herein prescribed or to
convert this Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, The City of New
York duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons
in denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
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<PAGE>
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not payment of or on this Security is
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a
360-day year of twelve 30-day months.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
SECTION 204. Form of Trustee's Certificate of
Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
---------------------------,
as Trustee
By ___________________________
Authorized Officer
SECTION 205. Form of Conversion Notice.
CONVERSION NOTICE
To: SEACOR Holdings, Inc.
The undersigned registered owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion hereof (which is
$1,000 or an integral multiple thereof) below designated, into shares of
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<PAGE>
Common Stock (in the form of a Domestic Share Certificate or a Foreign Share
Certificate, as applicable) in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares issuable and
deliverable upon conversion, together with any check in payment for a fractional
share and any Security representing any unconverted principal amount hereof, be
issued and delivered to the registered owner hereof unless a different name has
been provided below. If shares or any portion of this Security not converted are
to be issued in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto and is delivering
herewith a certificate in proper form certifying that the applicable
restrictions on transfer have been complied with. Any amount required to be paid
by the undersigned on account of interest accompanies this Security.
The undersigned (the "Applicant") hereby makes application for the
issuance of record to the name of the Applicant of shares of Common Stock and
hereby certifies to the Company that:
The Applicant IS [_] IS NOT [_] a "Foreigner."*
The Applicant WILL [_] WILL NOT [_] hold or control the shares
applied for, or any of them, or any interest in any of them, for or on behalf of
a "Foreigner."
The Applicant hereby agrees that, promptly after request of the
Company, he or it will furnish such proof in support of this certification as
the Company or the Security Registrar for the Common Stock may, from time to
time, request.
DATE: __________________________________
----------------------------------
Signature(s) of Applicant
(If the Applicant is a corporation, partnership or
fiduciary, the title of the Person signing on
behalf of the Applicant must be stated.)
* DEFINITION OF "FOREIGNER"
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<PAGE>
A "Foreigner" is:
(1) Any person (including an individual, a partnership, a corporation or an
association) who is not a United States citizen (within the meaning of
applicable maritime laws);
(2) any foreign government or the representative thereof;
(3) any corporation of which its president or other chief
executive officer or chairman of its board of directors or person
authorized to act in the absence or disability of any of them is a
Foreigner, or of which more than a minority of the number of its directors
necessary to constitute a quorum for the transaction of business are
Foreigners;
(4) any corporation, partnership or association which is not organized under
the laws of the United States or a state, territory, district or
possession thereof;
(5) any corporation of which a twenty five percent (25%) or greater interest
is owned beneficially or of record by, or may be voted by, Foreigners, or
which by any other means whatsoever is controlled by or in which control
is permitted to be exercised by Foreigners;
(6) any partnership of which one or more of the general partners is a
Foreigner, or any partnership or association of which a twenty five
percent (25%) or greater interest is owned beneficially or of record by
Foreigners or which by any other means is controlled by Foreigners; or
(7) any person who acts as a representative or fiduciary for a Person
described in clauses (1) through (6) above.
NOTICE: This certification constitutes a basis for the
Company's representation to the United States
Government that it is a citizen within the meaning
of the Shipping Act, 1916, as amended. Any person
making a statement herein which he or it knows to
be false may be proceeded against under Title 18,
United States Code, Section 1001, which section
provides penalties of up to five years
imprisonment or a fine of up to $10,000.
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<PAGE>
Signature(s) must be guaranteed by a commercial bank or trust company or a
member firm of a national stock exchange or a member of the National Association
of Securities Dealers, Inc. if shares of Common Stock are to be delivered, or
unconverted Securities are to be issued, other than to and in the name of the
registered owner.
- ------------------------------
Signature Guarantee
Fill in for registration of shares if they are to be delivered, or unconverted
Securities if they are to be issued, other than to and in the name of the
registered owner:
- ------------------------------
(Name)
- ------------------------------
(Street Address)
- ------------------------------
(City, State and zip code)
(Please print name and address)
Register: __ Common Stock
__ Securities
(Check appropriate line(s))
Principal amount to be converted (if less than all):
$_____,000
- ----------------------------------
Social Security or other Taxpayer
Identification Number of owner
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<PAGE>
SECTION 206. Form of Certification.
TRANSFER CERTIFICATE
The undersigned registered owner of this Security hereby certifies
with respect to $________ principal amount of the above-captioned securities
presented or surrendered on the date hereof (the "Surrendered Securities") for
registration of transfer, or for exchange or conversion where the securities
issuable upon such exchange or conversion are to be registered in a name other
than that of the undersigned registered owner (each such transaction being a
"transfer"), that such transfer complies with the restrictive legend set forth
on the face of the Surrendered Securities for the reason checked below:
___________ The transfer of the Surrendered
Securities complies with Rule 144
under the U.S. Securities Act of
1933, as amended (the "Securities
Act"); or
___________ The transfer of the Surrendered
Securities complies with Rule 144A
under the Securities Act; or
___________ The transfer of the Surrendered
Securities complies with Rule 903
or 904 of Regulation S under the
Securities Act; or
___________ The transfer of the Surrendered
Securities is to an institutional
accredited investor, as defined
under Rule 501 of Regulation D
under the Securities Act; or
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<PAGE>
___________ The transfer of the Surrendered
Securities is pursuant to an
effective registration statement
under the Securities Act.
DATE: ___________________
___________________
Signature(s)
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
SECTION 207. Form of Transfer Certificate.
(a) Whenever any certification is to be given by a beneficial owner
of a portion of the Restricted Global Security pursuant to Section 305(b)(ii) in
connection with the transfer of a beneficial interest in the Regulation S Global
Security to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Regulation S Global Security, such certification
shall be provided substantially in the form of the following certificate, with
only such changes as shall be approved by the Company and the Initial
Purchasers.
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM RESTRICTED GLOBAL
SECURITY TO REGULATION S GLOBAL SECURITY
(TRANSFERS PURSUANT TO SECTION 305(B)(II)
OF THE INDENTURE)
First Trust National Association
as Trustee
Re: Seacor Holdings, Inc.
6.00% Convertible Subordinated Notes
Due July 1, 2003 (the "Securities")
Reference is hereby made to the Indenture, dated as of June 15, 1993
(the "Indenture"), between Seacor Holdings, Inc., as Issuer, and First Trust
National Association, as Trustee. Capitalized terms used but not
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defined herein shall have the meanings given to them in the
Indenture.
This letter relates to U.S. $______________ principal amount of
Securities which are evidenced by the Restricted Global Security (CUSIP No.
811904AA9) and held with the U.S. Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Securities to a Person who will take delivery thereof
in the form of an equal principal amount of Securities evidenced by the
Regulation S Global Security (CUSIP No. U81190AA5), which amount, immediately
after such transfer, is to be held with the U.S. Depositary through Euroclear or
CEDEL or both.
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with Rule 903 or Rule 904 under the United States
Securities Act of 1933, as amended (the "Securities Act"), and accordingly the
Transferor does hereby further certify that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either:
(A) at the time the buy order was originated, the transferee
was outside the United States or the Transferor and any person
acting on its behalf reasonably believed that the transferee was
outside the United States, or
(B) the transaction was executed in, on or through the
facilities of a designated offshore securities market and neither
the Transferor nor any person acting on its behalf knows that the
transaction was pre-arranged with a buyer in the United States;
(3) no directed selling efforts have been made in contravention of
the requirements of Rule 903(b) or 904(b) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) upon completion of the transaction, the beneficial interest
being transferred as described
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above was held with the U.S. Depositary through
Euroclear or CEDEL or both.
This certificate and the statements contained herein are made for
the benefit of the Company and the Initial Purchasers. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By:_________________________________
Name:
Title:
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
cc: Seacor Holdings, Inc.
(b) Whenever any certification is to be given by a beneficial owner
of a portion of the Restricted Global Security pursuant to Section 305(b)(iii)
in connection with the transfer of a beneficial interest in the Restricted
Global Security to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Security, such certification
shall be provided substantially in the form of the following certificate, with
only such changes as shall be approved by the Company and Initial Purchasers.
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FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED
GLOBAL SECURITY
(TRANSFERS PURSUANT TO SECTION 305(B)(III)
OF THE INDENTURE)
First Trust National Association
as Trustee
Re: Seacor Holdings, Inc.
6.00% Convertible Subordinated Notes
Due July 1, 2003 (the "Securities")
Reference is hereby made to the Indenture, dated as of June 15, 1993
(the "Indenture"), between Seacor Holdings, Inc., as Issuer, and First Trust
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the
Indenture.
This letter relates to U.S. $_________________ principal amount of
Securities which are evidenced by the Restricted Global Security (CUSIP No.
819904AA9) and held with the U.S. Depositary in the name of [insert name of
transferor] (the "Transferor"). The Transferor has requested a transfer of such
beneficial interest in the Securities to a Person that will take delivery
thereof in the form of an equal principal amount of Securities evidenced by the
Unrestricted Global Security (CUSIP No. U81190AA5).
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with Rule 903, Rule 904 or Rule 144 under the United States
Securities Act of 1933, as amended (the "Securities Act") and accordingly the
Transferor does hereby further certify that:
(1) if the transfer has been effected pursuant to
Rule 903 or Rule 904:
(A) the offer of the Securities was not made
to a person in the United States;
(B) either:
(i) at the time the buy order was
originated, the transferee was outside the
United States or the Transferor and any
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<PAGE>
person acting on its behalf reasonably
believed that the transferee was outside the
United States, or
(ii) the transaction was executed in, on or through the
facilities of a designated offshore securities market and
neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in the
United States;
(C) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(D) the transaction is not part of a plan or
scheme to evade the registration requirements of
the Securities Act; or
(2) if the transfer has been effected pursuant to Rule 144, the
Securities have been transferred in a transaction permitted by Rule 144.
This certificate and the statements contained herein are made for
the benefit of the Company and the Initial Purchasers. Terms used in this
certificate and not otherwise defined in the Indenture have the meanings set
forth in Regulation S under the Securities Act.
Dated: [Insert Name of Transferor]
By:____________________________________
Name:
Title:
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
cc: Seacor Holdings, Inc.
(c) Whenever any certification is to be given by a beneficial owner
of a portion of the Regulation S Global Security pursuant to Section 305(b)(iv)
in connection with the transfer of a beneficial interest in the Regulation S
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Global Security to a Person who wishes to take delivery thereof in the form of a
beneficial interest in the Restricted Global Security, such certification shall
be provided substantially in the form of the following certificate, with only
such changes as may be approved by the Company and the Initial Purchasers.
FORM OF TRANSFER CERTIFICATE
FOR TRANSFER FROM REGULATION S
GLOBAL SECURITY TO RESTRICTED GLOBAL SECURITY
(TRANSFERS PURSUANT TO SECTION 305(B)(IV)
OF THE INDENTURE)
First Trust National Association
as Trustee
Re: Seacor Holdings, Inc.
6.00% Convertible Subordinated Notes
Due July 1, 2003 (the "Securities")
Reference is hereby made to the Indenture, dated as of June 15, 1993
(the "Indenture"), between Seacor Holdings, Inc., as Issuer, and First Trust
National Association, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the
Indenture.
This letter relates to U.S. $______________ principal amount of
Securities which are evidenced by the Regulation S Global Security (CUSIP No.
U81190AA5) and held with the U.S. Depository through Euroclear or CEDEL or both
in the name of [insert name of transferor] (the "Transferor"). The Transferor
has requested a transfer of such beneficial interest in the Securities to a
Person that will take delivery thereof in the form of an equal principal amount
of Securities evidenced by the Restricted Global Security (CUSIP No. 811904AA9).
In connection with such request and in respect of such Securities,
the Transferor does hereby certify that such transfer has been effected pursuant
to and in accordance with Rule 144A under the United States Securities Act of
1933, as amended, and accordingly the Transferor does hereby further certify
that the Securities are being transferred to a person that the Transferor
reasonably believes is purchasing the Securities for its own account, or for one
or more accounts with respect to which such Person exercises sole investment
discretion, and such Person and each such account is a "qualified institutional
buyer"
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within the meaning of Rule 144A, in each case in a transaction meeting the
requirements of Rule 144A and in accordance with any applicable securities laws
of any state of the United States.
This certificate and the statements contained herein are made for
the benefit of the Company and the Initial Purchasers.
Dated: [Insert Name of Transferor]
By:_________________________________
Name:
Title:
(If the registered owner is a corporation, partnership
or fiduciary, the title of the Person signing on behalf
of such registered owner must be stated.)
ARTICLE THREE
The Securities
SECTION 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $57,500,000
except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities pursuant to Section 304,
305, 306, 906, 1108, 1302 or 1405.
The Securities shall be known and designated as the "6.00%
Convertible Subordinated Notes due July 1, 2003" of the Company. Their Stated
Maturity shall be July 1, 2003, and they shall bear interest at the rate of
6.00% per annum, from July 1, 1993 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, as the case may be,
payable semi-annually on January 1 and July 1, commencing January 1, 1994, until
the principal thereof is paid or made available for payment.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company in the
Borough of Manhattan, The City
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of New York maintained for such purpose and at any other office or agency
maintained by the Company for such purpose by check drawn on an account
maintained with a bank in The City of New York; provided, however, that upon
application by the Holder to the Security Registrar not later than the June 1 or
December 1 immediately preceding the relevant Interest Payment Date, such Holder
may receive payment by wire transfer to a U.S. Dollar account (such transfers to
be made only to Holders of an aggregate principal amount in excess of U.S.
$5,000,000) maintained by the payee with a bank in The City of New York or in
Europe.
The Securities shall be redeemable by the Company as provided in
Article Eleven.
The Securities shall be subordinated in right of payment to the
prior payment in full of Senior Indebtedness as provided in Article Twelve.
The Securities shall be convertible as provided in Article Thirteen.
The Securities shall be subject to purchase by the Company at the
option of the Holder as provided in Article Fourteen.
SECTION 302. Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery
and Dating.
The Securities shall be executed on behalf of the Company by any of
its Chairman of the Board, its Vice Chairman of the Board, its President or one
of its Vice Presidents, under its corporate seal reproduced thereon and attested
by its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
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
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of such Securities or did not hold such offices at the date
of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to Section
1002, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities
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shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 305. Registration, Registration of Transfer and
Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively referred to as the "Security Register") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers and exchanges thereof. The
Trustee is hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers and exchanges thereof as herein provided. Upon
surrender for registration of transfer or exchange of any Security at an office
or agency of the Company designated pursuant to Section 1002 for such purpose,
accompanied by a written instrument of transfer or exchange in the form provided
by the Company, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Securities of any authorized denominations and of a like aggregate
principal amount.
(b) Notwithstanding any other provisions of this Indenture or the
Securities, transfers of a Global Security, in whole or in part, and transfers
of interests therein of the kind described in clauses (ii), (iii) or (iv) below,
shall be made only in accordance with this Section 305(b), and all transfers of
an interest in the Regulation S Global Security shall comply with Section
305(b)(vi) below.
(i) A Global Security may not be transferred, in whole or in part,
to any Person other than the U.S. Depositary or a nominee thereof, and no
such transfer to any such other Person may be registered; provided that
this clause (i) shall not prohibit any transfer of a Security that is
issued in exchange for a Global Security but is not itself a Global
Security. No transfer of a Security to any Person shall be effective under
this Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this Section 305(b)(i)
shall prohibit or render ineffective any transfer of a beneficial interest
in a Global Security effected in accordance with the other provisions of
this Section 305(b).
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(ii) Restricted Global Security to Regulation S Global Security. If
the holder of a beneficial interest in the Restricted Global Security
wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the
Regulation S Global Security, such transfer may be effected, subject to
the rules and procedures of the U.S. Depositary, Euroclear and CEDEL, in
each case to the extent applicable (the "Applicable Procedures"), only in
accordance with the provisions of this Section 305(b)(ii). Upon receipt by
the Trustee, as Security Registrar, at its office in The City of New York
of (1) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Trustee to credit or cause
to be credited to a specified Agent Member's account a beneficial interest
in the Regulation S Global Security in a principal amount equal to that of
the beneficial interest in the Restricted Global Security to be so
transferred, (2) a written order given in accordance with the Applicable
Procedures containing information regarding the account of the Agent
Member (and the Euroclear or CEDEL account, as the case may be) to be
credited with, and the account of the Agent Member to be debited for, such
beneficial interest and (3) a certificate in substantially the form set
forth in Section 207(a) given by the holder of such beneficial interest,
the Trustee, as Security Registrar, shall instruct the U.S. Depositary to
reduce the principal amount of the Restricted Global Security, and to
increase the principal amount of the Regulation S Global Security, by the
principal amount of the beneficial interest in the Restricted Global
Security to be so transferred, and to credit or cause to be credited to
the account of the Person specified in such instructions (which shall be
the Agent Member for Euroclear or CEDEL or both, as the case may be) a
beneficial interest in the Regulations S Global Security having a
principal amount equal to the amount by which the principal amount of the
Restricted Global Security was reduced upon such transfer.
(iii) Restricted Global Security to Unrestricted Global Security. If
the holder of a beneficial interest in the Restricted Global Security
wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the
Unrestricted Global Security, such transfer may be effected, subject to
the Applicable Procedures, only in accordance with this Section
305(b)(iii). Upon receipt by the Trustee, as
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Security Registrar, at its office in The City of New York of (1) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Trustee to credit or cause to be credited to a
specified Agent Member's account a beneficial interest in the Unrestricted
Global Security in a principal amount equal to that of the beneficial
interest in the Restricted Global Security to be so transferred, (2) a
written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member (and the
Euroclear or CEDEL account, as the case may be) to be credited with, and
the account of the Agent Member to be debited for, such beneficial
interest and (3) a certificate in substantially the form set forth in
Section 207(b) given by the holder of such beneficial interest, the
Trustee, as Security Registrar, shall instruct the U.S. Depositary to
reduce the principal amount of the Restricted Global Security, and to
increase the principal amount of the Unrestricted Global Security, by the
principal amount of the beneficial interest in the Restricted Global
Security to be so transferred, and to credit or cause to be credited to
the account of the Person specified in such instructions (which shall be
the Agent Member for Euroclear or CEDEL or both, as the case may be) a
beneficial interest in the Unrestricted Global Security having a principal
amount equal to the amount by which the principal amount of the Restricted
Global Security was reduced upon such transfer.
(iv) Regulation S Global Security to Restricted Global Security. If
the holder of a beneficial interest in the Regulation S Global Security
wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in the
Restricted Global Security, such transfer may be effected, subject to the
Applicable Procedures, only in accordance with this Section 305(b)(iv).
Upon receipt by the Trustee, as Security Registrar, at its office in The
City of New York of (1) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Trustee to credit
or cause to be credited to a specified Agent Member's account a beneficial
interest in the Restricted Global Security in a principal amount equal to
that of the beneficial interest in the Regulation S Global Security to be
so transferred, (2) a written order given in accordance with the
Applicable Procedures containing information regarding the account of the
Agent Member to be
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credited with, and the account of the Agent Member (and the Euroclear or
CEDEL account, as the case may be) to be debited for, such beneficial
interest, and (3) a certificate in substantially the form set forth in
Section 207(c) given by the holder of such beneficial interest, the
Trustee, as Security Registrar, shall instruct the U.S. Depositary to
reduce the principal amount of the Regulation S Global Security, and to
increase the principal amount of the Restricted Global Security, by the
principal amount of the beneficial interest in the Regulation S Global
Security to be so transferred, and to credit or cause to be credited to
the account of the Person specified in such instructions a beneficial
interest in the Restricted Global Security having a principal amount equal
to the amount by which the principal amount of the Regulation S Global
Security was reduced upon such transfer.
(v) Other Exchanges. In the event that a Global Security or any
portion thereof is exchanged for Securities other than Global Securities,
such other Securities may in turn be exchanged (on transfer or otherwise)
for Securities that are not Global Securities or for beneficial interests
in a Global Security (if any is then outstanding) only in accordance with
such procedures, which shall be substantially consistent with the
provisions of clauses (i) through (iv) above (including the certification
requirements intended to insure that transfers of beneficial interests in
a Global Security comply with Rule 144A, Rule 144 or Regulation S under
the Securities Act, as the case may be) and any Applicable Procedures, as
may be from time to time adopted by the Company and the Trustee.
(vi) Interests in Regulation S Global Security to be Held Through
Euroclear or CEDEL. Until the termination of the Restricted Period,
interests in the Regulation S Global Security may be held only through
Agent Members acting for and on behalf of Euroclear and CEDEL, provided
that this clause (vi) shall not prohibit any transfer in accordance with
Section 305(b)(iv) hereof.
(c) Subject to the succeeding paragraph, every Security shall be
subject to the restrictions on transfer provided in the legend set forth in the
first and fourth paragraphs of Section 202. Whenever any Security is presented
or surrendered for registration of transfer or for exchange for a Security
registered in a name other than that of the Holder, such Security must be
accompanied by a
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certificate in substantially the form set forth in Section 206, dated the date
of such surrender and signed by the Holder of such Security, as to compliance
with such restrictions on transfer. The Security Registrar shall not be required
to accept for such registration of transfer or exchange any Security not so
accompanied by a properly completed certificate.
(d) The restrictions imposed by the legend set forth in the first
paragraph of Section 202 upon the transferability of any Security shall cease
and terminate when such Security has been sold pursuant to an effective
registration statement under the Securities Act or transferred in compliance
with Rule 144 under the Securities Act (or any successor provision thereto). Any
Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon surrender of such
Security for exchange to the Security Registrar in accordance with the
provisions of this Section 305 (accompanied, in the event that such restrictions
on transfer have terminated by reason of a transfer in compliance with Rule 144
or any successor provision, by an opinion of counsel having substantial
experience in practice under the Securities Act and otherwise reasonably
acceptable to the Company, addressed to the Company and in form acceptable to
the Company, to the effect that the transfer of such Security has been made in
compliance with Rule 144 or such successor provision), be exchanged for a new
Security, of like tenor and aggregate principal amount, which shall not bear the
restrictive legend set forth in the first paragraph of Section 202. The Company
shall inform the Trustee of the effective date of any registration statement
registering the Securities under the Securities Act. The Trustee shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned opinion of counsel or registration statement.
(e) As used in the preceding two paragraphs of this Section 305, the
term "transfer" encompasses any sale, pledge, transfer, hypothecation or other
disposition of any Security.
(f) No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1108, 1302 or 1405 not involving
any transfer.
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(g) The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 1104 and ending at the close of
business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
(h) The provisions of Clauses (1), (2), (3) and (4) below shall
apply only to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or the
Securities, a Global Security shall not be exchanged in whole or in part
for a Security registered in the name of any Person other than the U.S.
Depositary or one or more nominees thereof, provided that a Global
Security may also be exchanged for Securities registered in the names of
any person designated by the U.S. Depositary in the event that (i) the
U.S. Depositary has notified the Company that it is unwilling or unable to
continue as U.S. Depositary for such Global Security or such U.S.
Depositary has ceased to be a "clearing agency" registered under Exchange
Act, (ii) an Event of Default has occurred and is continuing with respect
to the Securities, or (iii) a request for certificates has been made upon
60 days' prior written notice given to the Trustee in accordance with the
U.S. Depositary's customary procedures and a copy of such notice has been
received by the Company from the Trustee. Any Global Security exchanged
pursuant to clause (i) above shall be so exchanged in whole and not in
part and any Global Security exchanged pursuant to clause (ii) or (iii)
above may be exchanged in whole or from time to time in part as directed
by the U.S. Depositary. Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security, provided that
any such Security so issued that is registered in the name of a Person
other than the U.S. Depositary or a nominee thereof shall not be a Global
Security.
(2) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully registered form,
without interest coupons, shall have an aggregate principal amount equal
to that of such Global Security or portion thereof to be so exchanged,
shall be registered in such names and be in such authorized denominations
as the U.S. Depositary shall designate and shall bear the
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applicable legends provided for herein. Any Global Security to be
exchanged in whole shall be surrendered by the U.S. Depositary to the
Trustee, as Security Registrar. With regard to any Global Security to be
exchanged in part, either such Global Security shall be so surrendered for
exchange or, if the Trustee is acting as custodian for the U.S. Depositary
or its nominee with respect to such Global Security, the principal amount
thereof shall be reduced, by an amount equal to the portion thereof to be
so exchanged, by means of an appropriate adjustment made on the records of
the Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such exchange to or upon
the order of the U.S. Depositary or an authorized representative thereof.
Any Security delivered in exchange for the Restricted Global Security or
any portion thereof shall, except as otherwise provided by clause (iii) of
Section 305(b), bear the legend regarding transfer restrictions applicable
to the Restricted Global Security set forth in the first paragraph of
Section 202.
(3) Subject to the provisions of clause (5) below, the registered
holder may grant proxies and otherwise authorize any Person, including
Agent Members and persons that may hold interests through Agent Members,
to take any action which a holder is entitled to take under this Indenture
or the Securities.
(4) In the event of the occurrence of any of the events specified in
clause (1) above, the Company will promptly make available to the Trustee
a reasonable supply of certificated Securities in definitive, fully
registered form, without interest coupons.
(5) Neither any members of, or participants in, the U.S. Depositary
("Agent Members") nor any other Persons on whose behalf Agent Members may
act (including Euroclear and CEDEL and account holders and participants
therein) shall have any rights under this Indenture with respect to any
Global Security registered in the name of the U.S. Depositary or any
nominee thereof, or under any such Global Security, and the U.S.
Depositary or such nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee from
giving
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effect to any written certification, proxy or other authorization
furnished by the U.S. Depositary or such nominee, as the case may be, or
impair, as between the U.S. Depositary, its Agent Members and any other
person on whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a holder
of any Security.
SECTION 306. Mutilated, Destroyed, Lost and
Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security.
Upon the issuance, authentication and delivery by the Trustee of any
new Security under this Section, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
Every new Security issued, authenticated and delivered by the
Trustee pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and
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proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest
Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for payment of such
interest.
If the Company shall be required by law to deduct any taxes from any
sum of interest payable hereunder to a Holder, (i) the Company shall make such
deductions and shall pay the full amount deducted to the relevant taxing
authority in accordance with applicable law and (ii) the amount of such
deduction shall be treated for purposes hereof as a payment of interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, and at the same
time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such
deposit prior to the date of the proposed payment, such money when
deposited to be held
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in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this Clause (1) 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 and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder 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 so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause
(2), such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security which is converted after any Regular
Record Date and on or prior to the corresponding Interest Payment Date, interest
on such Security whose Stated Maturity is on such Interest Payment Date shall be
deemed to continue to accrue and shall be payable on such Interest Payment Date
notwithstanding such conversion and notwithstanding that such Security may have
been called for redemption on a Redemption Date within such period, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name
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that Security (or one or more Predecessor Securities) is registered at the close
of business on such Regular Record Date. Except as otherwise expressly provided
in the immediately preceding sentence, in the case of any Security which is
converted, interest whose Stated Maturity is after the date of conversion of
such Security shall not be payable.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of, premium, if any,
and (subject to Section 307) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this
Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
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ARTICLE FOUR
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 conversion, registration of
transfer or exchange of Securities herein expressly provided for), 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 Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust,
as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year,
or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited irrevocably with the Trustee as
trust funds in trust for the benefit of Holders of Outstanding
Securities in an amount sufficient to pay and discharge the
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entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any)
and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company;
(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; and
(4) no Event of Default which, with notice or lapse of time, or
both, would become an Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
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ARTICLE FIVE
Remedies
SECTION 501. Events of Default.
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article Twelve or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon any Security 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 Security at its
Maturity; or
(3) 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 dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(4) a default under any bonds, debentures, notes or other evidences
of indebtedness for money borrowed by the Company or a Subsidiary or under
any mortgages, indentures or instruments under which there may be issued
or by which there may be secured or evidenced any indebtedness for money
borrowed by the Company or a Subsidiary, whether such indebtedness now
exists or shall hereafter be created, which indebtedness, individually or
in the aggregate, is in excess of $1.5 million principal amount, which
default shall constitute a failure to pay any portion of the principal of
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such indebtedness when due and payable after the expiration of any
applicable grace or cure period with respect thereto or shall have
resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged, or such acceleration
having been rescinded or annulled, within a period of 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 a written notice
specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded
or annulled and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company or a Significant
Subsidiary 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 or a Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or a Significant Subsidiary under any
applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of
the Company or a Significant Subsidiary or of any substantial part of
their respective properties, or ordering the winding up or liquidation of
the affairs of the Company or a Significant Subsidiary, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(6) the commencement by the Company or a Significant Subsidiary 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 either the Company or a Significant Subsidiary to the entry of
a decree or order for
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relief in respect of the Company or a Significant Subsidiary 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
either the Company or a Significant Subsidiary, or the filing by either
the Company or a Significant Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by either the Company or a Significant Subsidiary to
the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or a Significant Subsidiary or of
any substantial part of their respective properties, or the making by
either the Company or a Significant Subsidiary of an assignment for the
benefit of creditors, or the admission by either the Company or a
Significant Subsidiary in writing of an inability to pay the debts of
either the Company or a Significant Subsidiary generally as they become
due, or the taking of corporate action by the Company or a Significant
Subsidiary in furtherance of any such action.
SECTION 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 501(5) or 501(6)) occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities may declare the principal of all the Securities to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal shall
become immediately due and payable. If an Event of Default specified in Section
501(5) or 501(6) occurs, the principal of all the Securities shall
automatically, and without any declaration or other action on the part of the
Trustee or any Holder, become immediately due and payable.
At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article Five provided, the Holders of a
majority in principal amount of the Outstanding
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Securities, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with
the Trustee a sum sufficient to pay
(A) all overdue interest on all
Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities,
and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities 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.
SECTION 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
If
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for
a period of 30 days, or
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(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Trustee is authorized to recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount then due and payable
on such Securities for principal (and premium, if any) and interest, and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal (and premium, if any) and on any overdue interest, at the
rate borne by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights of the
Holders 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 any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities 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 claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such
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payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 505. Trustee May Enforce Claims
Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five
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
(or premium, if any) or interest, upon presentation of the Securities and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: Subject to Article Twelve to the payment of all amounts due
the Trustee under Section 607;
SECOND: Subject to Article Twelve to the payment of the amounts then
due and unpaid for first, interest
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on, and, second, for principal of (and premium, if any, on) the Securities
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for interest and
principal (and premium, if any) respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto, as their interest may appear or as a court of competent
jurisdiction shall direct.
SECTION 507. Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written
notice to the Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60- day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or 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
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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 and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption or repurchase, on the
Redemption Date or Repurchase Date, as the case may be) and to convert such
Security in accordance with Article Thirteen and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not
be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 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.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Securities 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 Five or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) 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 Securities may on behalf of the Holders of all the Securities waive
any past default hereunder and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
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SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; provided, that this Section 514
shall not be deemed to authorize any court to require such an undertaking or to
make such an assessment in any suit instituted by the Company or in any suit for
the enforcement of the right to convert any Security in accordance with Article
Thirteen.
SECTION 515. Waiver of Usury, 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 usury, stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE SIX
The Trustee
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions
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expressed therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be
under a duty to examine the same to determine whether or not they conform
to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or
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affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder, the
Trustee shall give the Holders, in the manner provided in Section 106, notice of
any default hereunder; provided, however, that in the case of any default of the
character specified in Section 501(3), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors 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 written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
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(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(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; 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.
SECTION 604. Not Responsible for Recitals
or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
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Section 608 and Section 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
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 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, willful
misconduct or bad faith on its part, arising out of or in connection with
the acceptance or administration of this trust, including the 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 notify the Company of any claim asserted against it for
which it may seek indemnity.
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SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $25,000,000, subject to supervision or
examination by federal or state authority, in good standing and having an
established place of business in the Borough of Manhattan, The City of New York.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
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 in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If the instrument of acceptance by a successor Trustee
required by Section 611 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in principal amount of the
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Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor Trustee
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee shall have been so appointed by the Company or the Holders
and accepted appointment in the manner required by Section 611, any Holder who
has been a bona fide Holder of a Security for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the 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. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
No successor Trustee shall accept its appointment unless at the time
of such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 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 the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so
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authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 613. Preferential Collection
of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer, partial
conversion, partial redemption, or partial repurchase or pursuant to Section
306, and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$25,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be con-
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solidated, or any corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any
corporation succeeding to the corporate agency or corporate trust business of an
Authenticating Agent, shall continue to be an Authenticating Agent, provided
such corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The 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 payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
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This is one of the Securities described in the within-mentioned
Indenture.
-----------------------------,
As Trustee
By___________________________,
As Authenticating Agent
By___________________________
Authorized Officer
ARTICLE SEVEN
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
(a) semi-annually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days prior
to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 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
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of Holders contained in the most recent list furnished to the Trustee as
provided in Section 701 and the names and addresses of Holders received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 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 Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning
the Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission, if applicable, and with
the Company. The Company will notify the Trustee when the Securities are listed
on any stock exchange.
SECTION 704. Reports by Company.
(a) The Company shall file with the Trustee and the Commission, if
applicable, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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(b) The Company shall provide the Trustee with at least 30 days
prior notice of any change in location of its principal executive offices or
other principal place of business.
ARTICLE EIGHT
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
Person 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
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person 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,
partnership or trust, shall be organized and validly existing under the
laws of the United States of America, any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of (and premium, if
any) and interest on all the Securities and the performance or observance
of every covenant of this Indenture on the part of the Company to be
performed or observed and shall have provided for conversion rights in
accordance with Article Thirteen;
(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
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(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, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person 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 Person 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
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be released from its obligations and
covenants under this Indenture and the Securities.
ARTICLE NINE
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:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
(2) to add to the covenants of the Company for the equal and ratable
benefit of the Holders, or to surrender any right or power herein
conferred upon the Company; or
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(3) to secure the Company's obligations in respect of the
Securities; or
(4) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article Thirteen; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions
of this Indenture, provided that such action pursuant to this Clause (5)
shall not adversely affect the interests or legal rights of the Holders 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 Securities, by the Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
instalment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where, or the coin or
currency in which, any Security or any premium or interest thereon is
payable, or impair the 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 repurchase, on or after the Redemption Date or Repurchase
Date, as the case may be), or adversely affect the right to convert any
Security as provided in Article Thirteen (except as permitted by Section
901(4)), or modify the provisions of this Indenture with
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respect to the subordination of the Securities in a manner adverse to the
Holders, or modify the redemption provisions in a manner adverse to the
Holders, or modify the provisions relating to the Company's requirement to
offer to repurchase Notes upon a Change in Control in a manner adverse to
the Holders, or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify the obligation of the Company to maintain an office or
agency in the Borough of Manhattan, The City of New York pursuant to
Section 1002, or
(4) modify any of the provisions of this Section 902, Section 513 or
Section 1008, 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 Security affected
thereby, or
(5) modify any of the provisions of Section 1009.
It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 601 and Section 603) 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.
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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 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.
SECTION 906. Reference in Securities
to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the judgment of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
ARTICLE TEN
Covenants
SECTION 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The City of
New York an office or agency where Securities may be presented or surrendered
for payment, where Securities may be surrendered for registration of
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transfer or exchange, where Securities may be surrendered for conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside the Borough of Manhattan, The City of New
York) where the Securities may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
SECTION 1003. Money for Security
Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal (and
premium, if any) or interest so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit with a Paying Agent a sum sufficient to pay such amount,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium, if any, 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.
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The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section 1003,
that such Paying Agent will
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Securities 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;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any payment of
principal, premium, if any, or interest; 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 obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security and remaining unclaimed for two years after
such principal (and premium, if any) or interest has become due and payable
shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of
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New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard to
any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the 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 1006. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct
of its business or the business of any Subsidiary to be maintained and kept in
good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties, or
disposing of any of them, if such discontinuance or disposition is, in the
judgment of the Company, desirable in the conduct of its
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business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 1005 to 1007, inclusive, if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Securities shall, by Act of such Holders, either waive
such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 1009. Delivery of Certain Information.
At any time when the Company is not subject to Section 13 or 15(d)
of the Exchange Act, upon the request of a Holder or the holder of shares of
Common Stock issued upon conversion thereof, the Company will promptly furnish
or cause to be furnished Rule 144A Information (as defined below) to such Holder
or such holder of shares of Common Stock issued upon conversion of Securities,
or to a prospective purchaser of any such security designated by any such Holder
or holder, as the case may be, to the extent required to permit compliance by
such Holder or holder with Rule 144A under the Securities Act in connection with
the
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resale of any such security. "Rule 144A Information" shall be such information
as is specified pursuant to Rule 144A(d)(4) under the Securities Act.
ARTICLE ELEVEN
Redemption of Securities
SECTION 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on or after July 1, 1996, at the
Redemption Prices specified in the form of Security hereinbefore set forth,
together with accrued interest to the Redemption Date.
SECTION 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall be
made in accordance with such provision and this Article Eleven.
SECTION 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed.
SECTION 1104. Selection by Trustee of Securities to Be
Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate in the circumstances and which may provide for the selection for
redemption of portions (equal to $1,000 or any integral multiple thereof)
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of the principal amount of Securities of a denomination larger than $1,000.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed shall be treated
by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption of any
Securities, the principal amounts) of the particular Securities to be
redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date,
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(5) the conversion price, the date on which the right to convert the
Securities to be redeemed will terminate and the place or places where
such Securities may be surrendered for conversion, and
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company, and shall be irrevocable.
SECTION 1106. 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, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest on, all the
Securities which are to be redeemed on that date other than any Securities
called for redemption on that date which have been converted prior to the date
of such deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held in
trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307) be paid to the Company upon
Company Request or, if then held by the Company, shall be released from such
trust.
SECTION 1107. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear or accrue any interest. Upon
surrender of any such Security for redemption in accordance with said notice,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest to (but not including)
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the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear and accrue interest from the Redemption Date at the rate borne
by the Security.
SECTION 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his
attorney-in-fact duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities, of any authorized
denomination as requested by such Holder, in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal amount of the
Security so surrendered.
ARTICLE TWELVE
Subordination of Securities
SECTION 1201. Securities Subordinate to Senior
Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article Twelve, the indebtedness
represented by the Securities and the payment of the principal of (and premium,
if any) and interest on each and all of the Securities and all obligations of
the Company under this Indenture are hereby expressly made subordinate and
junior in right of payment to the prior payment in full of all Senior
Indebtedness and that said subordination is for the benefit of the holders of
Senior Indebtedness and
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they and or each of them severally may enforce such subordination.
SECTION 1202. Payment Over of Proceeds Upon Dissolution,
Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in money or
money's worth, before the Holders of the Securities are entitled to receive any
payment on account of principal of (or premium, if any) or interest on the
Securities, and to that end the holders of Senior Indebtedness shall be entitled
to receive, for application to the payment thereof, any payment or distribution
of any kind or character, whether in cash, property or securities, which may be
payable or deliverable in respect of the Securities in any such case,
proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, before all Senior Indebtedness is paid
in full or payment thereof provided for, and if such fact shall, at or prior to
the time of such payment or distribution, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Indebtedness.
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For purposes of this Article Twelve only, the words "cash, property
or securities" shall not be deemed to include shares of capital stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which in
either case are subordinated in right of payment to all Senior Indebtedness
which may at the time be outstanding to substantially the same extent as, or to
a greater extent than, the Securities are so subordinated as provided in this
Article Twelve. The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the conveyance or transfer of its properties and assets substantially
as an entirety to another Person upon the terms and conditions set forth in
Article Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Company for the purposes of this Section 1202 if the
Person formed by such consolidation or into which the Company is merged or which
acquires by conveyance or transfer such properties and assets substantially as
an entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article Eight.
SECTION 1203. No Payment When Senior Indebtedness in
Default.
(a) In the event and during the continuation of any default in the
payment of principal of (or premium, if any) or interest on any Senior
Indebtedness beyond any applicable grace period with respect thereto (unless and
until such payment default shall have been cured or waived in writing by the
holders of such Senior Indebtedness), or (b) in the event any judicial
proceeding shall be pending with respect to any such default, then no payment
shall be made by the Company on account of principal of (or premium, if any) or
interest on the Securities or on account of the purchase or other acquisition of
Securities (including pursuant to Articles Eleven and Thirteen).
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 1203, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
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The provisions of this Section 1203 shall not apply to any payment
with respect to which Section 1202 would be applicable.
SECTION 1204. Payment Permitted If No Default.
Nothing contained in this Article Twelve or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or
other winding up, assignment for the benefit of creditors or other marshalling
of assets and liabilities of the Company referred to in Section 1202 or under
the conditions described in Section 1203, from making payments at any time of
principal of (and premium, if any) or interest on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (and premium, if any) or interest
on the Securities or the retention of such payment by the Holders, if, at the
time of such application by the Trustee, it did not have knowledge that such
payment would have been prohibited by the provisions of this Article Twelve.
SECTION 1205. Subrogation to Rights of Holders of Senior
Indebtedness.
Subject to the payment in full of all Senior Indebtedness, and until
the Securities are paid in full, the Holders of the Securities shall be
subrogated (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to indebtedness of the
Company to substantially the same extent as the Securities are subordinated and
is entitled to like rights of subrogation) to the rights of the holders of such
Senior Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness to the extent that payments and
distributions otherwise payable to Holders of Securities have been applied to
the payment of Senior Indebtedness as provided by this Article Twelve. For
purposes of such subrogation, no payments or distributions to the holders of the
Senior Indebtedness of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled, except for the provisions of
this Article Twelve, and no payments over pursuant to the provisions of this
Article Twelve to the holders of Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as among the Company, its creditors other than
holders of Senior
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Indebtedness and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Indebtedness.
SECTION 1206. Provisions Solely to Define Relative Rights.
The provisions of this Article Twelve are and are intended solely
for the purpose of defining the relative rights of the Holders of the Securities
on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article Twelve or elsewhere in this Indenture or in
the Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article Twelve of the holders of
Senior Indebtedness, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or (b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article Twelve of the
holders of Senior Indebtedness to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 1207. Trustee to Effectuate Subordination.
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Twelve and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1208. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by
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any such holder, or by any non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
Twelve or the obligations hereunder of the Holders of the Securities to the
holders of Senior Indebtedness, do any one or more of the following: (i) change
the manner, place or terms of payment or extend the time of payment of, or renew
or alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; (iv) exercise or refrain from exercising any rights
against the Company and any other Person; (v) apply any and all sums received
from time to time to the Senior Indebtedness.
SECTION 1209. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article Twelve or any other provision of this Indenture, the Trustee shall
not be charged with knowledge of the existence of any facts which would prohibit
the making of any payment to or by the Trustee in respect of the Securities,
unless and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section 1209 at least two Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained
to the contrary notwithstanding,
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the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to establish that such notice has been given by a holder of Senior
Indebtedness (or a trustee therefor). In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Twelve, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Indebtedness 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 Twelve, 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.
SECTION 1210. Reliance on Judicial Order or Certificate of
Liquidating Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article Twelve, the Trustee, subject to the provisions of Section
601, and the Holders of the Securities shall be entitled to rely upon any order
or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness 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
Twelve.
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SECTION 1211. Trustee Not Fiduciary for Holders of Senior
Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
Twelve or otherwise.
SECTION 1212. Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's
Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article Twelve with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other holder of
Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of
any of its rights as such holder.
Nothing in this Article Twelve shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 607.
SECTION 1213. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Twelve shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if such Paying Agent
were named in this Article Twelve in addition to or in place of the Trustee;
provided, however, that Section 1212 shall not apply to the Company or any
Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 1214. Certain Conversions Deemed Payment.
For the purposes of this Article Twelve only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance with
Article Thirteen shall not be deemed to constitute a payment or distribution on
account of the principal of or premium or interest on
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Securities or on account of the purchase or other acquisition of Securities, and
(2) the payment, issuance or delivery of cash, property or securities (other
than junior securities) upon conversion of a Security shall be deemed to
constitute payment on account of the principal of such Security. For the
purposes of this Section 1214, the term "junior securities" means (a) shares of
any stock of any class of the Company and (b) securities of the Company which
are subordinated in right of payment to the prior payment in full of all Senior
Indebtedness which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article Twelve.
Nothing contained in this Article Twelve or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the right, which is absolute and unconditional, of the Holder of any
Security to convert such Security in accordance with Article Thirteen.
ARTICLE THIRTEEN
Conversion of Securities
SECTION 1301. Conversion Privilege and Conversion Price.
Subject to and upon compliance with the provisions of this Article
Thirteen, at the option of the Holder thereof, any Security or any portion of
the principal amount thereof which is $1,000 or an integral multiple of $1,000
may be converted at the principal amount thereof, or of such portion thereof,
into fully paid and nonassessable shares of Common Stock of the Company (in the
form of a Domestic Share Certificate or a Foreign Share Certificate, as
applicable) at the conversion price, determined as hereinafter provided, in
effect at the time of conversion. Such conversion right shall expire at the
close of business on July 1, 2003. In case a Security or portion thereof is
called for redemption, such conversion right in respect of the Security or
portion so called shall expire at the close of business on the corresponding
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
No Holder of a Security will be entitled to convert such Security,
or a portion thereof, if such Holder is a Foreigner or holding for the account
of a Foreigner and the conversion will, in the good faith judgment of the
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Company, increase the aggregate ownership by Foreigners above the then Permitted
Percentage.
The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "conversion price") shall be initially $25.625 per
share of Common Stock. The conversion price shall be adjusted in certain
instances as provided in Section 1304.
In case the Company shall, by dividend or otherwise, declare or make
a distribution on its Common Stock referred to in paragraph (4) or (5) of
Section 1304 (including, without limitation, dividends or distributions referred
to in the last sentence of paragraph (4) of Section 1304), the Holder of each
Security, upon the conversion thereof pursuant to this Article Thirteen
subsequent to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution and prior to the
effectiveness of the conversion price adjustment in respect of such distribution
pursuant to paragraph (4) or (5) of Section 1304, shall also be entitled to
receive for each share of Common Stock into which such Security is converted,
the portion of the evidences of indebtedness, shares of capital stock,
securities, cash and assets so distributed applicable to one share of Common
Stock, provided that, at the election of the Company (whose election shall be
evidenced by a Board Resolution) with respect to all Holders so converting, the
Company may, in lieu of distributing to such Holder any portion of such
distribution not consisting of cash or securities of the Company, pay such
Holder an amount in cash equal to the fair market value thereof (as determined
in good faith by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution). If any conversion of a Security described
in the immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Common Stock which the Holder of the Security so
converted is entitled to receive in accordance with the immediately preceding
sentence, the Company may elect (such election to be evidenced by a Board
Resolution) to distribute to such Holder a due bill for the evidences of
indebtedness, shares of capital stock, securities, cash or assets to which such
Holder is so entitled, provided that such due bill (i) meets any applicable
requirements of the principal national securities exchange or other market on
which the Common Stock is then traded and (ii) requires payment or delivery of
such evidences of indebtedness, shares of capital stock, securities, cash or
assets no later than the date of payment or delivery thereof to holders of
Common Stock receiving such distribution.
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SECTION 1302. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency maintained by the
Company pursuant to Section 1002, accompanied by (a) written notice (as set
forth in Section 205 herein) to the Company at such office or agency that the
Holder elects to convert such Security or, if less than the entire principal
amount thereof is to be converted, the portion thereof to be converted and (b)
if shares or any portion of such Security not to be converted are to be issued
in the name of a Person other than the Holder thereof, and the restrictions on
transfer of such Security set forth in the first paragraph of Section 202 remain
in effect, a certification of the Holder as to compliance with such restrictions
(as set forth in Section 206).
If the restrictions on transfer of a Security set forth in the first
paragraph of Section 202 remain in effect, all shares of Common Stock delivered
upon conversion thereof shall bear a restrictive legend substantially in the
form of such paragraph.
Except as described in the last paragraph of Section 307, no Holder
of Securities will be entitled upon conversion thereof to any payment or
adjustment on account of accrued and unpaid interest thereon or on account of
dividends on the shares of Common Stock issued in connection therewith.
Securities surrendered for conversion during the period from the close of
business on any Regular Record Date to the opening of business on the
corresponding Interest Payment Date (except Securities called for redemption on
a Redemption Date within such period) must be accompanied by payment to the
Company in New York Clearing House Funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment
Date.
Securities shall be deemed to have been converted immediately prior
to the close of business on the day of surrender of such Securities for
conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Securities as Holders shall cease, and the Person
or Persons entitled to receive the Common Stock issuable upon conversion shall
be treated for all purposes as the record holder or holders of such Common Stock
at such time. As promptly as practicable on or after the conversion date, the
Company shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock
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issuable upon conversion, together with payment in lieu of any fraction of a
share as provided in Section 1303.
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of such Security.
SECTION 1303. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion
of Securities. If more than one Security shall be surrendered for conversion at
one time by the same Holder, the number of full shares which shall be issuable
upon conversion thereof shall be computed on the basis of the aggregate
principal amount of the Securities (or specified portions thereof) so
surrendered. Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or Securities (or
specified portions thereof), the Company shall pay a cash adjustment in respect
of such fraction in an amount equal to the same fraction of the Closing Price
per share of the Common Stock at the close of business on the day of conversion
(or, if such day is not a Trading Day, on the Trading Day immediately preceding
such day).
SECTION 1304. Adjustment of Conversion Price.
(1) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in Common Stock or shall pay or
make a dividend or other distribution on any other class of capital stock of the
Company which dividend or distribution includes Common Stock, the conversion
price in effect at the opening of business on the day next following the date
fixed for the determination of stockholders entitled to receive such dividend or
other distribution shall be reduced by multiplying such conversion price by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
reduction to become effective immediately after the opening of business on the
day next following the date fixed for such determination. For the purposes of
this paragraph (1),
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the number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company shall not pay any dividend or make any distribution on shares
of Common Stock held in the treasury of the Company.
(2) In case the Company shall pay or make a dividend or other
distribution on its Common Stock consisting exclusively of, or shall otherwise
issue to all holders of its Common Stock, rights, warrants or options entitling
the holders thereof to subscribe for or purchase shares of Common Stock at a
price per share less than the current market price per share (determined as
provided in paragraph (7) of this Section 1304) of the Common Stock on the date
fixed for the determination of stockholders entitled to receive such rights,
warrants or options, the conversion price in effect at the opening of business
on the day following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding at the close of business on the
date fixed for such determination plus the number of shares of Common Stock
which the aggregate of the offering price of the total number of shares of
Common Stock so offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination plus the number of shares of Common Stock so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
shall not issue any rights, warrants or options in respect of shares of Common
Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be subdivided
into a greater number of shares of Common Stock, the conversion price in effect
at the opening of business on the day following the day upon which such
subdivision becomes effective shall be proportionately reduced, and, conversely,
in case outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the conversion price in effect at the opening
of business on the day following the day upon
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which such combination becomes effective shall be proportionately increased,
such reduction or increase, as the case may be, to become effective immediately
after the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(4) Subject to the last sentence of this paragraph (4), in case the
Company shall, by dividend or otherwise, distribute to all holders of its Common
Stock evidences of its indebtedness, shares of any class of capital stock,
securities, cash or property (excluding any rights, warrants or options referred
to in paragraph (2) of this Section 1304, any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in paragraph
(1) of this Section 1304), the conversion price shall be reduced so that the
same shall equal the price determined by multiplying the conversion price in
effect immediately prior to the effectiveness of the conversion price reduction
contemplated by this paragraph (4) by a fraction of which the numerator shall be
the current market price per share (determined as provided in paragraph (7) of
this Section) of the Common Stock on the date of such effectiveness less the
fair market value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution and shall,
in the case of securities being distributed for which prior thereto there is an
actual or when issued trading market, be no less than the value determined by
reference to the average of the closing prices in such market over the period
specified in the succeeding sentence), on the date of such effectiveness, of the
portion of the evidences of indebtedness, shares of capital stock, securities,
cash and property so distributed applicable to one share of Common Stock and the
denominator shall be such current market price per share of the Common Stock,
such reduction to become effective immediately prior to the opening of business
on the day next following the later of (a) the date fixed for the payment of
such distribution and (b) the date 20 days after the notice relating to such
distribution is given pursuant to Section 1306(a) (such later date of (a) and
(b) being referred to as the "Reference Date"). If the Board of Directors
determines the fair market value of any distribution for purposes of this
paragraph (4) by reference to the actual or when issued trading market for any
securities comprising such distribution, it must in doing so consider the prices
in such market over the same period used in computing the current market price
per share pursuant to paragraph (7) of this Section. For purposes of this
paragraph (4), any dividend or distribution that includes shares of Common Stock
or rights, warrants or options to subscribe for or
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purchase shares of Common Stock shall be deemed instead to be (a) a dividend or
distribution of the evidences of indebtedness, cash, property, shares of capital
stock or securities other than such shares of Common Stock or such rights,
warrants or options (making any conversion price reduction required by this
paragraph (4)) immediately followed by (b) a dividend or distribution of such
shares of Common Stock or such rights, warrants or options (making any further
conversion price reduction required by paragraph (1) or (2) of this Section
1304, except (i) the Reference Date of such dividend or distribution as defined
in this paragraph (4) shall be substituted as "the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution", "the date fixed for the determination of stockholders entitled to
receive such rights, warrants or options" and "the date fixed for such
determination" within the meaning of paragraphs (1) and (2) of this Section 1304
and (ii) any shares of Common Stock included in such dividend or distribution
shall not be deemed "outstanding at the close of business on the date fixed for
such determination" within the meaning of paragraph (1) of this Section 1304).
(5) In case the Company shall, by dividend or otherwise, make a
distribution to all holders of its Common Stock exclusively in cash in an
aggregate amount that, together with (i) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in cash within
the 12 months preceding the date of payment of such distribution and in respect
of which no conversion price adjustment pursuant to this paragraph (5) has been
made and (ii) the aggregate of any cash plus the fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration of the
tender or exchange offer referred to below, of consideration payable in respect
of any tender or exchange offer by the Company or a Subsidiary for all or any
portion of the Common Stock concluded within the 12 months preceding the date of
payment of such distribution and in respect of which no conversion price
adjustment pursuant to paragraph (6) of this Section 1304 has been made, exceeds
12.5% of the product of the current market price per share (determined as
provided in paragraph (7) of this Section 1304) of the Common Stock on the date
fixed for stockholders entitled to receive such distribution times the number of
shares of Common Stock outstanding on such date, the conversion price shall be
reduced so that the same shall equal the price determined by multiplying the
conversion price in effect immediately prior to the effectiveness of the
conversion price reduction contemplated by this paragraph (5) by a
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fraction of which the numerator shall be the current market price per share
(determined as provided in paragraph (7) of this Section 1304) of the Common
Stock on the date of such effectiveness less the amount of cash so distributed
applicable to one share of Common Stock and the denominator shall be such
current market price per share of the Common Stock, such reduction to become
effective immediately prior to the opening of business on the later of (a) the
day following the date fixed for the payment of such distribution and (b) the
date 20 days after the notice relating to such distribution is given pursuant to
Section 1306(a).
(6) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer shall involve an aggregate consideration having a fair
market value (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) at the
last time (the "Expiration Time") tenders or exchanges may be made pursuant to
such tender or exchange offer (as it may be amended) that, together with (i) the
aggregate of the cash plus the fair market value (as determined in good faith by
the Board of Directors, whose determination shall be conclusive and described in
a Board Resolution), as of the expiration of the other tender or exchange offer
referred to below, of consideration payable in respect of any other tender or
exchange offer by the Company or a Subsidiary for all or any portion of the
Common Stock concluded within the preceding 12 months and in respect of which no
conversion price adjustment pursuant to this paragraph (6) has been made and
(ii) the aggregate amount of any distributions to all holders of the Common
Stock made exclusively in cash within the preceding 12 months and in respect of
which no conversion price adjustment pursuant to paragraph (5) of this Section
1304 has been made, exceeds 12.5% of the product of the current market price per
share (determined as provided in paragraph (7) of this Section 1304) of the
Common Stock on the Expiration Time times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time, the
conversion price shall be reduced (but not increased) so that the same shall
equal the price determined by multiplying the conversion price in effect
immediately prior to the Expiration Time by a fraction of which the numerator
shall be (i) the product of the current market price per share (determined as
provided in paragraph (7) of this Section 1304) of the Common Stock at the
Expiration Time times the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) at the Expiration Time minus (ii)
the fair market
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value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender or exchange offer) of all shares validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares deemed so accepted, up to
any such maximum, being referred to as the "Purchased Shares") and the
denominator shall be the product of (i) such current market price per share at
the Expiration Time times (ii) such number of outstanding shares at the
Expiration Time less the number of Purchased Shares, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Time.
(7) For the purpose of any computation under this paragraph and
paragraphs (2), (4) and (5) of this Section 1304, the current market price per
share of Common Stock on any date in question shall be deemed to be the average
of the daily Closing Prices for the 5 consecutive Trading Days selected by the
Company commencing not more than 20 Trading Days before, and ending not later
than, the date in question; provided, however, that (i) if the "ex" date (as
hereinafter defined) for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to the conversion price
pursuant to paragraph (1), (2), (3), (4), (5) or (6) above ("Other Event")
occurs on or after the 20th Trading Day prior to the date in question and prior
to the "ex" date for the issuance or distribution requiring such computation
(the "Current Event"), the Closing Price for each Trading Day prior to the "ex"
date for such Other Event shall be adjusted by multiplying such Closing Price by
the same fraction by which the conversion price is so required to be adjusted as
a result of such Other Event, (ii) if the "ex" date for any Other Event occurs
after the "ex" date for the Current Event and on or prior to the date in
question, the Closing Price for each Trading Day on and after the "ex" date for
such Other Event shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the conversion price is so required to be
adjusted as a result of such Other Event, (iii) if the "ex" date for any Other
Event occurs on the "ex" date for the Current Event, one of those events shall
be deemed for purposes of clauses (i) and (ii) of this proviso to have an "ex"
date occurring prior to the "ex" date for the other event, and (iv) if the "ex"
date for the Current Event is on or prior to the date in question, after taking
into account any adjustment required pursuant to clause (ii) of this proviso,
the Closing Price for each Trading Day on or after such "ex" date shall be
adjusted by adding thereto the amount of any cash and the fair market value on
the date in question (as determined in good faith
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by the Board of Directors in a manner consistent with any determination of such
value for purposes of paragraph (4) or (5) of this Section 1304, whose
determination shall be conclusive and described in a Board Resolution) of the
portion of the rights, warrants, options, evidences of indebtedness, shares of
capital stock, securities, cash or property being distributed applicable to one
share of Common Stock. For the purpose of any computation under paragraph (6) of
this Section 1304, the current market price per share of Common Stock on any
date in question shall be deemed to be the average of the daily Closing Prices
for the 5 consecutive Trading Days selected by the Company commencing on or
after the latest (the "Commencement Date") of (i) the date 20 Trading Days
before the date in question, (ii) the date of commencement of the tender or
exchange offer requiring such computation and (iii) the date of the last
amendment, if any, of such tender or exchange offer involving a change in the
maximum number of shares for which tenders are sought or a change in the
consideration offered, and ending not later than the date of the Expiration Time
of such tender or exchange offer (or, if such Expiration Time occurs before the
close of trading on a Trading Day, not later than the Trading Day immediately
preceding the date of such Expiration Time); provided, however, that if the "ex"
date for any Other Event (other than the tender or exchange offer requiring such
computation) occurs on or after the Commencement Date and on or prior to the
date of the Expiration Time for the tender or exchange offer requiring such
computation, the Closing Price for each Trading Day prior to the "ex" date for
such Other Event shall be adjusted by multiplying such Closing Price by the same
fraction by which the conversion price is so required to be adjusted as a result
of such other event. For purposes of this paragraph, the term "ex" date, (i)
when used with respect to any issuance or distribution, means the first date on
which the Common Stock trades regular way on the relevant exchange or in the
relevant market from which the Closing Price was obtained without the right to
receive such issuance or distribution, (ii) when used with respect to any
subdivision or combination of shares of Common Stock, means the first date on
which the Common Stock trades regular way on such exchange or in such market
after the time at which such subdivision or combination becomes effective, and
(iii) when used with respect to any tender or exchange offer means the first
date on which the Common Stock trades regular way on such exchange or in such
market after the Expiration Time of such tender or exchange offer.
(8) The Company may make such reductions in the conversion price, in
addition to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this
Section, as
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it considers to be advisable in order that any event treated for Federal income
tax purposes as a dividend of stock or stock rights shall not be taxable to the
recipients.
(9) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in the
conversion price; provided, however, that any adjustments which by reason of
this paragraph (9) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment.
SECTION 1305. Notice of Adjustments of Conversion Price.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price in
accordance with Section 1304 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted conversion price and
showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall forthwith be filed (with a copy to the
Trustee) at each office or agency maintained for the purpose of conversion
of Securities pursuant to Section 1002; and
(b) a notice stating that the conversion price has been adjusted and
setting forth the adjusted conversion price shall forthwith be required,
and as soon as practicable after it is required, such notice shall be
mailed by the Company to all Holders at their last addresses as they shall
appear in the Security Register.
SECTION 1306. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable (i) otherwise than exclusively in cash or (ii)
exclusively in cash in an amount that would require a conversion price
adjustment pursuant to paragraph (5) of Section 1304; or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights, warrants or options to subscribe for or purchase
any shares of
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capital stock of any class or of any other rights (excluding employee
stock options); or
(c) of any reclassification of the Common Stock of the Company (other
than a subdivision or combination of its outstanding shares of Common
Stock), or of any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company; or
(e) the Company or any Subsidiary of the Company shall commence a
tender or exchange offer for all or a portion of the Company's outstanding
shares of Common Stock (or shall amend any such tender or exchange offer);
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 1002, and shall
cause to be mailed to all Holders at their last addresses as they shall appear
in the Security Register, at least 20 days (or 10 days in any case specified in
clause (a) or (b) above) prior to the applicable record, effective or expiration
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend, distribution or granting of
rights, warrants or options, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such dividend,
distribution, rights, warrants or options are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective, and the
date as of which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up, or (z) the date on which such
tender offer commenced, the date on which such tender offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto).
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SECTION 1307. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, solely for
the purpose of effecting the conversion of Securities, the whole number of
shares of Common Stock then issuable upon the conversion in full of all
outstanding Securities.
SECTION 1308. Taxes on Conversions.
The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any tax which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the Holder
of the Security or Securities to be converted, and no such issue or delivery
shall be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax, or has established to the satisfaction of
the Company that such tax has been paid.
SECTION 1309. Covenant as to Common Stock.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be newly issued (and not
treasury shares) and be duly authorized, validly issued, fully paid and
non-assessable and, except as provided in Section 1308, the Company will pay all
taxes, liens and charges with respect to the issue thereof.
SECTION 1310. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee to be cancelled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 309.
SECTION 1311. Provisions in Case of Reclassification,
Consolidation, Merger or Sale of Assets.
In the event that the Company shall be a party to any transaction
(including without limitation any (i) recapitalization or reclassification of
the Common Stock (other
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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), (ii) any consolidation of the Company with, or merger of the Company
into, any other person, any merger of another person into the Company (other
than a merger which does not result in a reclassification, conversion, exchange
or cancellation of outstanding shares of Common Stock of the Company), (iii) any
sale or transfer of all or substantially all of the assets of the Company, or
(iv) any compulsory share exchange) pursuant to which the Common Stock is
converted into the right to receive other securities, cash or other property,
then lawful provision shall be made as part of the terms of such transaction
whereby the Holder of each Security then outstanding shall have the right
thereafter to convert such Security only into (1) in the case of a transaction
which constitutes a Change in Control (as such term is defined in Article
Fourteen) and subject to funds being legally available for such purpose under
applicable law at the time of such conversion, the kind and amount of
securities, cash and other property receivable upon such transaction by a holder
of the number of shares of Common Stock into which such Security might have been
converted immediately prior to such transaction, and (2) in the case of a
transaction which does not constitute a Change in Control, the kind of common
stock receivable upon such transaction by a holder of Common Stock (at an
adjusted conversion price, in the case of clause (2), equal to (a) the
conversion price determined pursuant to Section 1304 as though all such
securities, cash or property (other than common stock) had been distributed in a
dividend covered by paragraph (4) of Section 1304 with an "ex" date on the date
of such transaction divided by (b) the number of shares (or fraction thereof) of
common stock receivable upon such transaction in respect of each share of Common
Stock). The Company or the person formed by such consolidation or resulting from
such merger or which acquired such assets or which acquired the Company's
shares, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture establishing such rights. Such supplemental indenture
shall provide for adjustments which, for events subsequent to the effective date
of such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section 1311 shall similarly apply to successive transactions
of the foregoing type.
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ARTICLE FOURTEEN
Right to Require Repurchase
SECTION 1401. Right to Require Repurchase.
In the event that there shall occur a Change in Control (as defined
in Section 1406), then each Holder shall have the right, at such Holder's
option, to require the Company, subject to the provisions of Section 1203, to
purchase all or any designated part of such Holder's Securities on the date (the
"Repurchase Date") that is 45 days after the date the Company gives notice of
the Change in Control as contemplated in Section 1402(a) at a price (the
"Repurchase Price") equal to 100% of the principal amount thereof, together with
accrued and unpaid interest to (but not including) the Repurchase Date. Such
right to require the repurchase of Securities shall not continue after a
discharge of the Company from its obligations with respect to the Securities in
accordance with Article Four.
SECTION 1402. Notice; Method of Exercising Repurchase
Right.
(a) On or before the 30th day after a Change in Control, the
Company, or at the request of the Company, the Trustee (in the name and at the
expense of the Company), shall give notice of the occurrence of the Change in
Control and of the repurchase right set forth herein arising as a result thereof
by first-class mail, postage prepaid, to each Holder of the Securities at such
Holder's address appearing in the Security Register. The Company shall also
deliver a copy of such notice of a repurchase right to the Trustee.
Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right
must be exercised,
(3) the Repurchase Price, and
(4) the instructions a Holder must follow to
exercise its repurchase right.
No failure of the Company to give the foregoing notice shall limit
any Holder's right to exercise a repurchase right. The Trustee shall have no
affirmative
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obligation to determine if there shall have occurred a Change in Control.
(b) To exercise a repurchase right, a Holder shall deliver to the
Company (or an agent designated by the Company for such purpose in the notice
referred to in (a) above) and to the Trustee on or before the 5th day prior to
the Repurchase Date (i) written notice of the Holder's exercise of such right,
which notice shall set forth the name of the Holder, the principal amount of the
Security or Securities (or portion of a Security) to be repurchased, and a
statement that an election to exercise the repurchase right is being made
thereby, and (ii) the Security or Securities with respect to which the
repurchase right is being exercised, duly endorsed for transfer to the Company.
Such written notice shall be irrevocable. If the Repurchase Date falls between
any Regular Record Date and the corresponding succeeding Interest Payment Date,
Securities to be repurchased must be accompanied by payment from the Holder of
an amount equal to the interest thereon which the registered Holder thereof is
to receive on such Interest Payment Date.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall on the Repurchase Date pay or cause to
be paid in cash to the Holder thereof the Repurchase Price of the Security or
Securities as to which the repurchase right had been exercised.
SECTION 1403. Deposit of Repurchase Price.
On or prior to the Repurchase Date, the Company shall deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money sufficient to pay the Repurchase Price of the Securities which are to
be repaid on the Repurchase Date.
SECTION 1404. Securities Not Repurchased on
Repurchase Date.
If any Security surrendered for repurchase shall not be so paid on
the Repurchase Date, the principal of such Security shall, until paid, bear
interest from the Repurchase Date at a rate borne by such Security.
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SECTION 1405. Securities Repurchased in Part.
Any Security which is to be repurchased only in part shall be
surrendered at any office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Security so surrendered.
SECTION 1406. Certain Definitions.
For purposes of this Article:
The term "Beneficial Owner" shall be determined in accordance with
Rules 13d-3 and 13d-5 promulgated by the Commission under the Exchange Act, or
any successor provision thereto, except that a Person shall be deemed to have
"beneficial ownership" of all shares that such Person has the right to acquire,
whether such right is exercisable immediately or only after the passage of time.
A "Change in Control" shall be deemed to have occurred at such time
as (a) any Person, or any Persons acting together in a manner which would
constitute a "group" (a "Group") for purposes of Section 13(d) of the Exchange
Act, or any successor provision thereto, together with any Affiliates thereof,
(i) become the Beneficial Owners, directly or indirectly, of capital stock of
the Company, entitling such Person or Persons and its or their Affiliates to
exercise more than 50% of the total voting power of all classes of the Company's
capital stock entitled to vote generally in the election of directors or (ii)
shall succeed in having sufficient of its or their nominees who are not
supported by a majority of the then current Board of Directors of the Company
elected to the Board of Directors of the Company such that such nominees, when
added to any existing directors remaining on the Board of Directors of the
Company after such election who are Affiliates of or acting in concert with any
such Persons, shall constitute a majority of the Board of Directors of the
Company, (b) the Company shall be a party to any transaction pursuant to which
the Common Stock is converted into the right to
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receive other securities (other than common stock), cash and/or property (or the
Company, by dividend, tender or exchange offer or otherwise, distributes other
securities, cash and/or property to holders of Common Stock) and the value of
all such securities, cash and/or property distributed in such transaction and
any other transaction effected within the 12 months preceding consummation of
such transaction (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution) is more
than 50% of the average of the daily Closing Prices for the five consecutive
Trading Days ending on the Trading Day immediately preceding the date of such
transaction (or, if earlier, the Trading Day immediately preceding the "ex" date
(as defined in paragraph (7) of Section 1304) for such transaction) or (c) the
Company shall consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person other than a Subsidiary, or any other Person shall consolidate with or
merge into the Company (other than, in the case of this clause (c), pursuant to
any consolidation or merger where Persons who are stockholders of the Company
immediately prior thereto become the Beneficial Owners of shares of capital
stock of the surviving company entitling such Persons to exercise more than 50%
of the total voting power of all classes of such surviving company's capital
stock entitled to vote generally in the election of directors).
ARTICLE FIFTEEN
Defeasance and Covenant Defeasance
SECTION 1501. Company's Option to Effect Defeasance or
Covenant Defeasance.
The Company may at its option by Board Resolution, at any time,
elect to have either Section 1502 or Section 1503 applied to the Outstanding
Securities upon compliance with the conditions set forth below in this Article
Fifteen.
SECTION 1502. Defeasance and Discharge.
Upon the Company's exercise of the option provided in Section 1501
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities (other than
those specified below), and the provisions of Article Twelve hereof shall cease
to be effective, on the date the conditions set forth below are satisfied
(hereinafter, "defea-
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sance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Securities and to have satisfied all its other obligations under
such Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 1504 and
as more fully set forth in such Section, payments in respect of the principal
of, premium, if any and interest on such Securities when such payments are due,
(B) the Company's obligations with respect to such Securities under Sections
304, 305, 306, 1002, 1003, Article Thirteen and Article Fourteen, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D)
this Article Fifteen. Subject to compliance with this Article Fifteen, the
Company may exercise its option under this Section 1502 notwithstanding the
prior exercise of its option under Section 1503.
SECTION 1503. Covenant Defeasance.
Upon the Company's exercise of the option provided in Section 1501
applicable to this Section, (i) the Company shall be released from its
obligations under Section 1006 and Section 1007, (ii) the occurrence of an event
specified in Section 501(3) (with respect to either of Section 1006 or Section
1007) and 501(4) shall not be deemed to be an Event of Default and (iii) the
provisions of Article Twelve hereof shall cease to be effective on and after the
date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or Article, whether
directly or indirectly by reason of any reference elsewhere herein to any such
Section or Article or by reason of any reference in any such Section or Article
to any other provision herein or in any other document, but the remainder of
this Indenture and such Securities shall be unaffected thereby.
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SECTION 1504. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions to application of either
Section 1502 or Section 1503 to the then Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Fifteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which through
the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, in the written opinion of a nationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and
which shall be applied by the Trustee (or other qualifying trustee) to pay
and discharge, the principal of, premium, if any, and each instalment of
interest on the Securities on the Stated Maturity of such principal or
instalment of interest in accordance with the terms of this Indenture and
of such Securities. For this purpose, "U.S. Government Obligations" means
securities that are (x) direct obligations of the United States of America
for the payment of which its full faith and credit is pledged or (y)
obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of
which is unconditionally guaranteed as a full faith and credit obligation
by the United States of America, which, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include
a depository receipt issued by a bank (as defined in Section 3(a)(2) of
the Securities Act of 1933, as amended) as custodian with respect to any
such U.S. Government Obligation or a specific payment of principal of or
interest on any such U.S. Government Obligation held by such custodian for
the account of the holder of such depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from
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<PAGE>
any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(2) In the case of an election under Section 1502, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the date of this Indenture there
has been a change in the applicable Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred.
(3) In the case of an election under Section 1503, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities will not recognize gain or loss for
Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would have been the case if
such deposit and covenant defeasance had not occurred.
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that the Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(5) Such defeasance or covenant defeasance shall not cause the
Trustee to have a conflicting interest as defined in Section 608 and for
purposes of the Trust Indenture Act with respect to any securities of the
Company.
(6) At the time of such deposit: (A) no default in the payment of
all or a portion of principal of (or premium, if any) or interest on or
other obligations in respect of any Senior Indebtedness shall have
occurred and be continuing, and no event of default with respect to any
Senior Indebtedness shall have occurred and be continuing and shall have
resulted in such Senior Indebtedness becoming or being declared due and
payable
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<PAGE>
prior to the date on which it would otherwise have become due and payable
and (B) no other event with respect to any Senior Indebtedness shall have
occurred and be continuing permitting (after notice or the lapse of time,
or both) the holders of such Senior Indebtedness (or a trustee on behalf
of the holders thereof) to declare such Senior Indebtedness due and
payable prior to the date on which it would otherwise have become due and
payable, or, in the case of either Clause (A) or Clause (B) above, each
such default or event of default shall have been cured or waived or shall
have ceased to exist.
(7) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as subsections 501(5)
and (6) are concerned, at any time during the period ending on the 121st
day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period).
(8) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, any other agreement
or instrument to which the Company is a party or by which it is bound.
(9) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section
1502 or the covenant defeasance under Section 1503 (as the case may be)
have been complied with.
(10) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as
defined in the Investment Company Act of 1940, as amended, or such trust
shall be qualified under such act or exempt from regulation thereunder.
SECTION 1505. Deposited Money and U.S. Government
Obligations to be Held in Trust;
Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee -- collectively, for purposes of
this Section 1505, the "Trustee") pursuant to
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<PAGE>
Section 1504 in respect of the Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such 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 Holders of such Securities, of all sums due and to become due
thereon in respect of principal, premium, if any, and interest. Money so held in
trust shall not be subject to the provisions of Article Twelve.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1504 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Fifteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 1504 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent defeasance or covenant
defeasance.
SECTION 1506. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1502 or 1503 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article Fifteen until such time as the Trustee or Paying Agent
is permitted to apply all such money in accordance with Section 1502 or 1503;
provided, however, that if the Company makes any payment of principal of,
premium, if any, or interest on any Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
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<PAGE>
ARTICLE SIXTEEN
Immunity
SECTION 1601. Personal Immunity of Incorporators,
Stockholders, Directors and Officers.
No recourse for the payment of the principal of or interest on the
Securities, and no recourse under or upon any obligation, covenant or agreement
contained in this Indenture or in any indenture supplemental hereto, or in the
Securities, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, or against any past, present or future stockholder,
officer or director, as such, of the Company or any successor corporation,
either directly or through the Company or any successor corporation, under any
rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities. Each and every Holder of the Securities, by receiving and
holding the same, agrees to the provisions of this Section 1601 and waives and
releases any and all such recourse, claim and liability.
--------------------
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to
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<PAGE>
be an original, but all such counterparts shall together constitute but one and
the same instrument.
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.
SEACOR HOLDINGS, INC.
By___________________________
Attest:
__________________________
FIRST TRUST NATIONAL
ASSOCIATION
By___________________________
Attest:
___________________________
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<PAGE>
/STATE OF )
ss.:
COUNTY OF )
On the _____ day of __________, 19__, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
___________________________________________________ of
___________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that [he -- she] signed [his -- her] name thereto by like
authority.
------------------------------
STATE OF )
ss.:
COUNTY OF )
On the _____ day of __________, 19__, before me personally came
___________________________, to me known, who, being by me duly sworn, did
depose and say that [he -- she] is
___________________________________________________ of
___________________________, one of the corporations described in and which
executed the foregoing instrument; that [he -- she] knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that [he -- she] signed [his -- her] name thereto by like
authority.
------------------------------
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EXHIBIT 20
PRESS RELEASE
SEACOR HOLDINGS, INC. CALLS FOR REDEMPTION
OF 6% CONVERTIBLE NOTES
HOUSTON, TEXAS
June 6, 1996
FOR IMMEDIATE RELEASE - SEACOR Holdings, Inc. (NASDAQ:CKOR) announced
today that it notified the Trustee of its 6% Convertible Notes due
July 1, 2003 (the "6% Notes") of its election to call the 6% Notes for
redemption on July 12, 1996.
The 6% Notes are convertible into shares of the Company's common stock
at any time prior to July 1, 2003 at a conversion price of $25.625 per
share. If the entire $55,250,000 principal amount outstanding of the
6% Notes were converted, 2,156,076 shares of the Company's common
stock would be issued. After taking into account the approximately
1.3 million shares to be issued by the Company in connection with its
recently completed acquisition of McCall Enterprises, Inc. and
affiliated companies, the converted shares would represent
approximately 18.0% of the Company's outstanding common stock. The
closing price of the Company's common stock on June 6, 1996 was
$47.75.
SEACOR provides offshore marine transportation and environmental
services to the energy and maritime industries. The Company's two
primary lines of business are: (i) the operation of a diversified
fleet of marine vessels primarily dedicated to supporting offshore oil
and gas exploration and development in the US Gulf of Mexico, Mexico,
the North Sea and West Africa, and (ii) the provision of environmental
contracting services domestically and internationally, specializing in
the planning for and response to oil spills. SEACOR's environmental
services are provided primarily through National Response Corporation,
a wholly owned subsidiary.
For additional information, contact Randall Blank, Executive Vice
President, Chief Financial Officer, and Secretary of the Company at
(212) 307-6633.
NYFS11...:\93\73293\0004\91\RLS6106R.390
SEACOR HOLDINGS, INC.
11200 WESTHEIMER
SUITE 850
HOUSTON, TEXAS 77042
Notice of Election to Redeem all Outstanding 6.00%
Convertible Subordinated Notes due July 1, 2003
of SEACOR Holdings, Inc.
----------------------------------------------------
NOTICE IS HEREBY PROVIDED that, pursuant to the provisions
set forth in the form of 6.00% Convertible Subordinated Notes due July
1, 2003 (the "Notes") issued by SEACOR Holdings, Inc., a Delaware
corporation (the "Company"), under that certain Indenture dated as of
June 15, 1993, between the Company and First Trust National
Association, as trustee for the holders of the Notes (the "Trustee"),
and in accordance with Article Eleven of the Indenture, all
outstanding Notes (CUSIP Nos. 811904AA9 and U81190AA5) shall be
redeemed by the Company on July 12, 1996 (the "Redemption Date") at a
redemption price (the "Redemption Price") equal to 104.2% of the
principal amount thereof ($1,042.00 per each $1,000 principal amount
of the Notes), together with all accrued and unpaid interest thereon
to (but not including) the Redemption Date.
Payment of the Redemption Price shall be made only upon
presentation and surrender of the Notes by the registered holder
thereof, to First Trust National Association, 180 East Fifth Street,
St. Paul, Minnesota 55101, Attention: Corporate Trust Department (the
"Trustee").
The Redemption Price for the Notes will be due and payable
on the Redemption Date and shall be paid as specified above to the
registered holders of Notes upon presentation and surrender of such
Notes to the Trustee. On and after the Redemption Date (unless the
Company shall have defaulted in the payment of the Redemption Price)
all interest on the Notes called for redemption and redeemed as
described herein shall cease to accrue and the only remaining right of
holders of the Notes will be to receive payment of the Redemption
Price.
The Notes may be converted into shares of common stock, par
value $.01 per share, of the Company ("Common Stock") as provided in
Article 13 of the Indenture and the Notes. The price at which shares
of Common Stock shall be delivered upon conversion is $25.625 per
share of Common Stock. The right of the holders to convert the Notes
into shares of Common Stock shall expire at the close of business on
July 12, 1996. Shares of Common Stock will only be issued upon
presentation and surrender of the Notes to be converted by the
registered holder
<PAGE>
thereof to the Trustee at the address specified in the second
paragraph above, accompanied by a properly completed, dated and signed
conversion notice in the form set forth in Section 205 of the
Indenture.
The method of delivery, presentation and surrender of Notes
is at the option and risk of the holder thereof. If delivered by
mail, use of registered or certified mail, return receipt requested,
and properly insured, is recommended.
SEACOR HOLDINGS, INC.
By: /s/ Randall Blank
------------------------
Randall Blank, Executive
Vice President and Chief
Financial Officer
Dated: June 6, 1996
/Enclosures
NYFS11...:\93\73293\0004\2114\NOT6056T.550
