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
Commission File Number 1-10308
May 10, 2001 (May 4, 2001)
Date of Report (Date Of Earliest Event Reported)
Cendant Corporation
(Exact name of Registrant as specified in its charter)
Delaware 06-0918165
(State or Other Jurisdiction of (IRS Employer
Incorporation or Organization) Identification No.)
9 West 57th Street, New York, New York 10019
(Address of Principal Executive Office) (Zip Code)
(212) 413-1800
(Registrant's telephone number, including area code)
None
(Former name, former address and former fiscal year, if applicable)
Item 5. Other Events.
On May 4, 2001, we completed the sale of $800,000,000
aggregate principal amount at maturity of Zero-Coupon Convertible
Debentures due 2021 (the "Debentures") in a private offering. A copy of the
press release regarding the offering is attached as Exhibit 99.1 and is
incorporated herein by reference in its entirety. On May 10, 2001, we
completed the sale of an additional $200,000,000 aggregate principal amount
at maturity of the Debentures to the Initial Purchaser pursuant to an
option granted by us to the Initial Purchaser.
In connection with this transaction, we entered into an
Indenture, dated as of May 4, 2001 (the "Indenture"), with The Bank of New
York, as trustee, under which the Debentures were issued. A copy of the
Indenture is attached as Exhibit 4.1 and is incorporated herein by
reference in its entirety.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits
Exhibit
No. Description
4.1 Indenture, dated as of May 4, 2001, between Cendant
Corporation and The Bank of New York, as trustee.
99.1 Press Release issued by Cendant Corporation dated May 4, 2001.
SIGNATURE
Pursuant to the requirements of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunder duly authorized.
CENDANT CORPORATION
By: /s/ Eric J. Bock
------------------------------
Eric J. Bock
Senior Vice President, Law
and Corporate Secretary
Date: May 10, 2001
CENDANT CORPORATION
CURRENT REPORT ON FORM 8-K
Report Dated May 10, 2001 (May 4, 2001)
EXHIBIT INDEX
Exhibit
No. Description
4.1 Indenture, dated as of May 4, 2001, between Cendant Corporation
and The Bank of New York, as trustee.
99.1 Press Release issued by Cendant Corporation dated May 4, 2001.
EXHIBIT 4.1
Cendant Corporation
Zero-Coupon Convertible Debentures due 2021
----------------------------------------------------------
INDENTURE
Dated as of May 4, 2001
----------------------------------------------------------
The Bank of New York
TRUSTEE
----------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions................................................................................1
Section 1.2 Other Definitions..........................................................................4
Section 1.3 Incorporation by Reference of Trust Indenture Act..........................................5
Section 1.4 Rules of Construction......................................................................6
Section 1.5 Acts of Holders............................................................................6
ARTICLE II THE SECURITIES
Section 2.1 Form and Dating............................................................................7
Section 2.2 Execution and Authentication...............................................................8
Section 2.3 Registrar, Paying Agent and Conversion Agent...............................................9
Section 2.4 Paying Agent to Hold Money and Securities in Trust........................................10
Section 2.5 Securityholder Lists......................................................................10
Section 2.6 Transfer and Exchange.....................................................................10
Section 2.7 Replacement Securities....................................................................12
Section 2.8 Outstanding Securities; Determinations of Holders' Action.................................12
Section 2.9 Temporary Securities......................................................................13
Section 2.10 Cancellation.............................................................................13
Section 2.11 Persons Deemed Owners....................................................................14
Section 2.12 Global Securities........................................................................14
Section 2.13 CUSIP Numbers............................................................................19
Section 2.14 Ranking..................................................................................19
ARTICLE III REDEMPTION AND PURCHASES
Section 3.1 Company's Right to Redeem; Notices to Trustee.............................................19
Section 3.2 Selection of Securities to Be Redeemed....................................................19
Section 3.3 Notice of Redemption......................................................................20
Section 3.4 Effect of Notice of Redemption............................................................21
Section 3.5 Deposit of Redemption Price...............................................................21
Section 3.6 Securities Redeemed in Part...............................................................21
Section 3.7 Purchase of Securities by the Company at Option of the Holder.............................21
Section 3.8 Purchase of Securities at Option of the Holder upon Change in Control.....................28
Section 3.9 Effect of Purchase Notice or Change in Control Purchase Notice............................31
Section 3.10 Deposit of Purchase Price or Change in Control Purchase Price............................32
Section 3.11 Securities Purchased in Part.............................................................32
Section 3.12 Covenant to Comply With Securities Laws Upon Purchase of Securities......................32
Section 3.13 Repayment to the Company.................................................................33
ARTICLE IV COVENANTS
Section 4.1 Payment of Securities.....................................................................33
Section 4.2 SEC and Other Reports.....................................................................33
Section 4.3 Compliance Certificate....................................................................34
Section 4.4 Further Instruments and Acts..............................................................34
Section 4.5 Maintenance of Office or Agency...........................................................34
Section 4.6 Delivery of Certain Information...........................................................35
Section 4.7 Calculation of Original Issue Discount....................................................35
ARTICLE V SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets.................................................35
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.1 Events of Default.........................................................................36
Section 6.2 Acceleration..............................................................................38
Section 6.3 Other Remedies............................................................................38
Section 6.4 Waiver of Past Defaults...................................................................38
Section 6.5 Control by Majority.......................................................................39
Section 6.6 Limitation on Suits.......................................................................39
Section 6.7 Rights of Holders to Receive Payment......................................................39
Section 6.8 Collection Suit by Trustee................................................................40
Section 6.9 Trustee May File Proofs of Claim..........................................................40
Section 6.10 Priorities...............................................................................40
Section 6.11 Undertaking for Costs....................................................................41
Section 6.12 Waiver of Stay, Extension or Usury Laws..................................................41
ARTICLE VII TRUSTEE
Section 7.1 Duties of Trustee.........................................................................41
Section 7.2 Rights of Trustee.........................................................................43
Section 7.3 Individual Rights of Trustee..............................................................44
Section 7.4 Trustee's Disclaimer......................................................................44
Section 7.5 Notice of Defaults........................................................................44
Section 7.6 Reports by Trustee to Holders.............................................................45
Section 7.7 Compensation and Indemnity................................................................45
Section 7.8 Replacement of Trustee....................................................................46
Section 7.9 Successor Trustee by Merger...............................................................46
Section 7.10 Eligibility; Disqualification............................................................47
Section 7.11 Preferential Collection of Claims Against Company........................................47
ARTICLE VIII DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities......................................................47
Section 8.2 Repayment to the Company..................................................................47
ARTICLE IX AMENDMENTS
Section 9.1 Without Consent of Holders................................................................48
Section 9.2 With Consent of Holders...................................................................48
Section 9.3 Compliance with Trust Indenture Act.......................................................49
Section 9.4 Revocation and Effect of Consents, Waivers and Actions....................................49
Section 9.5 Notation on or Exchange of Securities.....................................................49
Section 9.6 Trustee to Sign Supplemental Indentures...................................................50
Section 9.7 Effect of Supplemental Indentures.........................................................50
ARTICLE X CONVERSIONS
Section 10.1 Conversion Privilege.....................................................................50
Section 10.2 Conversion Procedure.....................................................................51
Section 10.3 Fractional Shares........................................................................51
Section 10.4 Taxes on Conversion......................................................................52
Section 10.5 Company to Provide Stock.................................................................52
Section 10.6 Adjustment for Change in Capital Stock...................................................52
Section 10.7 Adjustment for Rights Issue..............................................................53
Section 10.8 Adjustment for Other Distributions.......................................................55
Section 10.9 When Adjustment May Be Deferred..........................................................57
Section 10.10 When No Adjustment Required.............................................................57
Section 10.11 Notice of Adjustment....................................................................57
Section 10.12 Voluntary Increase......................................................................58
Section 10.13 Notice of Certain Transactions..........................................................58
Section 10.14 Reorganization of Company; Special Distributions........................................58
Section 10.15 Company Determination Final.............................................................59
Section 10.16 Trustee's Adjustment Disclaimer.........................................................59
Section 10.17 Simultaneous Adjustments................................................................59
Section 10.18 Successive Adjustments..................................................................60
ARTICLE XI MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls.............................................................60
Section 11.2 Notices..................................................................................60
Section 11.3 Communication by Holders with Other Holders..............................................61
Section 11.4 Certificate and Opinion as to Conditions Precedent.......................................61
Section 11.5 Statements Required in Certificate or Opinion............................................61
Section 11.6 Separability Clause......................................................................62
Section 11.7 Rules by Trustee, Paying Agent, Conversion Agent and Registrar..........................62
Section 11.8 Legal Holidays...........................................................................62
Section 11.9 GOVERNING LAW............................................................................62
Section 11.10 No Recourse Against Others..............................................................62
Section 11.11 Successors..............................................................................62
Section 11.12 Multiple Originals......................................................................62
EXHIBIT A-1 Form of Global Security
EXHIBIT A-2 Form of Certificated Security
EXHIBIT B-1 Transfer Certificate
INDENTURE dated as of May 4, 2001 between CENDANT
CORPORATION, a Delaware corporation ("Company"), and THE BANK OF NEW YORK,
a New York banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's
Zero-Coupon Convertible Debentures due 2021:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"144A Global Security" means a permanent Global Security
in the form of the Security attached hereto as Exhibit A-1, and that is
deposited with and registered in the name of the Depositary, representing
Securities sold in reliance on Rule 144A under the Securities Act.
"Affiliate" of any specified person means any other
person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified person. For the purposes of
this definition, "control" when used with respect to any specified person
means the power to direct or cause the direction of 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.
"Applicable Procedures" means, with respect to any
transfer or transaction involving a Global Security or beneficial interest
therein, the rules and procedures of the Depositary for such Security, in
each case to the extent applicable to such transaction and as in effect
from time to time.
"Board of Directors" means either the board of directors
of the Company or any duly authorized committee of such board.
"Business Day" means, with respect to any Security, a day
that in the City of New York, is not a day on which banking institutions
are authorized by law or regulation to close.
"Capital Stock" for any corporation means any and all
shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) stock issued by
that corporation.
"CD Common Stock" shall mean the shares of CD common
stock, $0.01 par value per share, of the Company existing on the date of
this Indenture or any other shares of Capital Stock of the Company into
which such CD common stock shall be reclassified or changed.
"Certificated Securities" means Securities that are in
the form of the Securities attached hereto as Exhibit A-2.
"Company" means the party named as the "Company" in the
first paragraph of this Indenture until a successor replaces it pursuant to
the applicable provisions of this Indenture and, thereafter, shall mean
such successor. The foregoing sentence shall likewise apply to any
subsequent such successor or successors.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by any two Officers.
"Corporate Trust Office" means the principal office of
the Trustee at which at any time its corporate trust business shall be
administered, which office at the date hereof is located at 101 Barclay
Street, Floor 21W, New York, New York 10286, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as a
successor Trustee may designate from time to time by notice to the Holders
and the Company).
"Default" means any event which is, or after notice or
passage of time or both would be, an Event of Default.
"Global Securities" means Securities that are in the form
of the Securities attached hereto as Exhibit A-1, and that are issued to a
Depositary, and to the extent that such Securities are required to bear the
Legend required by Section 2.6, such Securities will be in the form of a
144A Global Security.
"Holder" or "Securityholder" means a person in whose name
a Security is registered on the Registrar's books.
"Indebtedness" means, without duplication, the principal
or face amount of (i) all obligations for borrowed money, (ii) all
obligations evidenced by debentures, notes or other similar instruments,
(iii) all obligations in respect of letters of credit or bankers
acceptances or similar instruments (or reimbursement obligations with
respect thereto), (iv) all obligations to pay the deferred purchase price
of property or services, except trade accounts payable arising in the
ordinary course of business, (v) all obligations as lessee which are
capitalized in accordance with generally accepted accounting principles,
and (vi) all Indebtedness of others guaranteed by the Company or any of its
Subsidiaries or for which the Company or any of its Subsidiaries is legally
responsible or liable (whether by agreement to purchase indebtedness of, or
to supply funds or to invest in, others).
"Indenture" means this Indenture, as amended or
supplemented from time to time in accordance with the terms hereof,
including the provisions of the TIA that are deemed to be a part hereof.
"Issue Date" of any Security means the date on which the
Security was originally issued or deemed issued as set forth on the face of
the Security.
"Non-Recourse Indebtedness" means Indebtedness upon the
enforcement of which recourse may be had by the holder(s) thereof only to
identified assets of the Company and not to the Company personally.
"NYSE" means The New York Stock Exchange.
"Officer" means the Chairman of the Board, the Vice
Chairman, the Chief Executive Officer, the President, any Executive Vice
President, any Senior Vice President, any Vice President, the Treasurer or
the Secretary or any Assistant Treasurer or Assistant Secretary of the
Company.
"Officers' Certificate" means a written certificate
containing the information specified in Sections 11.4 and 11.5, signed in
the name of the Company by any two Officers, and delivered to the Trustee.
An Officers' Certificate given pursuant to Section 4.3 shall be signed by
an authorized financial or accounting Officer of the Company but need not
contain the information specified in Sections 11.4 and 11.5.
"Opinion of Counsel" means a written opinion containing
the information specified in Sections 11.4 and 11.5, from legal counsel who
is acceptable to the Trustee. The counsel may be an employee of, or counsel
to, the Company or the Trustee.
"person" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or government or any agency or
political subdivision thereof.
"Redemption Date" or "redemption date" shall mean the
date specified in a notice of redemption on which the Securities may be
redeemed in accordance with the terms of the Securities and this Indenture.
"Redemption Price" or "redemption price" shall have the
meaning set forth in Paragraph 5 of the Securities.
"Responsible Officer" shall mean, when used with respect
to the Trustee, any officer within the corporate trust department of the
Trustee, including any vice president, assistant vice president, assistant
secretary, assistant treasurer, trust officer or any other officer of the
Trustee who customarily performs functions similar to those performed by
the persons who at the time shall be such officers, respectively, or to
whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Restricted Security" means a Security required to bear
the restrictive legend set forth in the form of Security set forth in
Exhibits A-1 and A-2 of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or
any successor provision), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's Zero-Coupon
Convertible Debentures due May 4, 2021, as amended or supplemented from
time to time, issued under this Indenture.
"Securityholder" or "Holder" means a person in whose name
a Security is registered on the Registrar's books.
"Stated Maturity", when used with respect to any
Security, means May 4, 2021.
"Subsidiary" means any person of which at least a
majority of the outstanding Voting Stock shall at the time directly or
indirectly be owned or controlled by the Company or by one or more
Subsidiaries or by the Company and one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect
on the date of this Indenture, provided, however, that in the event the TIA
is amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"trading day" means a day during which trading in
securities generally occurs on the NYSE or, if the CD Common Stock is not
listed on the NYSE, on the principal other national or regional securities
exchange on which the CD Common Stock then is listed or, if the CD Common
Stock is not listed on a national or regional securities exchange, on the
National Association of Securities Dealers Automated Quotation System or,
if the CD Common Stock is not quoted on the National Association of
Securities Dealers Automated Quotation System, on the principal other
market on which the CD Common Stock is then traded.
"Trustee" means the party named as the "Trustee" in the
first paragraph of this Indenture until a successor replaces it pursuant to
the applicable provisions of this Indenture and, thereafter, shall mean
such successor. The foregoing sentence shall likewise apply to any
subsequent such successor or successors.
"Voting Stock" of a person means Capital Stock of such
person of the class or classes pursuant to which the holders thereof have
the general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such person
(irrespective of whether or not at the time Capital Stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency).
Section 1.2 Other Definitions.
Term Section: Defined in:
"Accreted Conversion Price"................................... Exhibit A-1
"Accreted Value".............................................. Exhibit A-1
"Administrative Action"....................................... Exhibit A-1
"Agent Members"............................................... 2.12(e)
"Associate"................................................... 3.8(a)
"Average Sale Price".......................................... 10.7
"beneficial owner"............................................ 3.8(a)
"cash"........................................................ 3.7(b)
"Change in Control"........................................... 3.8(a)
"Change in Control Purchase Date"............................. 3.8(a)
"Change in Control Purchase Notice"........................... 3.8(a)
"Change in Control Purchase Price"............................ 3.8(a)
"Company Notice".............................................. 3.7(e)
"Company Notice Date"......................................... 3.7(c)
"Conversion Agent"............................................ 2.3
"Conversion Date"............................................. 10.2
"Conversion Rate"............................................. 10.1
"Depositary".................................................. 2.1(a)
"Event of Default"............................................ 6.1
"Exchange Act"................................................ 3.7(d)
"Exchange Party".............................................. 10.2
"Ex-Dividend Time"............................................ 10.1
"Extraordinary Cash Dividend"................................. 10.8
"Institutional Accredited Investors".......................... 2.1(b)
"Interest Adjustment Date".................................... Exhibit A-1
"Legal Holiday"............................................... 11.8
"Legend"...................................................... 2.6(f)
"Market Price"................................................ 3.7(d)
"Notice of Default"........................................... 6.1
"Option Exercise Date"........................................ Exhibit A-1
"Paying Agent"................................................ 2.3
"Purchase Date"............................................... 3.7(a)
"Purchase Notice"............................................. 3.7(a)
"Purchase Price".............................................. 3.7(a)
"QIB"......................................................... 2.1(a)
"Registrar"................................................... 2.3
"Rule 144A Information"....................................... 4.6
"Sale Price".................................................. 3.7(d)
"Securities Act".............................................. 3.7(d)
"Tax Event"................................................... Exhibit A-1
"Time of Determination"....................................... 10.1
"Upward Interest Adjustment".................................. Exhibit A-1
Section 1.3 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to another statute or defined
by SEC rule have the meanings assigned to them by such definitions.
Section 1.4 Rules of Construction. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words
in the plural include the singular.
Section 1.5 Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided
by this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed
by such Holders in person or by 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 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 conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(b) 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 such officer
the execution thereof. Where such execution is by a signer acting in a
capacity other than such signer's individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer's
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.
(c) The ownership of Securities shall be proved by the
register for the Securities.
(d) 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.
(e) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other
Act, the Company may, at its option, by or pursuant to a Board Resolution,
fix in advance a record date for the determination of Holders entitled to
give such request, demand, authorization, direction, notice, consent,
waiver or other Act, but the Company shall have no obligation to do so. If
such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or
after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes
of determining whether Holders of the requisite proportion of outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall
become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating. The Securities and the
Trustee's certificate of authentication shall be substantially in the form
of Exhibits A-1 and A-2, which are a part of this Indenture. The Securities
may have notations, legends or endorsements required by law, stock exchange
rule or usage (provided that any such notation, legend or endorsement
required by usage is in a form acceptable to the Company). The Company
shall provide any such notations, legends or endorsements to the Trustee in
writing. Each Security shall be dated the date of its authentication.
(a) 144A Global Securities. Securities offered and sold
within the United States to qualified institutional buyers as defined in
Rule 144A ("QIBs") in reliance on Rule 144A shall be issued, initially in
the form of a 144A Global Security, which shall be deposited with the
Trustee at its Corporate Trust Office, as custodian for the Depositary (as
defined below) and registered in the name of The Depository Trust Company
("DTC") or the nominee thereof (DTC, or any successor thereto, and any such
nominee being hereinafter referred to as the "Depositary"), duly executed
by the Company and authenticated by the Trustee as hereinafter provided.
The aggregate principal amount of the 144A Global Securities may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary as hereinafter provided.
(b) Global Securities in General. Each Global Security
shall represent such of the outstanding Securities as shall be specified
therein and each shall provide that it shall represent the aggregate amount
of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges,
redemptions and conversions.
Any adjustment of the aggregate principal amount of a
Global Security to reflect the amount of any increase or decrease in the
amount of outstanding Securities represented thereby shall be made by the
Trustee in accordance with instructions given by the Holder thereof as
required by Section 2.12 hereof and shall be made on the records of the
Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.1(c) shall
apply only to Global Securities deposited with or on behalf of the
Depositary.
The Company shall execute and the Trustee shall, in
accordance with this Section 2.1(c), authenticate and deliver initially one
or more Global Securities that (a) shall be registered in the name of the
Depositary, (b) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instructions and (c) shall bear legends
substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS TO NOMINEES OF THE
DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE
IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE
TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(d) Certificated Securities. Securities not issued as
interests in the Global Securities will be issued in certificated form
substantially in the form of Exhibit A-2 attached hereto.
Section 2.2 Execution and Authentication. The Securities
shall be executed on behalf of the Company by any Officer. The signature of
the Officer on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of the execution of the Securities
Officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices
at the date of authentication of such Securities.
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 duly executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder.
The Trustee shall authenticate and deliver the Securities
for original issue in an aggregate principal amount of up to $1,000,000,000
upon one or more Company Orders without any further action by the Company.
The aggregate principal amount of the Securities due at the Stated Maturity
thereof outstanding at any time may not exceed the amount set forth in the
foregoing sentence, except as provided in Section 2.7 and upon the
occurrence of an Upward Interest Adjustment or a Tax Event as contemplated
in the form of Security attached hereto as Exhibit A-1.
The Securities shall be issued only in registered form
without coupons and only in denominations of $1,000 of principal amount and
any integral multiple thereof.
Section 2.3 Registrar, Paying Agent and Conversion Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an
office or agency where Securities may be presented for purchase or payment
("Paying Agent") and an office or agency where Securities may be presented
for conversion ("Conversion Agent"). The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may have one
or more co-registrars, one or more additional paying agents and one or more
additional conversion agents. The term Paying Agent includes any additional
paying agent, including any named pursuant to Section 4.5. The term
Conversion Agent includes any additional conversion agent, including any
named pursuant to Section 4.5.
The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent, Conversion Agent or
co-registrar (other than the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall
notify the Trustee of the name and address of any such agent. If the
Company fails to maintain a Registrar, Paying Agent or Conversion Agent,
the Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.7. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar,
Conversion Agent and Paying Agent in connection with the Securities.
Section 2.4 Paying Agent to Hold Money and Securities in
Trust. Except as otherwise provided herein, on or prior to each due date of
payments in respect of any Security, the Company shall deposit with the
Paying Agent a sum of money (in immediately available funds if deposited on
the due date) or shares of CD Common Stock sufficient to make such payments
when so becoming due. The Company shall require each Paying Agent (other
than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money and
shares of CD Common Stock held by the Paying Agent for the making of
payments in respect of the Securities and shall notify the Trustee of any
default by the Company in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and shares
of CD Common Stock so held in trust. If the Company, a Subsidiary or an
Affiliate of either of them acts as Paying Agent, it shall segregate the
money and shares of CD Common Stock held by it as Paying Agent and hold it
as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money and shares of CD Common Stock held by it to the
Trustee and to account for any funds and CD Common Stock disbursed by it.
Upon doing so, the Paying Agent shall have no further liability for the
money or shares of CD Common Stock.
Section 2.5 Securityholder Lists. The Trustee shall
preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Securityholders. If the
Trustee is not the Registrar, the Company shall cause to be furnished to
the Trustee at least semiannually on May 1 and November 1 a listing of
Securityholders dated within 15 days of the date on which the list is
furnished and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require
of the names and addresses of Securityholders.
Section 2.6 Transfer and Exchange. (a) Subject to Section
2.12 hereof, (a) upon surrender for registration of transfer of any
Security, together with a written instrument of transfer satisfactory to
the Registrar duly executed by the Securityholder or such Securityholder's
attorney duly authorized in writing, at the office or agency of the Company
designated as Registrar or co-registrar pursuant to Section 2.3, 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 denomination or denominations, of a like
aggregate principal amount (or Accreted Value, if an Upward Interest
Adjustment has occurred as contemplated in the form of Security attached as
Exhibit A-1 hereto). The Company shall not charge a service charge for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the transfer or exchange of
the Securities from the Securityholder requesting such transfer or
exchange.
At the option of the Holder, Securities may be exchanged
for other Securities of any authorized denomination or denominations, of a
like aggregate principal amount (or Accreted Value, if an Upward Interest
Adjustment has occurred as contemplated in the form of Security attached as
Exhibit A-1 hereto), upon surrender of the Securities to be exchanged,
together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder's
attorney duly authorized in writing, at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
The Company shall not be required to make, and the
Registrar need not register, transfers or exchanges of Securities selected
for redemption (except, in the case of Securities to be redeemed in part,
the portion thereof not to be redeemed) or any Securities in respect of
which a Purchase Notice or Change in Control Purchase Notice has been given
and not withdrawn by the Holder thereof in accordance with the terms of
this Indenture (except, in the case of Securities to be purchased in part,
the portion thereof not to be purchased) or any Securities for a period of
15 days before the mailing of a notice of redemption of Securities to be
redeemed.
(b) Notwithstanding any provision to the contrary herein,
so long as a Global Security remains outstanding and is held by or on
behalf of the Depositary, transfers of a Global Security, in whole or in
part, shall be made only in accordance with Section 2.12 and this Section
2.6(b). Transfers of a Global Security shall be limited to transfers of
such Global Security in whole or in part, to the Depositary, to nominees of
the Depositary or to a successor of the Depositary or such successor's
nominee.
(c) Successive registrations and registrations of
transfers and exchanges as aforesaid may be made from time to time as
desired, and each such registration shall be noted on the register for the
Securities.
(d) Any Registrar appointed pursuant to Section 2.3
hereof shall provide to the Trustee such information as the Trustee may
reasonably require in connection with the delivery by such Registrar of
Securities upon transfer or exchange of Securities.
(e) No Registrar shall be required to make registrations
of transfer or exchange of Securities during any periods designated in the
text of the Securities or in this Indenture as periods during which such
registration of transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange
or replacement of Securities subject to restrictions on transfer and
bearing the legends set forth on the forms of Security attached hereto as
Exhibits A-1 and A-2 setting forth such restrictions (collectively, the
"Legend"), or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be
removed, as the case may be, unless there is delivered to the Company and
the Registrar such satisfactory evidence, which shall include an Opinion of
Counsel, as may be reasonably required by the Company and the Registrar,
that neither the Legend nor the restrictions on transfer set forth therein
are required to ensure that transfers thereof comply with the provisions of
Rule 144A or Rule 144 under the Securities Act or that such Securities are
not "restricted" within the meaning of Rule 144 under the Securities Act.
Upon (i) provision of such satisfactory evidence, or (ii) notification by
the Company to the Trustee and Registrar of the sale of such Security
pursuant to a registration statement that is effective at the time of such
sale, the Trustee, at the written direction of the Company, shall
authenticate and deliver a Security that does not bear the Legend. If the
Legend is removed from the face of a Security and the Security is
subsequently held by the Company or an Affiliate of the Company, the Legend
shall be reinstated.
Section 2.7 Replacement Securities. If (a) any mutilated
Security is surrendered to the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of
any Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that
such Security has been acquired by a bona fide purchaser, the Company shall
execute and upon its written request the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and
principal amount, bearing a certificate number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, or is about to
be purchased by the Company pursuant to Article 3 hereof, the Company in
its discretion may, instead of issuing a new Security, pay or purchase such
Security, as the case may be.
Upon the issuance of any new Securities under this
Section 2.7, 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 pursuant to this Section 2.7 in
lieu of any mutilated, 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 benefits of this Indenture equally
and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section 2.7 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 2.8 Outstanding Securities; Determinations of
Holders' Action. Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those paid
pursuant to Section 2.7, those delivered to it for cancellation and those
described in this Section 2.8 as not outstanding. A Security does not cease
to be outstanding because the Company or an Affiliate thereof holds the
Security; provided, however, that in determining whether the Holders of the
requisite principal amount of Securities have given or concurred in any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be
so owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any
such determination (including, without limitation, determinations pursuant
to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.7, it
ceases to be outstanding unless the Trustee receives proof satisfactory to
it that the replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this
Indenture, on a Redemption Date, or on the Business Day following a
Purchase Date or a Change in Control Purchase Date, or on Stated Maturity,
money or securities, if permitted hereunder, sufficient to pay Securities
payable on that date, then immediately after such Redemption Date, Purchase
Date, Change in Control Purchase Date or Stated Maturity, as the case may
be, such Securities shall cease to be outstanding and interest, if any, on
such Securities shall cease to accrue; provided, that if such Securities
are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has
been made.
If a Security is converted in accordance with Article 10,
then from and after the time of conversion on the Conversion Date, such
Security shall cease to be outstanding and interest, if any, shall cease to
accrue on such Security.
Section 2.9 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 conclusively 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 the office or agency of the Company designated for
such purpose pursuant to Section 2.3, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
Section 2.10 Cancellation. All Securities surrendered for
payment, purchase by the Company pursuant to Article 3, conversion,
redemption or registration of transfer or exchange 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. The Company may not issue new Securities to replace Securities
it has paid or delivered to the Trustee for cancellation or that any Holder
has converted pursuant to Article 10. 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 by the Trustee in
accordance with the Trustee's customary procedure.
Section 2.11 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 the Security or the
payment of any Redemption Price, Purchase Price or Change in Control
Purchase Price in respect thereof, and interest thereon, for the purpose of
conversion 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 2.12 Global Securities. (a) Notwithstanding any
other provisions of this Indenture or the Securities, (A) transfers of a
Global Security, in whole or in part, shall be made only in accordance with
Section 2.6 and Section 2.12(a)(i), (B) transfers of a beneficial interest
in a Global Security for a Certificated Security shall comply with Section
2.6 and Section 2.12(a)(ii) below, and (C) transfers of a Certificated
Security shall comply with Section 2.6 and Sections 2.12(a)(iii) and (iv)
below.
(i) Transfer of Global Security. A Global Security may
not be transferred, in whole or in part, to any person other than
the Depositary or a nominee or any successor 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 2.12(a)(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 2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in
a Global Security for a Certificated Security. A beneficial
interest in a Global Security may not be exchanged for a
Certificated Security except upon satisfaction of the requirements
set forth below. Upon receipt by the Trustee of a transfer of a
beneficial interest in a Global Security in accordance with
Applicable Procedures for a Certificated Security in the form
satisfactory to the Trustee, together with:
(A) so long as the Securities are Restricted Securities,
certification in the form set forth in Exhibit B-1;
(B) written instructions to the Trustee to make, or
direct the Registrar to make, an adjustment on its books
and records with respect to such Global Security to
reflect a decrease in the aggregate principal amount or
Accreted Value of the Securities represented by the
Global Security, such instructions to contain information
regarding the Depositary account to be credited with such
decrease; and
(C) if the Company so requests, an opinion of counsel or
other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to
cause, in accordance with the standing instructions and
procedures existing between the Depositary and the
Registrar, the aggregate principal amount or Accreted
Value of the Securities represented by the Global
Security to be decreased by the aggregate principal
amount or Accreted Value of the Certificated Security to
be issued, shall issue such Certificated Security and
shall debit or cause to be debited to the account of the
person specified in such instructions a beneficial
interest in the Global Security equal to the principal
amount or Accreted Value of the Certificated Security so
issued.
(iii) Transfer and Exchange of Certificated Securities.
When Certificated Securities are presented to the Registrar with a
request:
(y) to register the transfer of such
Certificated Securities; or
(z) to exchange such Certificated Securities
for an equal principal amount or Accreted Value of
Certificated Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested
if its reasonable requirements for such transaction are met; provided,
however, that the Certificated Securities surrendered for transfer or
exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably
satisfactory to the Company and the Registrar, duly
executed by the Holder thereof or his attorney duly
authorized in writing; and
(2) so long as such Securities are Restricted
Securities, such Securities are being transferred or
exchanged pursuant to an effective registration
statement under the Securities Act or pursuant to
clause (A), (B) or (C) below, and are accompanied by
the following additional information and documents,
as applicable:
(A) if such Certificated Securities are being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect; or
(B) if such Certificated Securities are being
transferred to the Company, a certification to that
effect; or
(C) if such Certificated Securities are being
transferred pursuant to an exemption from
registration, (i) a certification to that effect (in
the form set forth in Exhibit B-1, if applicable)
and (ii) if the Company so requests, an opinion of
counsel or other evidence reasonably satisfactory to
it as to the compliance with the restrictions set
forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Security
for a Beneficial Interest in a Global Security. A Certificated
Security may not be exchanged for a beneficial interest in a
Global Security except upon satisfaction of the requirements set
forth below.
Upon receipt by the Trustee of a Certificated Security,
duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Trustee, together with:
(I) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit B-1, that
such Certificated Security is being transferred to a QIB
in accordance with Rule 144A; and
(II) written instructions directing the Trustee to make,
or to direct the Registrar to make, an adjustment on its
books and records with respect to such Global Security to
reflect an increase in the aggregate principal amount or
Accreted Value of the Securities represented by the
Global Security, such instructions to contain information
regarding the Depositary account to be credited with such
increase, then the Trustee shall cancel such Certificated
Security and cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the
aggregate principal amount or Accreted Value of
Securities represented by the Global Security to be
increased by the aggregate principal amount or Accreted
Value of the Certificated Security to be exchanged, and
shall credit or cause to be credited to the account of
the person specified in such instructions a beneficial
interest in the Global Security equal to the principal
amount or Accreted Value of the Certificated Security so
cancelled. If no Global Securities are then outstanding,
the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the
form of an Officers' Certificate, a new Global Security
in the appropriate principal amount or Accreted Value.
(b) Subject to the succeeding paragraph (c), every
Security shall be subject to the restrictions on transfer provided in the
Legend including the delivery of an opinion of counsel, if so provided.
Whenever any Restricted 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
certificate in substantially the form set forth in Exhibit B-1, dated the
date of such surrender and signed by the Holder of such Security, as to
compliance with such restrictions on transfer. The Registrar shall not be
required to accept for such registration of transfer or exchange any
Security not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend 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) or, if earlier,
upon the expiration of the holding period applicable to sales thereof under
Rule 144(k) under the Securities Act (or any successor provision). Any
Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender
of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (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.
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.
(d) As used in the preceding two paragraphs of this
Section 2.12, the term "transfer" encompasses any sale, pledge, transfer,
loan, hypothecation, or other disposition of any Security.
(e) 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, except as provided in
Section 2.12(a)(ii), 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
Depositary or one or more nominees thereof, provided
that a Global Security may be exchanged for
Securities registered in the names of any person
designated by the Depositary in the event that (i)
the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for
such Global Security or such Depositary has ceased
to be a "clearing agency" registered under the
Exchange Act, and a successor Depositary is not
appointed by the Company within 90 days or (ii) an
Event of Default has occurred and is continuing with
respect to the Securities. 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) above may
be exchanged in whole or from time to time in part
as directed by the 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 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 or
Accreted Value 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 Depositary shall designate and
shall bear the applicable legends provided for
herein. Any Global Security to be exchanged in whole
shall be surrendered by the Depositary to the
Trustee, as 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
Depositary or its nominee with respect to such
Global Security, the principal amount or Accreted
Value 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 Depositary or an authorized
representative thereof.
(3) Subject to the provisions of clause (5) below, the
registered Holder may grant proxies and otherwise
authorize any person, including Agent Members (as
defined below) 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
Depositary (collectively, the "Agent Members") nor
any other persons on whose behalf Agent Members may
act shall have any rights under this Indenture with
respect to any Global Security registered in the
name of the Depositary or any nominee thereof, or
under any such Global Security, and the 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
effect to any written certification, proxy or other
authorization furnished by the Depositary or such
nominee, as the case may be, or impair, as between
the 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 2.13 CUSIP Numbers. The Company may issue the
Securities with one or more "CUSIP" numbers (if then generally in use),
and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption
as a convenience to Holders; provided that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
Section 2.14 Ranking. The Indebtedness of the Company
arising under or in connection with this Indenture and every outstanding
Security issued under this Indenture from time to time constitutes and will
constitute a senior unsecured general obligation of the Company, ranking
equally with other existing and future senior unsecured Indebtedness of the
Company and ranking senior to any future subordinated Indebtedness of the
Company.
ARTICLE III
REDEMPTION AND PURCHASES
Section 3.1 Company's Right to Redeem; Notices to
Trustee. The Company, at its option, may redeem the Securities in
accordance with the provisions of Paragraph 5 of the Securities. If the
Company elects to redeem Securities pursuant to Paragraph 5 of the
Securities, it shall notify the Trustee in writing of the Redemption Date,
the principal amount of Securities to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided
for in this Section 3.1 by a Company Order, at least 20 days before the
Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee).
Section 3.2 Selection of Securities to Be Redeemed. If
less than all the Securities are to be redeemed, unless the procedures of
the Depositary provide otherwise, the Trustee shall select the Securities
to be redeemed by lot, on a pro rata basis or by another method the Trustee
considers fair and appropriate (so long as such method is not prohibited by
the rules of any stock exchange on which the Securities are then listed).
The Trustee shall make the selection at least 15 days but not more than 60
days before the Redemption Date from outstanding Securities not previously
called for redemption. The Trustee may select for redemption portions of
the principal amount of Securities that have denominations larger than
$1,000.
Securities and portions of Securities that the Trustee
selects shall be in principal amounts of $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
the Securities to be redeemed.
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 may be treated by the Trustee as outstanding for
the purpose of such selection.
Section 3.3 Notice of Redemption. At least 15 days but
not more than 60 days before a Redemption Date, the Company shall mail a
notice of redemption by first-class mail, postage prepaid, to each Holder
of Securities to be redeemed.
The notice shall identify the Securities to be redeemed
and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and
Conversion Agent;
(5) that Securities called for redemption may be
converted at any time before the close of business
on the date that is two Business Days prior to the
Redemption Date;
(6) that Holders who want to convert their Securities
must satisfy the requirements set forth in Paragraph
8 of the Securities;
(7) that Securities called for redemption must be
surrendered to the Paying Agent to collect the
Redemption Price;
(8) if fewer than all of the outstanding Securities are
to be redeemed, the certificate numbers, if any, and
principal amounts of the particular Securities to be
redeemed;
(9) that, unless the Company defaults in making payment
of such Redemption Price, interest, if any, on
Securities called for redemption will cease to
accrue on and after the Redemption Date; and
(10) the CUSIP number(s) of the Securities.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense,
provided that the Company makes such request at least three Business Days
prior to the date by which such notice of redemption must be given to
Holders in accordance with this Section 3.3.
Section 3.4 Effect of Notice of Redemption. Once notice
of redemption is given, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price stated in the
notice except for Securities which are converted in accordance with the
terms of this Indenture. Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price stated in the notice.
Section 3.5 Deposit of Redemption Price. Prior to 10:00
a.m. (New York City time), on the Redemption Date, the Company shall
deposit with the Paying Agent (or if the Company or a Subsidiary or an
Affiliate of either of them is the Paying Agent, shall segregate and hold
in trust) money sufficient to pay the Redemption Price of all Securities to
be redeemed on that date other than Securities or portions of Securities
called for redemption which on or prior thereto have been delivered by the
Company to the Trustee for cancellation or have been converted. The Paying
Agent shall as promptly as practicable return to the Company any money not
required for that purpose because of conversion of Securities pursuant to
Article 10. If such money is then held by the Company in trust and is not
required for such purpose it shall be discharged from such trust.
Section 3.6 Securities Redeemed in Part. Upon surrender
of a Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder a new Security in an
authorized denomination equal in principal amount to the unredeemed portion
of the Security surrendered.
Section 3.7 Purchase of Securities by the Company at
Option of the Holder. (a) General. Securities shall be purchased by the
Company pursuant to Paragraph 6 of the Securities at the option of the
Holder on May 4, 2002, May 4, 2004, May 4, 2006, May 4, 2008, May 4, 2011
and May 4, 2016 (each, a "Purchase Date"), at the Accreted Value plus
accrued and unpaid cash interest, if any, on such Purchase Date (the
"Purchase Price"). Purchases of Securities hereunder shall be made, at the
option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a
written notice of purchase (a "Purchase Notice")
during the period beginning at any time from the
opening of business on the date that is 20 Business
Days prior to the relevant Purchase Date until the
close of business on the last day prior to such
Purchase Date stating:
(A) the certificate number of the Security which the
Holder will deliver to be purchased or the
appropriate Depositary procedures if Certificated
Securities have not been issued,
(B) the portion of the principal amount of the
Security which the Holder will deliver to be
purchased, which portion must be in principal
amounts of $1,000 or an integral multiple thereof,
(C) that such Security shall be purchased by the
Company as of the Purchase Date pursuant to the
terms and conditions specified in Paragraph 6 of the
Securities and in this Indenture, and
(D) in the event the Company elects, pursuant to
Section 3.7(b), to pay the Purchase Price, in whole
or in part, in shares of CD Common Stock but such
portion of the Purchase Price shall ultimately be
paid to such Holder entirely in cash because any of
the conditions to payment of the Purchase Price in
shares of CD Common Stock is not satisfied prior to
the close of business on the last day prior to the
relevant Purchase Date, as set forth in Section
3.7(d), whether such Holder elects (i) to withdraw
such Purchase Notice as to some or all of the
Securities to which such Purchase Notice relates
(stating the principal amount and certificate
numbers, if any, of the Securities as to which such
withdrawal shall relate), or (ii) to receive cash in
respect of the entire Purchase Price for all
Securities (or portions thereof) to which such
Purchase Notice relates; and
(2) delivery of such Security to the Paying Agent prior
to, on or after the Purchase Date (together with all
necessary endorsements) at the offices of the Paying
Agent, such delivery being a condition to receipt by
the Holder of the Purchase Price therefor; provided,
however, that such Purchase Price shall be so paid
pursuant to this Section 3.7 only if the Security so
delivered to the Paying Agent shall conform in all
respects to the description thereof in the related
Purchase Notice, as determined by the Company.
If a Holder, in such Holder's Purchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the terms
of Section 3.9, fails to indicate such Holder's choice with respect to the
election set forth in clause (D) of Section 3.7(a)(1), such Holder shall be
deemed to have elected to receive cash in respect of the entire Purchase
Price for all Securities subject to such Purchase Notice in the
circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof,
pursuant to this Section 3.7, a portion of a Security, if the principal
amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.7 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of
the Purchase Date and the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any
Holder delivering to the Paying Agent the Purchase Notice contemplated by
this Section 3.7(a) shall have the right to withdraw such Purchase Notice
at any time prior to the close of business on the last day prior to the
Purchase Date by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 3.9.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Purchase Notice or written notice of withdrawal
thereof.
(b) Company's Right to Elect Manner of Payment of
Purchase Price for Payment. The Securities to be purchased on any Purchase
Date pursuant to Section 3.7(a) may be paid for, in whole or in part, at
the election of the Company, in U.S. legal tender ("cash") or shares of CD
Common Stock, or in any combination of cash and shares of CD Common Stock,
subject to the conditions set forth in Sections 3.7(c) and (d). The Company
shall designate, in the Company Notice delivered pursuant to Section
3.7(e), whether the Company will purchase the Securities for cash or shares
of CD Common Stock, or, if a combination thereof, the percentages of the
Purchase Price of Securities in respect of which it will pay in cash or
shares of CD Common Stock; provided that the Company will pay cash for
fractional interests in shares of CD Common Stock. For purposes of
determining the existence of potential fractional interests, all Securities
subject to purchase by the Company held by a Holder shall be considered
together (no matter how many separate certificates are to be presented).
Each Holder whose Securities are purchased pursuant to this Section 3.7
shall receive the same percentage of cash or shares of CD Common Stock in
payment of the Purchase Price for such Securities, except (i) as provided
in Section 3.7(d) with regard to the payment of cash in lieu of fractional
shares of CD Common Stock and (ii) in the event that the Company is unable
to purchase the Securities of a Holder or Holders for shares of CD Common
Stock because any necessary qualifications or registrations of the shares
of CD Common Stock under applicable state securities laws cannot be
obtained, the Company may purchase the Securities of such Holder or Holders
for cash. The Company may not change its election with respect to the
consideration (or components or percentages of components thereof) to be
paid once the Company has given its Company Notice to Holders except
pursuant to this Section 3.7(b) or pursuant to Section 3.7(d) in the event
of a failure to satisfy, prior to the close of business on the last day
prior to the Purchase Date, any condition to the payment of the Purchase
Price, in whole or in part, in shares of CD Common Stock.
At least three Business Days before each Company Notice
Date, the Company shall deliver an Officers' Certificate to the Trustee
specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.7(e) in the
Company Notice,
(iii) if the Company elects to pay the Purchase Price, or
a specified percentage thereof, in shares of CD Common Stock, that
the conditions to such manner of payment set forth in Section
3.7(d) have been or will be complied with and
(iv) whether the Company desires the Trustee to give the
Company Notice required by Section 3.7(e).
(c) Purchase with Cash. At the option of the Company, the
Purchase Price of Securities in respect of which a Purchase Notice pursuant
to Section 3.7(a) has been given, or a specified percentage thereof, may be
paid by the Company with cash equal to the aggregate Purchase Price of such
Securities. The Purchase Price of Securities in respect of which a Purchase
Notice pursuant to Section 3.7(a) has been given shall, for all other
Purchase Dates, be paid in cash. The Company Notice, as provided in Section
3.7(e), shall be sent to Holders (and to beneficial owners as required by
applicable law) not less than 20 Business Days prior to such Purchase Date
(the "Company Notice Date").
(d) Payment by Issuance of shares of CD Common Stock. At
the option of the Company, the Purchase Price of Securities in respect of
which a Purchase Notice pursuant to Section 3.7(a) has been given, or a
specified percentage thereof, may be paid by the Company by the issuance of
a number of shares of CD Common Stock equal to the quotient obtained by
dividing (i) the portion of the Purchase Price to be paid in shares of CD
Common Stock by (ii) the Market Price of one share of CD Common Stock as
determined by the Company in the Company Notice, subject to the next
succeeding paragraph.
The Company will not issue fractional shares of CD Common
Stock in payment of the Purchase Price. Instead, the Company will pay cash
based on the current market price for all fractional shares. It is
understood that if a Holder elects to have more than one Security
purchased, the number of shares of CD Common Stock shall be based on the
aggregate amount of Securities to be purchased.
If the Company elects to purchase the Securities by the
issuance of shares of CD Common Stock, the Company Notice, as provided in
Section 3.7(e), shall be sent to the Holders (and to beneficial owners as
required by applicable law) not later than the Company Notice Date.
The Company's right to exercise its election to purchase
Securities through the issuance of shares of CD Common Stock shall be
conditioned upon:
(i) the Company's not having given its Company Notice of
an election to pay entirely in cash and its giving of timely
Company Notice of an election to purchase all or a specified
percentage of the Securities with shares of CD Common Stock as
provided herein;
(ii) the registration of such shares of CD Common Stock
under the Securities Act of 1933, as amended (the "Securities
Act"), or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), in each case, if required;
(iii) the listing of such shares of CD Common Stock on
the principal national securities exchange (currently the NYSE) on
which the shares of CD Common Stock are listed;
(iv) any necessary qualification or registration under
applicable state securities laws or the availability of an
exemption from such qualification and registration; and
(v) the receipt by the Trustee of an Officers'
Certificate and an Opinion of Counsel each stating that (A) the
terms of the issuance of the shares of CD Common Stock are in
conformity with this Indenture and (B) the shares of CD Common
Stock to be issued by the Company in payment of the Purchase Price
in respect of Securities have been duly authorized and, when
issued and delivered pursuant to the terms of this Indenture in
payment of the Purchase Price in respect of the Securities, will
be validly issued, fully paid and non-assessable and, to the best
of such counsel's knowledge, free from preemptive rights, and, in
the case of such Officers' Certificate, stating that the
conditions above and the condition set forth in the second
succeeding sentence have been satisfied and, in the case of such
Opinion of Counsel, stating that the conditions in clauses (i)
through (iv) above have been satisfied.
Such Officers' Certificate shall also set forth the
number of shares of CD Common Stock to be issued for each $1,000 principal
amount of Securities and the Sale Price of a share of CD Common Stock on
each trading day during the period commencing on the first trading day of
the period during which the Market Price is calculated and ending on the
third day prior to the applicable Purchase Date. The Company may pay the
Purchase Price (or any portion thereof) in shares of CD Common Stock only
if the information necessary to calculate the Market Price is published in
a daily newspaper of national circulation. If the foregoing conditions are
not satisfied with respect to a Holder or Holders prior to the close of
business on the last day prior to the Purchase Date, and the Company has
elected to purchase the Securities pursuant to this Section 3.7 through the
issuance of shares of CD Common Stock, the Company shall pay the entire
Purchase Price of the Securities of such Holder or Holders in cash.
The "Market Price" means the average of the Sale Prices
of the shares of CD Common Stock for the five trading day period ending on
the third Business Day prior to the applicable Purchase Date (if the third
Business Day prior to the applicable Purchase Date is a trading day, or if
not, then on the last trading day prior to the third Business Day),
appropriately adjusted to take into account the occurrence, during the
period commencing on the first of the trading days during the five trading
day period and ending on the Purchase Date, of any event described in
Sections 10.6, 10.7 or 10.8; subject, however, to the conditions set forth
in Sections 10.9 and 10.10.
The "Sale Price" of the shares of CD Common Stock on any
date means the closing per share sale price (or, if no closing sale price
is reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and the average asked prices)
on such date as reported on the NYSE or, if the shares of CD Common Stock
are not listed on the NYSE, as reported by the Nasdaq system. In the
absence of such quotations, the Company shall be entitled to determine the
sales price on the basis of such quotations as it considers appropriate.
Upon determination of the actual number of shares of CD
Common Stock to be issued upon redemption of Securities, the Company will
disseminate a press release through Dow Jones & Company, Inc. or Bloomberg
Business News containing this information or publish the information on the
Company's Web site or through such other public medium as the Company may
use at that time.
(e) Notice of Election. In connection with any purchase
of Securities pursuant to Paragraph 6 of the Securities, the Company shall
give notice to Holders setting forth information specified in this Section
3.7(e) (the "Company Notice").
In the event the Company has elected to pay the Purchase
Price (or a specified percentage thereof) with shares of CD Common Stock,
the Company Notice shall:
(1) state that each Holder will receive shares of CD
Common Stock with a Market Price determined as of a
specified date prior to the Purchase Date equal to
such specified percentage of the Purchase Price of
the Securities held by such Holder (except any cash
amount to be paid in lieu of fractional shares);
(2) set forth the method of calculating the Market Price
of the shares of CD Common Stock; and
(3) state that because the Market Price of shares of CD
Common Stock will be determined prior to the
Purchase Date, Holders of the Securities will bear
the market risk with respect to the value of the
shares of CD Common Stock to be received from the
date such Market Price is determined to the Purchase
Date.
In any case, each Company Notice shall include a form of
Purchase Notice to be completed by a Holder and shall state:
(i) the Purchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and the
Conversion Agent;
(iii) that Securities as to which a Purchase Notice has
been given may be converted if they are otherwise convertible only
in accordance with Article 10 hereof and Paragraph 8 of the
Securities if the applicable Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying
Agent to collect payment;
(v) that the Purchase Price for any security as to which
a Purchase Notice has been given and not withdrawn will be paid
promptly following the later of the Purchase Date and the time of
surrender of such Security as described in (iv);
(vi) the procedures the Holder must follow to exercise
its put rights under this Section 3.7 and a brief description of
those rights;
(vii) briefly, the conversion rights of the Securities;
(viii) the procedures for withdrawing a Purchase Notice
(including, without limitation, for a conditional withdrawal
pursuant to the terms of Section 3.7(a)(1)(D) or Section 3.9);
(ix) that, unless the Company defaults in making payment
on Securities for which a Purchase Notice has been submitted,
interest, if any, on such Securities will cease to accrue on the
Purchase Date; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such
Company Notice in the Company's name and at the Company's expense;
provided, however, that, in all cases, the text of such Company Notice
shall be prepared by the Company.
(f) Covenants of the Company. All shares of CD Common
Stock delivered upon purchase of the Securities shall be newly issued
shares or treasury shares, shall be duly authorized, validly issued, fully
paid and nonassessable, and shall be free from preemptive rights and free
of any lien or adverse claim.
(g) Procedure upon Purchase. The Company shall deposit
cash (in respect of a cash purchases under this Section 3.7 or for
fractional interests, as applicable) or shares of CD Common Stock, or a
combination thereof, as applicable, at the time and in the manner as
provided in Section 3.10, sufficient to pay the aggregate Purchase Price of
all Securities to be purchased pursuant to this Section 3.7. As soon as
practicable after the Purchase Date, the Company shall deliver to each
Holder entitled to receive shares of CD Common Stock through the Paying
Agent, a certificate for the number of full shares of CD Common Stock
issuable in payment of the Purchase Price and cash in lieu of any
fractional interests. The person in whose name the certificate for the
shares of CD Common Stock is registered shall be treated as a holder of
record of CD Common Stock on the Business Day following the Purchase Date.
Subject to Section 3.7(d), no payment or adjustment will be made for
dividends on the shares of CD Common Stock the record date for which
occurred on or prior to the Purchase Date.
(h) Taxes. If a Holder of a purchased Security is paid in
shares of CD Common Stock, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on such issue of CD Common Stock.
However, the Holder shall pay any such tax which is due because the Holder
requests the CD Common Stock to be issued in a name other than the Holder's
name. The Paying Agent may refuse to deliver the certificates representing
the shares of CD Common Stock being issued in a name other than the
Holder's name until the Paying Agent receives a sum sufficient to pay any
tax which will be due because the shares of CD Common Stock are to be
issued in a name other than the Holder's name. Nothing herein shall
preclude any income tax withholding required by law or regulations.
Section 3.8 Purchase of Securities at Option of the
Holder upon Change in Control. (a) If a Change in Control occurs, the
Securities not previously purchased by the Company shall be purchased by
the Company, at the option of the Holder thereof, at a purchase price
specified in Paragraph 6 of the Securities (the "Change in Control Purchase
Price"), as of the date that is 45 days after the date of the Change in
Control Notice delivered by the Company (the "Change in Control Purchase
Date"), subject to satisfaction by or on behalf of the Holder of the
requirements set forth in Section 3.8(c).
A "Change in Control" shall be deemed to have occurred at
such time after the Securities are originally issued as either of the
following events shall occur:
(i) any person, including any syndicate or group deemed
to be a "person" under Section 13(d)(3) of the Exchange Act,
acquires beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of
transactions, of shares of the Company's Capital Stock entitling
the person to exercise 50% or more of the total voting power of
all shares of the Company's Capital Stock that are entitled to
vote generally in elections of directors, other than an
acquisition by the Company, any of its Subsidiaries or any of its
employee benefit plans; or
(ii) the Company merges or consolidates with or into any
other person, any merger of another person into the Company, or
the Company conveys, sells, transfers or leases all or
substantially all of its assets to another person, other than any
transaction: (A) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of the
Company's Capital Stock, or (B) pursuant to which the holders of
CD Common Stock immediately prior to the transaction have the
entitlement to exercise, directly or indirectly, 50% or more of
the total voting power of all shares of Capital Stock entitled to
vote generally in the election of directors of the continuing or
surviving corporation immediately after the transaction, or (C)
which is effected solely to change the Company's jurisdiction of
incorporation and results in a reclassification, conversion or
exchange of outstanding shares of the CD Common Stock solely into
shares of common stock of the surviving entity.
Notwithstanding the foregoing provisions of this Section 3.8, a Change in
Control shall not be deemed to have occurred if (A) the closing price per
share of CD Common Stock on the NYSE for any five NYSE trading days within
the period of 10 consecutive NYSE trading days ending immediately after the
later of the Change in Control or the public announcement of the Change in
Control, in the case of a Change in Control relating to an acquisition of
Capital Stock, or the period of 10 consecutive NYSE trading days ending
immediately before the Change in Control, in the case of Change in Control
relating to a merger, consolidation or asset sale, equals or exceeds 105%
of the conversion price of the Securities in effect on each of those NYSE
trading days or (B) all of the consideration (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters' appraisal
rights) in a merger or consolidation otherwise constituting a Change in
Control under clause (i) and/or clause (ii) above consists of shares of
common stock traded on a national securities exchange or quoted on the
Nasdaq National Market (or will be so traded or quoted immediately
following the merger or consolidation) and as a result of the merger or
consolidation the Securities become convertible into such common stock. For
purposes of this Section 3.8, (x) the conversion price is equal to $1,000
divided by the Conversion Rate, (y) whether a person is a "beneficial
owner" shall be determined in accordance with Rule 13d-3 under the Exchange
Act and (z) "person" includes any syndicate or group that would be deemed
to be a "person" under Section 13(d)(3) of the Exchange Act.
(b) No later than 30 days after the occurrence of a
Change in Control, the Company shall mail a written notice of the Change in
Control by first-class mail to the Trustee and to each Holder (and to
beneficial owners as required by applicable law). The notice shall include
a form of Change in Control Purchase Notice to be completed by the Holder
and shall state:
(1) briefly, the events causing a Change in Control and
the date of such Change in Control;
(2) the date by which the Change in Control Purchase
Notice pursuant to this Section 3.8 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent and the
Conversion Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that the Securities as to which a Change in Control
Purchase Notice has been given may be converted if
they are otherwise convertible pursuant to Article
10 hereof only if the Change in Control Purchase
Notice has been withdrawn in accordance with the
terms of this Indenture;
(8) that the Securities must be surrendered to the
Paying Agent to collect payment;
(9) that the Change in Control Purchase Price for any
Security as to which a Change in Control Purchase
Notice has been duly given and not withdrawn will be
paid promptly following the later of the Change in
Control Purchase Date and the time of surrender of
such Security as described in (8);
(10) briefly, the procedures the Holder must follow to
exercise rights under this Section 3.10;
(11) briefly, the conversion rights, if any, of the
Securities;
(12) the procedures for withdrawing a Change in Control
Purchase Notice;
(13) that, unless the Company defaults in making payment
of such Change in Control Purchase Price, interest,
if any, on Securities surrendered for purchase by
the Company will cease to accrue on and after the
Change in Control Purchase Date; and
(14) the CUSIP number(s) of the Securities.
(c) A Holder may exercise its rights specified in Section
3.8(a) upon delivery of a written notice of purchase (a "Change in Control
Purchase Notice") to the Paying Agent at any time on or prior to the 30th
day after the date the Company delivers its written Change in Control
Purchase Notice, stating:
(1) the certificate number of the Security which the
Holder will deliver to be purchased;
(2) the portion of the principal amount of the Security
which the Holder will deliver to be purchased, which
portion must be $1,000 or an integral multiple
thereof; and
(3) that such Security shall be purchased pursuant to
the terms and conditions specified in Paragraph 6 of
the Securities.
The delivery of such Security to the Paying Agent with
the Change in Control Purchase Notice (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to
the receipt by the Holder of the Change in Control Purchase Price therefor;
provided, however, that such Change in Control Purchase Price shall be so
paid pursuant to this Section 3.8 only if the Security so delivered to the
Paying Agent shall conform in all respects to the description thereof set
forth in the related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof,
pursuant to this Section 3.8, a portion of a Security if the principal
amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.8 shall be consummated by the delivery of the
consideration to be received by the Holder on the Change of Control
Purchase Date.
Notwithstanding anything herein to the contrary, any
Holder delivering to the Paying Agent the Change in Control Purchase Notice
contemplated by this Section 3.8(c) shall have the right to withdraw such
Change in Control Purchase Notice at any time prior to the close of
business on the last day prior to the Change in Control Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written
withdrawal thereof.
Section 3.9 Effect of Purchase Notice or Change in
Control Purchase Notice. Upon receipt by the Paying Agent of the Purchase
Notice or Change in Control Purchase Notice specified in Section 3.7(a) or
Section 3.8(c), as applicable, the Holder of the Security in respect of
which such Purchase Notice or Change in Control Purchase Notice, as the
case may be, was given shall (unless such Purchase Notice or Change in
Control Purchase Notice, as the case may be, is withdrawn as specified in
the following two paragraphs) thereafter be entitled to receive solely the
Purchase Price or Change in Control Purchase Price, as the case may be,
with respect to such Security. Such Purchase Price or Change in Control
Purchase Price shall be paid to such Holder, subject to receipts of funds
and/or securities by the Paying Agent, promptly following the later of (x)
the Purchase Date or the Change in Control Purchase Date, as the case may
be, with respect to such Security (provided the conditions in Section
3.7(a) or Section 3.8(c), as applicable, have been satisfied) and (y) the
time of delivery of such Security to the Paying Agent by the Holder thereof
in the manner required by Section 3.7(a) or Section 3.8(c), as applicable.
Securities in respect of which a Purchase Notice or Change in Control
Purchase Notice has been given by the Holder thereof may not be converted
pursuant to Article 10 hereof on or after the date of the delivery of such
Purchase Notice or Change in Control Purchase Notice unless such Purchase
Notice or Change in Control Purchase Notice has first been validly
withdrawn as specified in the following two paragraphs.
A Purchase Notice or Change in Control Purchase Notice
may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent in accordance with the Purchase Notice or
Change in Control Purchase Notice, as the case may be, at any time prior to
the close of business on the last day prior to the Purchase Date or the
Change in Control Purchase Date, as the case may be, specifying:
(1) the certificate number, if any, of the Security in
respect of which such notice of withdrawal is being
submitted,
(2) the principal amount of the Security with respect to
which such notice of withdrawal is being submitted,
and
(3) the principal amount, if any, of such Security which
remains subject to the original Purchase Notice or
Change in Control Purchase Notice, as the case may
be, and which has been or will be delivered for
purchase by the Company.
A written notice of withdrawal of a Purchase Notice may
be in the form set forth in the preceding paragraph or may be in the form
of (i) a conditional withdrawal contained in a Purchase Notice pursuant to
the terms of Section 3.7(a)(1)(D) or (ii) a conditional withdrawal
containing the information set forth in Section 3.7(a)(1)(D) and the
preceding paragraph and contained in a written notice of withdrawal
delivered to the Paying Agent as set forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to
Section 3.7 or 3.8 if there has occurred (prior to, on or after, as the
case may be, the giving, by the Holders of such Securities, of the required
Purchase Notice or Change in Control Purchase Notice, as the case may be)
and is continuing an Event of Default (other than a default in the payment
of the Purchase Price or Change in Control Purchase Price, as the case may
be, with respect to such Securities). The Paying Agent will promptly return
to the respective Holders thereof any Securities (x) with respect to which
a Purchase Notice or Change in Control Purchase Notice, as the case may be,
has been withdrawn in compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Purchase Price or Change in Control Purchase Price, as the
case may be, with respect to such Securities) in which case, upon such
return, the Purchase Notice or Change in Control Purchase Notice with
respect thereto shall be deemed to have been withdrawn.
Section 3.10 Deposit of Purchase Price or Change in
Control Purchase Price. Prior to 10:00 a.m. (local time in the City of New
York) on the Business Day following the Purchase Date or the Change in
Control Purchase Date, as the case may be, the Company shall deposit with
the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or
an Affiliate of either of them is acting as the Paying Agent, shall
segregate and hold in trust as provided in Section 2.4) an amount of cash
(in immediately available funds if deposited on such Business Day) or CD
Common Stock, if permitted hereunder, sufficient to pay the aggregate
Purchase Price or Change in Control Purchase Price, as the case may be, of
all the Securities or portions thereof which are to be purchased as of the
Purchase Date or Change in Control Purchase Date, as the case may be.
Section 3.11 Securities Purchased in Part. Any
Certificated Security which is to be purchased only in part shall be
surrendered at the office of the Paying Agent (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate
and deliver to the Holder of such 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
portion of the principal amount of the Security so surrendered which is not
purchased.
Section 3.12 Covenant to Comply With Securities Laws Upon
Purchase of Securities. When complying with the provisions of Section 3.7
or 3.8 hereof (provided that such offer or purchase constitutes an "issuer
tender offer" for purposes of Rule 13e-4 (which term, as used herein,
includes any successor provision thereto) under the Exchange Act at the
time of such offer or purchase), the Company shall (i) comply with Rule
13e-4 and Rule 14e-1 (or any successor provision) under the Exchange Act,
(ii) file the related Schedule TO (or any successor schedule, form or
report) under the Exchange Act, and (iii) otherwise comply with all Federal
and state securities laws so as to permit the rights and obligations under
Sections 3.7 and 3.8 to be exercised in the time and in the manner
specified in Sections 3.7 and 3.8.
Section 3.13 Repayment to the Company. The Trustee and
the Paying Agent shall return to the Company any cash or shares of CD
Common Stock that remain unclaimed as provided in Paragraph 12 of the
Securities, together with interest or dividends, if any, thereon (subject
to the provisions of Section 7.1(f)), held by them for the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be;
provided, however, that to the extent that the aggregate amount of cash or
shares of CD Common Stock deposited by the Company pursuant to Section 3.10
exceeds the aggregate Purchase Price or Change in Control Purchase Price,
as the case may be, of the Securities or portions thereof which the Company
is obligated to purchase as of the Purchase Date or Change in Control
Purchase Date, as the case may be, then, unless otherwise agreed in writing
with the Company, promptly after the Business Day following the Purchase
Date or Change in Control Purchase Date, as the case may be, the Trustee
shall return any such excess to the Company together with interest or
dividends, if any, thereon (subject to the provisions of Section 7.1(f)).
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities. The Company shall
promptly make all payments in respect of the Securities on the dates and in
the manner provided in the Securities or pursuant to this Indenture. Any
amounts of cash or shares of CD Common Stock to be given to the Trustee or
Paying Agent, shall be deposited with the Trustee or Paying Agent by 10:00
a.m. New York City time by the Company. Principal amount, Accreted Value
plus accrued interest, if any, Redemption Price, Purchase Price, Change in
Control Purchase Price and cash interest, if any, shall be considered paid
on the applicable date due if on such date (or, in the case of a Purchase
Price or Change in Control Purchase Price, on the Business Day following
the applicable Purchase Date or Change in Control Purchase Date, as the
case may be) the Trustee or the Paying Agent holds, in accordance with this
Indenture, cash or securities, if permitted hereunder, sufficient to pay
all such amounts then due.
Section 4.2 SEC and Other Reports. The Company shall file
with the Trustee, within 15 days after it files such annual and quarterly
reports, information, documents and other reports with the SEC, copies of
its annual report and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. In the event the
Company is at any time no longer subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, it shall continue to provide the
Trustee with reports containing substantially the same information as would
have been required to be filed with the SEC had the Company continued to
have been subject to such reporting requirements. In such event, such
reports shall be provided at the times the Company would have been required
to provide reports had it continued to have been subject to such reporting
requirements. The Company also shall comply with the other provisions of
TIA Section 314(a). Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely conclusively on Officers' Certificates).
Section 4.3 Compliance Certificate. The Company shall
deliver to the Trustee within 120 days after the end of each fiscal year of
the Company (beginning with the fiscal year ending on December 31, 2001) 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 4.4 Further Instruments and Acts. Upon request of
the Trustee, the Company will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry
out more effectively the purposes of this Indenture.
Section 4.5 Maintenance of Office or Agency. The Company
will maintain in the Borough of Manhattan, the City of New York, an office
or agency of the Trustee, Registrar, Paying Agent and Conversion Agent
where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer, exchange,
purchase, redemption or conversion and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served.
The office of The Bank of New York, 101 Barclay Street, Floor 21W, New
York, New York 10286 (Attention: Corporate Trust Trustee Administration),
shall initially be such office or agency for all of the aforesaid purposes.
The Company shall give prompt written notice to the Trustee of the
location, and of any change in the location, of any such office or agency
(other than a change in the location of the office of the Trustee). 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
address of the Trustee set forth in Section 11.2.
The Company may also from time to time designate one or
more other offices or agencies 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.
Section 4.6 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 any beneficial owner of Securities or
holder or beneficial owner of shares of CD Common Stock issued upon
conversion thereof, or in accordance with Section 3.8(c), the Company will
promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of CD Common Stock, or to a prospective
purchaser of any such security designated by any such 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
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. Whether a person is a beneficial owner shall be determined
by the Company to the Company's reasonable satisfaction.
Section 4.7 Calculation of Original Issue Discount. The
Company and the Trustee on behalf of the Holders agree (i) that for United
States federal income tax purposes the Securities will be treated as
indebtedness subject to the Treasury regulations governing contingent
payment debt instruments, (ii) that the Holders will report original issue
discount and interest on the Securities in accordance with the Company's
determination of both the "comparable yield" and the "projected payment
schedule" and (iii) to be bound by the Company's application of the
Treasury regulations that govern contingent payment debt instruments. For
this purpose, the "comparable yield" for the Securities is 9.2% compounded
semi-annually and the "projected payment schedule" may be obtained by
contacting the Company at the address set forth in Section 11.2. The
Company shall file with the Trustee no later than the end of each calendar
year (i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on outstanding
Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to
time.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets.
The Company shall not consolidate with or merge with or into any other
person or convey, transfer, sell or lease its properties and assets
substantially as an entirety to any person, permit any person to
consolidate with or merge into the Company, or permit any person to convey,
transfer, sell or lease that person's properties and assets substantially
as an entirety to the Company, unless:
(a) either (1) the Company shall be the continuing
corporation or (2) the person (if other than the Company) formed by such
consolidation or into which the Company is merged or the person which
acquires by conveyance, transfer or lease the properties and assets of the
Company substantially as an entirety (i) shall be organized and validly
existing under the laws of the United States or any State thereof or the
District of Columbia and (ii) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all of the obligations of the
Company under the Securities and this Indenture;
(b) immediately after giving effect to such transaction,
no Event of Default, and no event that, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing; and
(c) the Company shall have 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 5 and that all conditions
precedent herein provided for relating to such transaction have been
satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if
such assets were owned by the Company, would constitute all or
substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
The successor person formed by such consolidation or into
which the Company is merged or the successor person to which such
conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this
Indenture with the same effect as if such successor had been named as the
Company herein; and thereafter, except in the case of a lease and
obligations the Company may have under a supplemental indenture pursuant to
Section 10.14, the Company shall be discharged from all obligations and
covenants under this Indenture and the Securities. Subject to Section 9.6,
the Company, the Trustee and the successor person shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor person and such discharge and release of the Company.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default. An "Event of Default"
occurs if:
(1) the Company defaults in the payment of the Accreted
Value (including any interest payable pursuant to an Upward Interest
Adjustment, other than the portion of such interest payable as cash
interest), if any, Redemption Price, Purchase Price or Change in Control
Purchase Price on any Security when the same becomes due and payable at its
Stated Maturity, upon redemption, upon declaration, when due for purchase
by the Company or otherwise;
(2) the Company defaults in the payment of any cash
interest, (after an Upward Interest Adjustment or any election by the
Company to pay cash interest on the Securities following a Tax Event) when
due and payable, and continuance of such default for a period of 30 days;
(3) the Company fails to comply with any of its
agreements or covenants in the Securities or this Indenture (other than
those referred to in clause (1) or (2) above) and such failure continues
for 60 days after receipt by the Company of a Notice of Default;
(4) there shall have occurred either (i) a default by the
Company under any instrument or instruments under which there is or may be
secured or evidenced any Indebtedness of the Company (other than the
Securities) having an outstanding principal amount of $50,000,000 (or its
foreign currency equivalent) or more, individually or in the aggregate,
that has caused the holders thereof to declare such Indebtedness to be due
and payable prior to its Stated Maturity, unless such declaration has been
rescinded within 30 days or (ii) a default by the Company in the payment
when due of the principal or premium, if any, of any bond, debenture, note
or other evidence of the Company's Indebtedness, in each case for money
borrowed, or in the payment of principal under any mortgage, indenture,
agreement or instrument under which there may be issued or by which there
may be secured or evidenced any Indebtedness of the Company for money
borrowed, which default for payment of principal or premium, if any, is in
an aggregate principal amount exceeding $50,000,000 (or its foreign
currency equivalent) when such Indebtedness becomes due and payable
(whether at maturity, upon redemption or acceleration or otherwise), if
such default shall continue unremedied or unwaived for more than 30
Business Days after the expiration of any grace period or extension of the
time for payment applicable thereto;
(5) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Company in an
involuntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee or sequestrator (or similar
official) of the Company or for any substantial part of its property or
ordering the winding up or liquidation of its affairs and such decree or
order shall remain unstayed and in effect for a period of 60 consecutive
days; or
(6) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or consent to the entry of an order for relief in an involuntary
case under any such law, or consent to the appointment of or taking
possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for any substantial
part of its property or make any general assignment for the benefit of
creditors.
A Default under clause (3) above is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least
25% in aggregate principal amount of the Securities at the time outstanding
notify the Company and the Trustee, of the Default and the Company does not
cure such Default (and such Default is not waived) within the time
specified in clause (3) above after actual receipt of such notice. Any such
notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days
after it becomes aware of the occurrence thereof, written notice of any
event which with the giving of notice or the lapse of time, or both, would
mature into an Event of Default under clauses (4), (5) or (6) above, its
status and what action the Company is taking or proposes to take with
respect thereto.
Section 6.2 Acceleration. If an Event of Default (other
than an Event of Default specified in Section 6.1(5) or (6) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at
least 25% in aggregate principal amount of the Securities at the time
outstanding by notice to the Company and the Trustee, may declare the
Accreted Value plus accrued and unpaid cash interest, if any, on all the
Securities to be immediately due and payable. Upon such a declaration, such
accelerated amount shall be due and payable immediately. If an Event of
Default specified in Section 6.1(5) or (6) occurs and is continuing, the
Accreted Value plus accrued and unpaid cash interest, if any, on all the
Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Securityholders.
The Holders of a majority in aggregate principal amount of the Securities
at the time outstanding, by notice to the Trustee (and without notice to
any other Securityholder) may rescind an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of
the Accreted Value plus accrued and cash unpaid interest, if any, that have
become due solely as a result of acceleration and if all amounts due to the
Trustee under Section 7.7 have been paid. No such rescission shall affect
any subsequent Default or impair any right consequent thereto.
Section 6.3 Other Remedies. If an Event of Default occurs
and is continuing, the Trustee may pursue any available remedy to collect
the payment of the Accreted Value plus accrued and unpaid cash interest, if
any, on the Securities or to enforce the performance of any provision of
the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee
does not possess any of the Securities or does not produce any of the
Securities in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an Event of
Default shall not impair the right or remedy or constitute a waiver of, or
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
Section 6.4 Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder), may waive an existing Default and its consequences except
(1) an Event of Default described in Section 6.1(1) or (2), (2) a Default
in respect of a provision that under Section 9.2 cannot be amended without
the consent of each Securityholder affected or (3) a Default which
constitutes a failure to convert any Security in accordance with the terms
of Article 10. When a Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or impair any
consequent right. This Section 6.4 shall be in lieu of Section 316(a)1(B)
of the TIA and such Section 316(a)1(B) is hereby expressly excluded from
this Indenture, as permitted by the TIA.
Section 6.5 Control by Majority. The Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding may direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or of exercising any
trust or power conferred on the Trustee. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or that the
Trustee determines in good faith is unduly prejudicial to the rights of
other Securityholders or would involve the Trustee in personal liability
unless the Trustee is offered indemnity satisfactory to it. This Section
6.5 shall be in lieu of Section 316(a)1(A) of the TIA and such Section
316(a)1(A) is hereby expressly excluded from this Indenture, as permitted
by the TIA.
Section 6.6 Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities at the time outstanding make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security
or indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within
60 days after receipt of such notice, request and offer of security or
indemnity; and
(5) the Holders of a majority in aggregate principal
amount of the Securities at the time outstanding do not give the Trustee a
direction inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice
the rights of any other Securityholder or to obtain a preference or
priority over any other Securityholder.
Section 6.7 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the Accreted Value, Redemption Price, Purchase
Price, Change in Control Purchase Price or interest, if any, in respect of
the Securities held by such Holder, on or after the respective due dates
expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article 10, or to bring suit for the
enforcement of any such payment on or after such respective dates or the
right to convert, shall not be impaired or affected adversely without the
consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of
Default described in Section 6.1(1) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the
Securities and the amounts provided for in Section 7.7.
Section 6.9 Trustee May File Proofs of Claim. In case of
the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal amount, Accreted Value,
Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, in respect of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the
Company for the payment of any such amount) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
principal amount, Accreted Value, Redemption Price, Purchase Price, Change
in Control Purchase Price, or interest, if any, 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
or any other amounts due the Trustee under Section 7.7) and of the Holders
allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same; and
any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay 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
7.7. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any
money pursuant to this Article 6, it shall pay out the money in the
following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on
the Securities for the Accreted Value, Redemption Price, Purchase Price,
Change in Control Purchase Price or interest, if any, as the case may be,
ratably, without preference or priority of any kind, according to such
amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for
any payment to Securityholders pursuant to this Section 6.10. At least 15
days before such record date, the Trustee shall mail to each Securityholder
and the Company a notice that states the record date, the payment date and
the amount to be paid.
Section 6.11 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a
court in its discretion may require the filing by any party litigant (other
than the Trustee) in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.7
or a suit by Holders of more than 10% in aggregate principal amount of the
Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section 6.12 Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which
would prohibit or forgive the Company from paying all or any portion of the
principal amount, Accreted Value, Redemption Price, Purchase Price or
Change in Control Purchase Price in respect of Securities, or any interest
on such amounts, as contemplated herein, or 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 VII
TRUSTEE
Section 7.1 Duties of Trustee. (a) If an Event of Default
has occurred and is continuing, the Trustee shall exercise the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in its exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no
others; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the
statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture, but in case of any
such certificates or opinions which by any provision
hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or
not they conform to the requirements of this
Indenture, but need not confirm or investigate the
accuracy of mathematical calculations or other facts
stated therein. This Section 7.1(b) shall be in lieu
of Section 3.15(a) of the TIA and such Section
315(a) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(1) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
unless it is proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with a direction received by it pursuant
to Section 6.5.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2)
and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of
this Section 7.1.
(e) The Trustee may refuse to perform any duty or
exercise any right or power or extend or risk its own funds or otherwise
incur any financial liability unless it receives indemnity satisfactory to
it against any loss, liability or expense.
(f) Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by law. The
Trustee (acting in any capacity hereunder) shall be under no liability for
interest on any money received by it hereunder unless otherwise agreed in
writing with the Company.
Section 7.2 Rights of Trustee. Subject to its duties and
responsibilities under the TIA,
(a) the Trustee may conclusively 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) 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, conclusively rely upon an Officers'
Certificate;
(c) 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;
(d) The Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith which it believes to
be authorized or within its rights or powers conferred under this
Indenture;
(e) The Trustee may consult with counsel selected by it
and any advice or Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel.
(f) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby.
(g) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(h) 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 at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or
investigation;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and this
Indenture;
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and to each agent, custodian and other
person employed to act hereunder; and
(k) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be signed by any person
authorized to sign an Officers' Certificate, including any person specified
as so authorized in any such certificate previously delivered and not
superseded.
Section 7.3 Individual Rights of Trustee. The Trustee in
its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or its Affiliates with
the same rights it would have if it were not Trustee. Any Paying Agent,
Registrar, Conversion Agent or co-registrar may do the same with like
rights. However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use or
application of the proceeds from the Securities, it shall not be
responsible for any statement in the registration statement for the
Securities under the Securities Act or in any offering document for the
Securities, the Indenture or the Securities (other than its certificate of
authentication), or the determination as to which beneficial owners are
entitled to receive any notices hereunder.
Section 7.5 Notice of Defaults. If a Default occurs and
if it is known to the Trustee, the Trustee shall give to each
Securityholder notice of the Default within 90 days after it occurs or, if
later, within 15 days after it is known to the Trustee, unless such Default
shall have been cured or waived before the giving of such notice.
Notwithstanding the preceding sentence, except in the case of a Default
described in Section 6.1(1) or (2), the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of
Securityholders. The second sentence of this Section 7.5 shall be in lieu
of the proviso to Section 315(b) of the TIA and such proviso is hereby
expressly excluded from this Indenture, as permitted by the TIA. The
Trustee shall not be deemed to have knowledge of a Default unless a
Responsible Officer of the Trustee has received written notice of such
Default.
Section 7.6 Reports by Trustee to Holders. Within 60 days
after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report
dated as of such May 15 that complies with TIA Section 313(a), if required
by such Section 313(a). The Trustee also shall comply with TIA Section
313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each securities exchange,
if any, on which the Securities are listed. The Company agrees to notify
the Trustee promptly whenever the Securities become listed on any
securities exchange and of any delisting thereof.
Section 7.7 Compensation and Indemnity. The Company
agrees:
(a) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (which compensation
shall not be limited (to the extent permitted by law) by any provision of
law in regard to the compensation of a trustee of an express trust);
(b) 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, advances 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
(c) to indemnify the Trustee or any predecessor, Trustee
and their agents for, and to hold them harmless against, any loss, damage,
claim, liability, cost or expense (including attorney's fees and expenses,
and taxes (other than taxes based upon, measured by or determined by the
income of the Trustee)) incurred without negligence 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 (whether asserted by the Company or any Holder or any other
person) or liability in connection with the exercise or performance of any
of its powers or duties hereunder.
To secure the Company's payment obligations in this
Section 7.7, the Trustee shall have a lien prior to the Securities on all
money or property held or collected by the Trustee, except that held in
trust to pay the principal amount, Accreted Value, Redemption Price,
Purchase Price, Change in Control Purchase Price or interest, if any, as
the case may be, on particular Securities.
The Company's payment obligations pursuant to this
Section 7.7 shall survive the discharge of this Indenture and the
resignation or removal of the Trustee. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.1(5) or (6), the
expenses including the reasonable charges and expenses of its counsel, are
intended to constitute expenses of administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee. The Trustee may
resign by so notifying the Company; provided, however, no such resignation
shall be effective until a successor Trustee has accepted its appointment
pursuant to this Section 7.8. The Holders of a majority in aggregate
principal amount of the Securities at the time outstanding may remove the
Trustee by so notifying the Trustee and the Company. The Company shall
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall promptly
appoint, by resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee and to the Company satisfactory in
form and substance to the retiring Trustee and the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture. The successor Trustee shall mail a notice of
its succession to Securityholders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 30
days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in aggregate principal
amount of the Securities at the time outstanding may petition any court of
competent jurisdiction at the expense of the Company for the appointment of
a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
Section 7.9 Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or
substantially all its corporate trust business or assets to, another
corporation, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification. The Trustee
shall at all times satisfy the requirements of TIA Sections 310(a)(1) and
310(b). The Trustee (or its parent holding company) shall have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. Nothing herein contained shall
prevent the Trustee from filing with the Commission the application
referred to in the penultimate paragraph of TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the
extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities. When
(i) the Company delivers to the Trustee all outstanding Securities (other
than Securities replaced or repaid pursuant to Section 2.7) for
cancellation or (ii) all outstanding Securities have become due and payable
and the Company deposits with the Trustee cash sufficient to pay all
amounts due and owing on all outstanding Securities (other than Securities
replaced pursuant to Section 2.7), and if in either case the Company pays
all other sums payable hereunder by the Company, then this Indenture shall,
subject to Section 7.7, cease to be of further effect. The Trustee shall
join in the execution of a document prepared by the Company acknowledging
satisfaction and discharge of this Indenture on demand of the Company
accompanied by an Officers' Certificate and Opinion of Counsel and at the
cost and expense of the Company.
Section 8.2 Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years, subject to applicable
unclaimed property law. After return to the Company, Holders entitled to
the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another
person and the Trustee and the Paying Agent shall have no further liability
to the Securityholders with respect to such money or securities for that
period commencing after the return thereof.
ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders. The Company and
the Trustee may amend this Indenture or the Securities without the consent
of any Securityholder, so long as such changes, other than those in clause
(2), do not materially and adversely affect the interests of the
Securityholder:
(1) to cure any ambiguity, omission, defect or
inconsistency provided that such modification or amendment does not, in the
good faith opinion of the Company's Board of Directors and the Trustee,
adversely affect the interests of the holders of the Securities in any
material respect;
(2) to comply with Article 5 or Section 10.14;
(3) to secure the Company's obligations or add any
guarantee under the Securities and this Indenture;
(4) to add Events of Default with respect to the
Securities; or
(5) to add to the Company's covenants for the benefit of
the Securityholders or to surrender any right or power conferred upon the
Company; or
(6) to make any change necessary for the registration of
the Securities under the Securities Act or to comply with the TIA, or any
amendment thereto, or to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA, provided
that such modification or amendment does not, in the good faith opinion of
the Company's Board of Directors and the Trustee, adversely affect the
interests of the holders of the Securities in any material respect.
Section 9.2 With Consent of Holders. With the written
consent of the Holders of at least a majority in aggregate principal amount
of the Securities at the time outstanding, the Company and the Trustee may
amend this Indenture or the Securities. However, without the consent of
each Securityholder affected, an amendment to this Indenture or the
Securities may not:
(1) reduce the rate or accrual of interest referred to in
paragraph 1 of the Securities;
(2) reduce the principal amount or the Accreted Value of
or extend the Stated Maturity of any Security;
(3) reduce the value of the CD Common Stock to which
reference is made in determining whether an Upward Interest Adjustment will
be made on the Securities, or change the method by which this value is
calculated;
(4) reduce the Redemption Price, Purchase Price or Change
in Control Purchase Price of any Security;
(5) make any Security or interest thereon payable in
money or securities other than that stated in the Security;
(6) make any change in Section 6.4, Section 6.7 or this
Section 9.2, except to increase any percentage set forth therein;
(7) make any change that adversely affects the right to
convert any Security; or
(8) make any change that adversely affects the right to
require the Company to purchase the Securities in accordance with the terms
thereof and this Indenture.
It shall not be necessary for the consent of the Holders
under this Section 9.2 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment under this Section 9.2 becomes
effective, the Company shall mail to each Holder a notice briefly
describing the amendment.
Section 9.3 Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall comply with
the TIA.
Section 9.4 Revocation and Effect of Consents, Waivers
and Actions. Until an amendment, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Security hereunder is a
continuing consent by the Holder and every subsequent Holder of that
Security or portion of the Security that evidences the same obligation as
the consenting Holder's Security, even if notation of the consent, waiver
or action is not made on the Security. However, any such Holder or
subsequent Holder may revoke the consent, waiver or action as to such
Holder's Security or portion of the Security if the Trustee receives the
notice of revocation before the date the amendment, waiver or action
becomes effective. After an amendment, waiver or action becomes effective,
it shall bind every Securityholder.
Section 9.5 Notation on or Exchange of Securities.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, 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.
Section 9.6 Trustee to Sign Supplemental Indentures. The
Trustee shall sign any supplemental indenture authorized pursuant to this
Article 9 if the amendment contained therein does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing
such supplemental indenture the Trustee shall receive, and (subject to the
provisions of Section 7.1) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment
is authorized or permitted by this Indenture.
Section 9.7 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.
ARTICLE X
CONVERSIONS
Section 10.1 Conversion Privilege. A Holder of a Security
may convert such Security into shares of CD Common Stock at any time during
the period stated in Paragraph 8 of the Securities. The number of shares of
CD Common Stock issuable upon conversion of a Security per $1,000 of
principal amount thereof (the "Conversion Rate") shall be that set forth in
Paragraph 8 in the Securities, subject to adjustment as herein set forth.
A Holder may convert a portion of the principal amount of
a Security if the portion converted is in a $1,000 principal amount or an
integral multiple of $1,000. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.
In the event that the Ex-Dividend Time (or in the case of
a subdivision, combination or reclassification, the effective date with
respect thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 10.6(1), (2), (3) or (5) applies occurs
during the period applicable for calculating "Average Sale Price" pursuant
to the definition in the preceding sentence, "Average Sale Price" shall be
calculated for such period in a manner determined by the Board of Directors
to reflect the impact of such dividend, subdivision, combination or
reclassification on the Sale Price of the shares of CD Common Stock during
such period.
"Time of Determination" means the time and date of the
earlier of (i) the determination of stockholders entitled to receive
rights, warrants or options or a distribution, in each case, to which
Section 10.7 or 10.8 applies and (ii) the time ("Ex-Dividend Time")
immediately prior to the commencement of "ex-dividend" trading for such
rights, warrants or options or distribution on the NYSE or such other
national or regional exchange or market on which the shares of CD Common
Stock are then listed or quoted.
Section 10.2 Conversion Procedure. To convert a Security
a Holder must satisfy the requirements in Paragraph 8 of the Securities.
The first Business Day on which the Holder satisfies all those requirements
is the conversion date (the "Conversion Date").
As soon as practicable after the Conversion Date, the
Company shall deliver to the Holder, through the Conversion Agent, a
certificate for the number of full shares of CD Common Stock issuable upon
the conversion or exchange and cash in lieu of any fractional share
determined pursuant to Section 10.3. The person in whose name the
certificate is registered shall be treated as a shareholder of record as of
the close of business on the Conversion Date. Upon conversion of a
Security, such person shall no longer be a Holder of such Security.
No payment or adjustment will be made for dividends on,
or other distributions with respect to, any CD Common Stock except as
provided in this Article 10. On conversion of a Security, that portion of
accrued and unpaid interest, if any, through the Conversion Date with
respect to the converted Security shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be paid in full to the Holder
thereof through delivery of the shares of CD Common Stock (together with
the cash payment, if any, in lieu of fractional shares) for the Security
being converted pursuant to the provisions hereof; and the fair market
value of such shares of CD Common Stock (together with any such cash
payment in lieu of fractional shares) shall be treated as issued, to the
extent thereof, first in exchange for accrued and unpaid interest, if any,
through the Conversion Date, and the balance, if any, of such fair market
value of such shares of CD Common Stock (and any such cash payment) shall
be treated as issued for the principal amount of the Security being
converted pursuant to the provisions hereof. The Company will not adjust
the conversion ratio to account for accrued interest, if any. If the Holder
converts more than one Security at the same time, the number of shares of
CD Common Stock issuable upon the conversion shall be based on the total
Accreted Value of the Securities converted.
If the last day on which a Security may be converted is a
Legal Holiday, the Security may be surrendered on the next succeeding day
that is not a Legal Holiday.
Upon surrender of a Security that is converted in part,
the Company shall execute, and the Trustee shall authenticate and deliver
to the Holder, a new Security in an authorized denomination equal in
principal amount to the unconverted portion of the Security surrendered.
Section 10.3 Fractional Shares. Securityholders will not
receive a fractional share upon conversion of a Security. Instead, the
Holder will receive cash for the current market value of the fractional
share. The current market value of a fractional share shall be determined,
to the nearest 1/1,000th of a share, by multiplying the Sale Price, on the
last trading day immediately prior to the Conversion Date, of a full share
by the fractional amount and rounding the product to the nearest whole
cent.
Section 10.4 Taxes on Conversion. If a Holder submits a
Security for conversion, the Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue of shares of CD Common Stock
upon the conversion. However, the Holder shall pay any such tax which is
due because the Holder requests the shares to be issued in a name other
than the Holder's name. The Conversion Agent may refuse to deliver the
certificates representing the shares of CD Common Stock being issued in a
name other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be
issued in a name other than the Holder's name. Nothing herein shall
preclude any tax withholding required by law or regulations.
Section 10.5 Company to Provide Stock. The Company shall,
prior to issuance of any Securities under this Article 10, and from time to
time as may be necessary, reserve out of its authorized but unissued shares
of CD Common Stock a sufficient number of shares of CD Common Stock to
permit the conversion of the Securities.
All shares of CD Common Stock delivered upon conversion
of the Securities shall be newly issued shares or treasury shares, shall be
duly and validly issued and fully paid and nonassessable, and shall be free
from preemptive rights and free of any lien or adverse claim. The Company
will endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of CD Common Stock upon
conversion of Securities, if any, and will list or cause to have quoted
such shares of CD Common Stock on each national securities exchange or in
the over-the-counter market or such other market on which the shares of CD
Common Stock are then listed or quoted.
Section 10.6 Adjustment for Change in Capital Stock. If,
after the Issue Date of the Securities, the Company, or in the case of (6)
below, any Subsidiary of the Company:
(1) pays a dividend or makes another distribution on the
CD Common Stock payable exclusively in shares of CD Common Stock;
(2) subdivides the outstanding shares of CD Common Stock
into a greater number of shares;
(3) combines the outstanding shares of CD Common Stock
into a smaller number of shares;
(4) pays a dividend or makes a distribution on the CD
Common Stock in shares of its Capital Stock (other than CD Common Stock or
rights, warrants or options for its Capital Stock);
(5) pays holders of the CD Common Stock in respect of a
tender or exchange offer, other than an odd-lot offer, for the CD Common
Stock to the extent that the offer involves aggregate consideration that,
together with (i) any cash and the fair market value of any other
consideration payable in respect of any tender offer for shares of the CD
Common Stock consummated within the preceding 12 months not triggering an
adjustment and (ii) all-cash distributions to all or substantially all
stockholders made within the preceding 12 months not triggering an
adjustment, exceeds an amount equal to 10% of the market capitalization of
the CD Common Stock on the expiration date of the tender offer; or
(6) distributes to all or substantially all stockholders
all-cash distributions in an aggregate amount that, together with (i) any
cash and the fair market value of any other consideration payable in
respect of any tender offer by the Company or any of its Subsidiaries for
shares of CD Common Stock consummated within the preceding 12 months not
triggering an adjustment and (ii) all other all-cash distributions to all
or substantially all stockholders made within the preceding 12 months not
triggering an adjustment, exceeds an amount equal to 10% of the market
capitalization of the CD Common Stock on the Business Day immediately
preceding the day on which the Company declares the distribution,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of
the Company which such Holder would have owned immediately following such
action if such Holder had converted the Security immediately prior to such
action.
The adjustment shall become effective immediately after
the record date in the case of a dividend or distribution and immediately
after the effective date in the case of a subdivision, combination or
reclassification.
If after an adjustment a Holder of a Security upon
conversion of such Security may receive shares of two or more classes of
Capital Stock of the Company, the Conversion Rate shall thereafter be
subject to adjustment upon the occurrence of an action taken with respect
to any such class of Capital Stock as is contemplated by this Article 10
with respect to the shares of CD Common Stock, on terms comparable to those
applicable to shares of CD Common Stock in this Article 10.
Section 10.7 Adjustment for Rights Issue. If after the
Issue Date of the Securities, the Company distributes any rights or
warrants to all holders of shares of its CD Common Stock entitling them to
purchase shares of CD Common Stock at a price per share less than the
Average Sale Price as of the Time of Determination, the Conversion Rate
shall be adjusted in accordance with the formula:
R' = R x (O + N)
----------------
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of CD Common Stock outstanding on the
record date for the distribution to which this Section 10.7 is being
applied.
N = the number of additional shares of CD Common Stock offered
pursuant to the distribution.
P = the offering price per share of the additional shares.
M = the Average Sale Price, minus, in the case of (i) a
distribution to which Section 10.6(4) applies or (ii) a distribution to
which Section 10.8 applies, for which, in each case, (x) the record date
shall occur on or before the record date for the distribution to which this
Section 10.7 applies and (y) the Ex-Dividend Time shall occur on or after
the date of the Time of Determination for the distribution to which this
Section 10.7 applies, the fair market value (on the record date for the
distribution to which this Section 10.7 applies) of the
(1) Capital Stock of the Company distributed in respect
of each shares of CD Common Stock in such Section 10.6(4) distribution and
(2) assets of the Company or debt securities or any
rights, warrants or options to purchase securities of the Company
distributed in respect of each shares of CD Common Stock in such Section
10.8 distribution.
The Board of Directors shall determine fair market values
for the purposes of this Section 10.7, except as Section 10.8 otherwise
provides in the case of a spin-off.
"Average Sale Price" means the average of the Sale Prices
of the shares of CD Common Stock for the shorter of
(i) 30 consecutive trading days ending on the last full
trading day prior to the Time of Determination with respect to the
rights, warrants or options or distribution in respect of which
the Average Sale Price is being calculated, or
(ii) the period (x) commencing on the date next
succeeding the first public announcement of (a) the issuance of
rights, warrants or options or (b) the distribution, in each case,
in respect of which the Average Sale Price is being calculated and
(y) proceeding through the last full trading day prior to the Time
of Determination with respect to the rights, warrants or options
or distribution in respect of which the Average Sale Price is
being calculated (excluding days within such period, if any, which
are not trading days), or
(iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time with respect to the next preceding
(a) issuance of rights, warrants or options or (b) distribution,
in each case, for which an adjustment is required by the
provisions of Section 10.6(4), 10.7 or 10.8 and (y) proceeding
through the last full trading day prior to the Time of
Determination with respect to the rights, warrants or options or
distribution in respect of which the Average Sale Price is being
calculated (excluding days within such period, if any, which are
not trading days).
The adjustment shall become effective immediately after
the record date for the determination of shareholders entitled to receive
the rights, warrants or options to which this Section 10.7 applies. If all
of the shares of CD Common Stock subject to such rights, warrants or
options have not been issued when such rights, warrants or options expire,
then the Conversion Rate shall promptly be readjusted to the Conversion
Rate which would then be in effect had the adjustment upon the issuance of
such rights, warrants or options been made on the basis of the actual
number of shares of CD Common Stock issued upon the exercise of such
rights, warrants or options.
No adjustment shall be made under this Section 10.7 if
the application of the formula stated above in this Section 10.7 would
result in a value of R' that is equal to or less than the value of R.
Section 10.8 Adjustment for Other Distributions. If,
after the Issue Date of the Securities, the Company distributes to all
holders of its shares of CD Common Stock any of its debt, securities or
assets or any rights, warrants or options to purchase securities of the
Company (including securities or cash, but excluding (x) distributions of
Capital Stock referred to in Section 10.6 and distributions of rights,
warrants or options referred to in Section 10.7 and (y) cash dividends or
other cash distributions that are paid out of current net earnings or
earnings retained in the business as shown on the books of the Company
unless such cash dividends or other cash distributions are Extraordinary
Cash Dividends) the Conversion Rate shall be adjusted, subject to the
provisions of the last paragraph of this Section 10.8, in accordance with
the formula:
R' = R x M
------
(M-F)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of a distribution
to which Section 10.6(4) applies, for which (i) the record date shall occur
on or before the record date for the distribution to which this Section
10.8 applies and (ii) the Ex-Dividend Time shall occur on or after the date
of the Time of Determination for the distribution to which this Section
10.8 applies, the fair market value (on the record date for the
distribution to which this Section 10.8 applies) of any Capital Stock of
the Company distributed in respect of each share of CD Common Stock in such
Section 10.6(4) distribution.
F = the fair market value (on the record date for the distribution
to which this Section 10.8 applies) of the assets, securities, rights,
warrants or options to be distributed in respect of each share of CD Common
Stock in the distribution to which this Section 10.8 is being applied
(including, in the case of cash dividends or other cash distributions
giving rise to an adjustment, all such cash distributed concurrently).
In the event the Company distributes shares of Capital
Stock of a Subsidiary, the Conversion Rate will be adjusted, if at all,
based on the market value of the Subsidiary stock so distributed relative
to the market value of the CD Common Stock, as discussed below. The Board
of Directors shall determine fair market values for the purposes of this
Section 10.8, except that in respect of a dividend or other distribution of
shares of Capital Stock of any class or series, or similar equity
interests, of or relating to a Subsidiary or other business unit of the
Company (a "Spin-off"), the fair market value of the securities to be
distributed shall equal the average of the daily Sale Prices of those
securities for the five consecutive trading days commencing on and
including the sixth day of trading of those securities after the
effectiveness of the Spin-off and the Average of the Sale Prices shall mean
the average Sale Prices for the CD Common Stock for the same five trading
days. In the event, however, that an underwritten initial public offering
of the securities in the Spin-off occurs simultaneously with the Spin-off,
fair market value of the securities distributed in the Spin-off shall mean
the initial public offering price of such securities and the Average Sale
Price shall mean the Sale Price for the CD Common Stock on the same trading
day.
The adjustment shall become effective immediately after
the record date for the determination of shareholders entitled to receive
the distribution to which this Section 10.8 applies, except that an
adjustment related to a Spin-off shall become effective at the earlier to
occur of (i) 10 trading days after the effective date of the Spin-off and
(ii) the initial public offering of the securities distributed in the
Spin-off.
For purposes of this Section 10.8, the term
"Extraordinary Cash Dividend" shall mean any cash dividend with respect to
the shares of CD Common Stock the amount of which, together with the
aggregate amount of cash dividends on the shares of CD Common Stock to be
aggregated with such cash dividend in accordance with the provisions of
this paragraph, equals or exceeds the threshold percentage set forth in the
following paragraph. For purposes of the following paragraph, the
"Measurement Period" with respect to a cash dividend on the shares of CD
Common Stock shall mean the 365 consecutive day period ending on the date
prior to the Ex-Dividend Time with respect to such cash dividend, and the
"Relevant Cash Dividends" with respect to a cash dividend on the shares of
CD Common Stock shall mean the cash dividends on the shares of CD Common
Stock with Ex-Dividend Times occurring in the Measurement Period.
If, upon the date prior to the Ex-Dividend Time with
respect a cash dividend on the shares of CD Common Stock, the aggregate
amount of such cash dividend together with the amounts of all Relevant Cash
Dividends equals or exceeds on a per share basis 10% of the Sale Price of
the shares of CD Common Stock on the last trading day preceding the date of
declaration by the Board of Directors of the cash dividend with respect to
which this provision is being applied, then such cash dividend together
with all Relevant Cash Dividends, shall be deemed to be an Extraordinary
Cash Dividend and for purposes of applying the formula set forth above in
this Section 10.8, the value of "F" shall be equal to (y) the aggregate
amount of such cash dividend together with the amount of all Relevant Cash
Dividends, minus (z) the aggregate amount of all Relevant Cash Dividends
for which a prior adjustment in the Conversion Rate was previously made
under this Section 10.8.
In making the determinations required by the preceding
paragraph, the amount of cash dividends paid on a per share basis and the
amount of any Relevant Cash Dividends specified in the preceding paragraph,
shall be appropriately adjusted to reflect the occurrence during such
period of any event described in Section 10.6.
In the event that, with respect to any distribution to
which this Section 10.8 would otherwise apply, the difference "M-F" as
defined in the above formula is less than $1.00 or "F" is equal to or
greater than "M", then the adjustment provided by this Section 10.8 shall
not be made and in lieu thereof the provisions of Section 10.14 shall apply
to such distribution.
Section 10.9 When Adjustment May Be Deferred. No
adjustment in the Conversion Rate need be made unless the adjustment would
require an increase or decrease of at least 1% in the Conversion Rate. Any
adjustments that are not made shall be carried forward and taken into
account in any subsequent adjustment.
All calculations under this Article 10 shall be made to
the nearest cent or to the nearest 1/1,000th of a share, as the case may
be.
Section 10.10 When No Adjustment Required. If the Company
adopts a stockholders rights plan under which the Company issues rights
providing that each share of CD Common Stock issued upon conversion of the
Security at any time prior to the distribution of separate certificates
representing the rights will be entitled to receive the rights, no
adjustment need be made as a result of: (i) the issuance of the rights;
(ii) the distribution of separate certificates representing the rights;
(iii) the exercise or redemption of the rights in accordance with any
rights agreement; or (iv) the termination or invalidation of the rights.
No adjustment need be made for a transaction referred to
in 10.7 if Holders of the Securities may participate in the transaction on
a basis and with notice that the Board of Directors determines to be fair
and appropriate in light of the basis and notice on which holders of shares
of CD Common Stock participate in the transaction. No adjustment need be
made for a transaction referred to in 10.8 above if all Holders of the
Securities may participate in the transaction.
No adjustment need be made for a change in the par value
or no par value of the shares of CD Common Stock.
To the extent the Securities become convertible pursuant
to this Article 10 in whole or in part into cash, no adjustment need be
made thereafter as to the cash. Interest will not accrue on the cash.
Section 10.11 Notice of Adjustment. Whenever the
Conversion Rate is adjusted, the Company shall promptly mail to
Securityholders a notice of the adjustment. The Company shall file with the
Trustee and the Conversion Agent such notice and a certificate from the
Company's independent public accountants briefly stating the facts
requiring the adjustment and the manner of computing it. The certificate
shall be conclusive evidence that the adjustment is correct. Neither the
Trustee nor any Conversion Agent shall be under any duty or responsibility
with respect to any such certificate except to exhibit the same to any
Holder desiring inspection thereof.
Section 10.12 Voluntary Increase. The Company from time
to time may increase the Conversion Rate by any amount at any time for at
least 20 days, so long as the increase is irrevocable during such period.
Whenever the Conversion Rate is increased, the Company shall mail to
Securityholders and file with the Trustee and the Conversion Agent a notice
of the increase. The Company shall mail the notice at least 15 days before
the date the increased Conversion Rate takes effect. The notice shall state
the increased Conversion Rate and the period it will be in effect. A
voluntary increase of the Conversion Rate does not change or adjust the
Conversion Rate otherwise in effect for purposes of Section 10.6, 10.7 or
10.8.
Section 10.13 Notice of Certain Transactions. If:
(1) the Company takes any action that would require an
adjustment in the Conversion Rate pursuant to Section 10.6, 10.7 or 10.8
(unless no adjustment is to occur pursuant to Section 10.10); or
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 10.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee
and the Conversion Agent a notice stating the proposed record date for a
dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, binding share
exchange, transfer, liquidation or dissolution. The Company shall file and
mail the notice at least 15 days before such date. Failure to file or mail
the notice or any defect in it shall not affect the validity of the
transaction.
Section 10.14 Reorganization of Company; Special
Distributions. If the Company is a party to a transaction subject to
Section 5.1 (other than a sale of all or substantially all of the assets of
the Company in a transaction in which the holders of shares of CD Common
Stock immediately prior to such transaction do not receive securities, cash
or other assets of the Company or any other person) or a merger or binding
share exchange which reclassifies or changes its outstanding shares of CD
Common Stock, the person obligated to deliver securities, cash or other
assets upon conversion of Securities shall enter into a supplemental
indenture. If the issuer of securities deliverable upon conversion of
Securities is an Affiliate of the successor Company, that issuer shall join
in the supplemental indenture.
The supplemental indenture shall provide that the Holder
of a Security may convert it into the kind and amount of securities, cash
or other assets which such Holder would have received immediately after the
consolidation, merger, binding share exchange or transfer if such Holder
had converted the Security immediately before the effective date of the
transaction, assuming (to the extent applicable) that such Holder (i) was
not a constituent person or an Affiliate of a constituent person to such
transaction; (ii) made no election with respect thereto; and (iii) was
treated alike with the plurality of non-electing Holders. The supplemental
indenture shall provide for adjustments which shall be as nearly equivalent
as may be practical to the adjustments provided for in this Article 10. The
successor Company shall mail to Securityholders a notice briefly describing
the supplemental indenture.
If this Section applies, neither Section 10.6 nor 10.7
applies.
If the Company makes a distribution to all holders of its
shares of CD Common Stock of any of its assets, or debt securities or any
rights, warrants or options to purchase securities of the Company that, but
for the provisions of the last paragraph of Section 10.8, would otherwise
result in an adjustment in the Conversion Rate pursuant to the provisions
of Section 10.8, then, from and after the record date for determining the
holders of shares of CD Common Stock entitled to receive the distribution,
a Holder of a Security that converts such Security in accordance with the
provisions of this Indenture shall upon such conversion be entitled to
receive, in addition to the shares of shares of CD Common Stock into which
the Security is convertible, the kind and amount of securities, cash or
other assets comprising the distribution that such Holder would have
received if such Holder had converted the Security immediately prior to the
record date for determining the holders of shares of CD Common Stock
entitled to receive the distribution.
Section 10.15 Company Determination Final. Any
determination that the Company or the Board of Directors must make pursuant
to Section 10.3, 10.6, 10.7, 10.8, 10.9, 10.10, 10.14 or 10.17 is
conclusive, absent manifest error.
Section 10.16 Trustee's Adjustment Disclaimer. The
Trustee has no duty to determine when an adjustment under this Article 10
should be made, how it should be made or what it should be. The Trustee has
no duty to determine whether a supplemental indenture under Section 10.14
need be entered into or whether any provisions of any supplemental
indenture are correct. The Trustee shall not be accountable for and makes
no representation as to the validity or value of any securities or assets
issued upon conversion of Securities. The Trustee shall not be responsible
for the Company's failure to comply with this Article 10. Each Conversion
Agent shall have the same protection under this Section 10.16 as the
Trustee.
Section 10.17 Simultaneous Adjustments. In the event that
this Article 10 requires adjustments to the Conversion Rate under more than
one of Sections 10.6(4), 10.7 or 10.8, and the record dates for the
distributions giving rise to such adjustments shall occur on the same date,
then such adjustments shall be made by applying, first, the provisions of
Section 10.6, second, the provisions of Section 10.8 and, third, the
provisions of Section 10.7.
Section 10.18 Successive Adjustments. After an adjustment
to the Conversion Rate under this Article 10, any subsequent event
requiring an adjustment under this Article 10 shall cause an adjustment to
the Conversion Rate as so adjusted.
ARTICLE XI
MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies, or conflicts with another
provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 11.2 Notices. Any request, demand, authorization,
notice, waiver, consent or communication shall be in writing and delivered
in person or mailed by first-class mail, postage prepaid, addressed as
follows or transmitted by facsimile transmission (confirmed by guaranteed
overnight courier) to the following facsimile numbers:
if to the Company:
Cendant Corporation.
9 West 57th Street, 43rd Floor
New York, New York 10019
Attn: Secretary
Facsimile No. (212) 413-1922
if to the Trustee:
The Bank of New York
101 Barclay Street
Floor 21W
New York, New York 10286
Telephone No. 212-815-5359
Facsimile No. 212-815-5915
Attention: Corporate Trust Administration
The Company or the Trustee by notice given to the other
in the manner provided above may designate additional or different
addresses for subsequent notices or communications.
Any notice or communication given to a Securityholder
shall be mailed to the Securityholder, by first-class mail, postage
prepaid, at the Securityholder's address as it appears on the registration
books of the Registrar and shall be sufficiently given if so mailed within
the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency with
respect to other Securityholders. If a notice or communication is mailed in
the manner provided above, it is duly given, whether or not received by the
addressee.
If the Company mails a notice or communication to the
Securityholders, it shall mail a copy to the Trustee and each Registrar,
Paying Agent, Conversion Agent or co-registrar.
Section 11.3 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
Section 11.4 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Section 11.5 Statements Required in Certificate or
Opinion. Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture
shall include:
(1) a statement that each person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
Section 11.6 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 11.7 Rules by Trustee, Paying Agent, Conversion
Agent and Registrar. The Trustee may make reasonable rules for action by or
a meeting of Securityholders. The Registrar, the Conversion Agent and the
Paying Agent may make reasonable rules for their functions.
Section 11.8 Legal Holidays. A "Legal Holiday" is any day
other than a Business Day. If any specified date (including a date for
giving notice) is a Legal Holiday, the action shall be taken on the next
succeeding day that is not a Legal Holiday, and, if the action to be taken
on such date is a payment in respect of the Securities, no interest, if
any, shall accrue for the intervening period.
Section 11.9 GOVERNING LAW. THE LAWS OF THE STATE OF NEW
YORK SHALL GOVERN THIS INDENTURE AND THE SECURITIES.
Section 11.10 No Recourse Against Others. A director,
officer, employee or stockholder, as such, of the Company shall not have
any liability for any obligations of the Company under the Securities or
this Indenture or for any claim based on, in respect of or by reason of
such obligations or their creation. By accepting a Security, each
Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
Section 11.11 Successors. All agreements of the Company
in this Indenture and the Securities shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 11.12 Multiple Originals. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement. One signed
copy is enough to prove this Indenture.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date
first above written.
CENDANT CORPORATION
By: /s/ Eric J. Bock
_________________________________
Name: Eric J. Bock
Title:
THE BANK OF NEW YORK
By: /s/ Julie Salovitch-Miller
_________________________________
Name: Julie Salovitch-Miller
Title:
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
THIS SECURITY WILL BE SUBJECT TO THE REGULATIONS
GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES. AS REQUIRED UNDER APPLICABLE TREASURY REGULATIONS, THE
COMPANY HAS SET FORTH THE "COMPARABLE YIELD" IN SECTION 4.7 OF THE
INDENTURE PURSUANT TO WHICH THIS SECURITY IS BEING ISSUED.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE
CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
CENDANT CORPORATION THAT THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN
INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON
ITS CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED
FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS
OF THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE
LAW OR REGULATION (OR INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO
THE RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF
THIS SECURITY AND ANY SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS
SECURITY AND ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT.
The foregoing legend may be removed from this Security on
satisfaction of the conditions specified in the Indenture.
CENDANT CORPORATION
Zero-Coupon Convertible Debentures due 2021
No. CUSIP:
Issue Date: May 4, 2001
Issue Price: $1,000
CENDANT CORPORATION, a Delaware corporation, promises to
pay to Cede & Co. or registered assigns, the principal amount of [
($ )] on May 4, 2021.
This Security shall not bear interest except as specified
on the other side of this Security. This Security is convertible as
specified on the other side of this Security.
Additional provisions of this Security are set forth on
the other side of this Security.
Dated: CENDANT CORPORATION
By: ____________________________
Title: _________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK, as Trustee,
certifies that this is one of the
Securities referred to in the
within-mentioned Indenture.
By __________________________________
Authorized Signatory
Dated:
[FORM OF REVERSE OF GLOBAL SECURITY]
Zero-Coupon Convertible Debentures due 2021
1. Interest.
Except as provided below, this Security shall not bear
interest.
Upward Interest Adjustment. The interest rate on this
Security will be 0% per annum through May 4, 2004. If the average of the
Sale Prices of the Company's CD Common Stock (as defined in the Indenture)
is less than or equal to 60% of $25.59 (the initial conversion price) for
any 20 out of the last 30 trading days ending five days prior to May 4,
2004, then the yield to maturity on this Security will be subject to an
upward interest adjustment for the subsequent six-month period equivalent
to 7% (an "Upward Interest Adjustment").
After May 4, 2004, an Upward Interest Adjustment
equivalent to 7% per annum will be made on each November 4 and May 4 (each,
an "Interest Adjustment Date") for the subsequent six-month period if an
Upward Interest Adjustment is not already in effect and the price of the CD
Common Stock is less than or equal to 60% of the Accreted Conversion Price
(as defined below) of this Security for 20 out of the last 30 trading days
of the semi-annual period ending on the fifth day preceding such November 4
or May 4. If an Upward Interest Adjustment is in effect for a particular
semi-annual period, the Company will pay a portion of the Upward Interest
Adjustment as cash interest at a rate of 0.25% per annum (0.125% per
semi-annual period) of the Accreted Value and the remaining interest will
be accrued and payable at the earlier of maturity or the redemption or the
repurchase of the Securities. As a result, during any semi-annual period in
which an Upward Interest Adjustment is in effect, this Security will
accrete interest at a rate of 6.75% per annum.
After May 4, 2004, if the average of the Sale Prices of
the CD Common Stock is greater than 60% of the Accreted Conversion Price of
this Security for 20 out of the last 30 trading days of the semi-annual
period ending on the fifth day preceding each Interest Adjustment Date,
then the interest rate on this Security for the subsequent six-month period
will be 0% per annum.
"Accreted Conversion Price" means, as of any date, the
Accreted Value of this Security divided by the number of shares of CD
Common Stock issuable upon conversion of this Security on that day.
"Accreted Value" means, as of any date, the sum of the
Issue Price of the Securities and the accrued and unpaid interest as of
such date (excluding any accrued and unpaid interest payable as cash
interest).
The "Sale Price" of the CD Common Stock on any date means
the closing per share sale price (or if no closing sale price is reported,
the average of the bid and ask prices or, if more than one in either case,
the average of the average bid and the average asked prices) on such date
as reported on The New York Stock Exchange or, if the CD Common Stock is
not listed on The New York Stock Exchange as reported by the Nasdaq system.
In the event of any Upward Interest Adjustment, the
Company will disseminate a press release through Dow Jones & Company, Inc.
or Bloomberg Business News containing this information or publish the
information on the Company's Web site or through such other public medium
as the Company may use at that time.
Tax Event. From and after the date of the occurrence of a
Tax Event, the Company will have the option to elect to pay cash interest
at a rate of 7% per annum on this Security instead of accruing interest
pursuant to an Upward Interest Adjustment. Following the Company's election
to pay cash interest following a Tax Event, interest will be payable on the
Accreted Value of the Securities as of the date of the Company's election
(the "Option Exercise Date").
Such interest shall accrue from the Option Exercise Date
and will be payable semiannually on interest payment dates of November 4
and May 4 of each year to Holders of record at the close of business on
October 4 or April 4 immediately preceding the interest payment date.
Interest will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the Option Exercise Date.
A "Tax Event" means that the Company shall have received
an opinion from a nationally recognized independent tax counsel experienced
in such matters to the effect that as a result of:
(i) any amendment to, or change (including any announced
prospective change (which will not include a proposed change),
provided that a Tax Event will not occur more than 90 days before
the effective date of any prospective change) in, the laws (or any
regulations thereunder) of the United States or any political
subdivision; or taxing authority of the United States or any
political subdivision; or
(ii) any judicial decision or official administrative
pronouncement, ruling, regulatory procedure, notice or
announcement, including any notice or announcement of intent to
adopt such procedures or regulations (an "Administrative Action");
or
(iii) any amendment to or change in the administrative
position or interpretation of any Administrative Action or
judicial decision that differs from the theretofore generally
accepted position, in each case, by any legislative body, court,
government agency or regulatory body, irrespective of the manner
in which such amendment or change is made known, which amendment
or change is effective or such Administrative Action or decision
is announced, in each case, on or after the Issue Date;
there is more than an insubstantial risk that interest, including original
issue discount, on this Security either:
(x) would not be deductible on a current accrual basis;
or
(y) would not be deductible under any other method, in
either case in whole or in part, by the Company for United States
federal income tax purposes.
General. If this Security is redeemed on a date that is
after the record date and prior to the corresponding interest payment date,
interest, if any, accrued and unpaid hereon to but not including the
applicable Redemption Date will be paid to the same Holder to whom the
Company pays the principal of this Security.
Cash interest on Securities converted after a record date
but prior to the corresponding interest payment date will be paid to the
Holder of the Securities on the record date but, upon conversion the Holder
must pay the Company the interest which has accrued and will be paid on
such interest payment date. No such payment need be made with respect to
Securities which will be redeemed after a record date and prior to the
corresponding interest payment date.
Except as provided below, interest will be paid (i) on
the Global Securities to DTC in immediately available funds, (ii) on the
definitive Securities having an aggregate principal amount of $5,000,000 or
less, by check mailed to the Holders of such Securities; and (iii) on the
definitive Securities having an aggregate principal amount of more than
$5,000,000, by wire transfer in immediately available funds at the election
of the Holders of these Securities.
If the principal amount hereof or any portion of such
principal amount is not paid when due (whether upon acceleration pursuant
to Section 6.2 of the Indenture, upon the date set for payment of the
Redemption Price pursuant to Paragraph 6 hereof or upon the Stated Maturity
of this Security), then in each such case the overdue amount shall, to the
extent permitted by law, bear interest at the rate of 2.50% per annum,
compounded semi-annually, which interest shall accrue from the date of such
overdue amount was originally due to the date of payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.
Any Interest payable hereunder will be computed based on
a 360-day year of twelve 30-day months. Cash interest, if any, will be
payable semi-annually in arrears on each November 4 and May 4 (each an
"interest payment date"). The record date for the payment of cash interest
to Holders will be the close of business on October 4 and April 4 of each
year (whether or not a Business Day); provided, that interest payable at
Stated Maturity or upon redemption or repurchase will be payable to the
person to whom principal is payable. The Company will give notice to the
Holders, no later than 30 days prior to each record date, of the amount of
cash interest to be paid as of the next interest payment date.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the
Company will make payments in cash, shares of CD Common Stock or a
combination thereof, as the case may be, in respect of Redemption Prices,
Purchase Prices, Change in Control Purchase Prices and at Stated Maturity
to Holders who surrender Securities to a Paying Agent to collect such
payments in respect of the Securities. The Company will pay cash amounts in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may make such
cash payments by check payable in such money.
3. Paying Agent, Conversion Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act
as Paying Agent, Conversion Agent and Registrar. The Company may appoint
and change any Paying Agent, Conversion Agent or Registrar without notice,
other than notice to the Trustee; provided that the Company will maintain
at least one Paying Agent in the State of New York, City of New York,
Borough of Manhattan, which shall initially be an office or agency of the
Trustee. The Company or any of its Subsidiaries or any of their Affiliates
may act as Paying Agent, Conversion Agent or Registrar.
4. Indenture.
The Company issued the Securities under an Indenture
dated as of May 4, 2001 (the "Indenture"), between the Company and the
Trustee. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture
Act of 1939, as in effect from time to time (the "TIA"). Capitalized terms
used herein and not defined herein have the meanings ascribed thereto in
the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the TIA for a statement
of those terms.
The Securities are general unsecured obligations of the
Company limited to $1,000,000,000 aggregate principal amount (subject to
Section 2.7 of the Indenture, Upward Interest Adjustments and the Company
exercising its option to pay cash interest upon the occurrence of a Tax
Event). The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The
Securities are redeemable at the option of the Company in whole or in part,
at any time or from time to time on, or after May 4, 2004 upon not less
than 15 nor more than 60 days' notice by mail for a cash price equal to the
Accreted Value plus accrued and unpaid cash interest, if any, up to the
Redemption Date (the "Redemption Price").
6. Purchase By the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase, at the option of the Holder,
all or any portion of the Securities held by such Holder on May 4, 2002,
May 4, 2004, May 4, 2006, May 4, 2008, May 4, 2011 and May 4, 2016 in
integral multiples of $1,000 at a Purchase Price equal to the Accreted
Value plus accrued and unpaid cash interest, if any, on the Purchase Date.
To exercise such right, a Holder shall deliver to the Company a Purchase
Notice containing the information set forth in the Indenture, at any time
from the opening of business on the date that is 20 Business Days prior to
such Purchase Date until the close of business on the last day prior to
such Purchase Date, and shall deliver the Securities to the Paying Agent as
set forth in the Indenture.
The Purchase Price may be paid, at the option of the
Company, in cash or by the issuance and delivery of shares of CD Common
Stock, or in any combination thereof.
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to offer to
purchase the Securities held by such Holder within 30 days (which purchase
shall occur 45 days after the date of such offer) after the occurrence of a
Change in Control of the Company for a Change in Control Purchase Price
equal to the Accreted Value plus accrued and unpaid cash interest, if any,
on the Change in Control Purchase Date, which Change in Control Purchase
Price shall be paid in cash.
Holders have the right to withdraw any Purchase Notice or
Change in Control Purchase Notice, as the case may be, by delivering to the
Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
If cash (and/or CD Common Stock if permitted under the
Indenture) sufficient to pay the Purchase Price or Change in Control
Purchase Price, as the case may be, of all Securities or portions thereof
to be purchased as of the Purchase Date or the Change in Control Purchase
Date, as the case may be, is deposited with the Paying Agent on the
Business Day following the Purchase Date or the Change in Control Purchase
Date and other interest ceases to accrue on such Securities (or portions
thereof) immediately after such Purchase Date or Change in Control Purchase
Date, and the Holder thereof shall have no other rights as such other than
the right to receive the Purchase Price or Change in Control Purchase Price
upon surrender of such Security.
7. Notice of Redemption.
Notice of redemption pursuant to Paragraph 5 of this
Security will be mailed at least 15 days but not more than 60 days before
the Redemption Date to each Holder of Securities to be redeemed at the
Holder's registered address. If money sufficient to pay the Redemption
Price of all Securities (or portions thereof) to be redeemed on the
Redemption Date is deposited with the Paying Agent prior to or on the
Redemption Date, immediately after such Redemption Date interest ceases to
accrue on such Securities or portions thereof. Securities in denominations
larger than $1,000 of principal amount may be redeemed in part but only in
integral multiples of $1,000 of principal amount.
8. Conversion.
Holders may surrender Securities for conversion into
shares of CD Common Stock if the Sale Price of the CD Common Stock for at
least 20 trading days in the 30 day period ending on the first day of such
Conversion Period is more than 110% of the Accreted Conversion Price per
share of the CD Common Stock on the first day of the Conversion Period. A
"Conversion Period" will be the period from and including the twelfth
trading day in a fiscal quarter to but not including the twelfth trading
day in the immediately following fiscal quarter. A Holder may also
surrender for conversion a Security or portion of a Security which has been
called for redemption pursuant to Paragraph 5 hereof, even if the foregoing
provision has not been satisfied, and such Securities may be surrendered
for conversion until the close of business on the day that is two Business
Days prior to the Redemption Date.
Holders may also surrender Securities for conversion into
shares of CD Common Stock during the five business day period following any
consecutive 20 trading-day period in which the average of the trading
prices for a Security was less than 95% of the average Parity Value for
that period. The "trading price" of the Securities on any date of
determination means the average of the secondary market bid quotations per
Security obtained by The Bank of New York for $10,000,000 principal amount
at maturity of the Securities at approximately 3:30 p.m., New York City
time, on such determination date from three independent nationally
recognized securities dealers selected by the Company; provided that if at
least three such bids cannot reasonably be obtained by The Bank of New
York, but two such bids are obtained, then the average of the two bids
shall be used, and if only one such bid can reasonably be obtained by The
Bank of New York, this one bid shall be used. If The Bank of New York
cannot reasonably obtain at least one bid for $10,000,000 principal amount
of maturity of the Securities from a nationally recognized securities
dealer or in the reasonable judgment of the Company, the bid quotations are
not indicative of the secondary market value of the Securities, then the
trading price of the Securities will equal (a) the then-applicable
conversion rate of the Securities multiplied by (b) the closing price on
the New York Stock Exchange of our CD Common Stock on such determination
date. The "Parity Value" of the Securities on any date of determination
means the product of (x) the sale price of the Securities on such date and
(y) the number of shares of CD Common Stock into which such Securities are
convertible on such date.
In the event that the Company declares a dividend or
distribution described in Section 10.7 of the Indenture, or a dividend or a
distribution described in Section 10.8 of the Indenture where the fair
market value of such dividend or distribution per share of CD Common Stock,
as determined in the Indenture, exceeds 10% of the Sale Price of a share of
CD Common Stock as of the Business Day prior to the date of declaration for
such distribution, except in relation to any distribution of assets, debt
securities or rights to purchase securities of Cendant Membership Services,
Inc. or successor to Cendant Membership Services, Inc., the Securities may
be surrendered for conversion beginning on the date the Company gives
notice to the Holders of such right, which shall be not less than 20 days
prior to the Ex-Dividend Time for such dividend or distribution and
Securities may be surrendered for conversion at any time thereafter until
the close of business on the Business Day prior to the Ex-Dividend Time or
until the Company announces that such distribution will not take place.
In addition, a Holder may surrender for conversion a
Security or portion of a Security during such period, if any, as (i) the
credit rating assigned to the Securities by both Moody's Investor Services
and Standard & Poor's Rating Group is below Baa3 and BBB-, respectively,
(ii) the credit rating assigned to the Securities by both such rating
agencies is suspended or withdrawn or (iii) neither such rating agency is
then rating the Securities.
Finally, in the event the Company is a party to a
consolidation, merger or binding share exchange pursuant to which the
shares of CD Common Stock would be converted into cash, securities or other
property as set forth in Section 10.14 of the Indenture, the Securities may
be surrendered for conversion at any time from and after the date which is
15 days prior to the date the Company announces as the anticipated
effective time until 15 days after the actual date of such transaction.
A Security in respect of which a Holder has delivered a
Purchase Notice or Change in Control Purchase Notice exercising the option
of such Holder to require the Company to purchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with
the terms of the Indenture.
The initial Conversion Rate is 39.0755 shares of CD
Common Stock per $1,000 principal amount, subject to adjustment in certain
events described in the Indenture. A Holder which surrenders Securities for
conversion will receive cash or a check in lieu of any fractional share of
CD Common Stock.
To surrender a Security for conversion, a Holder must (1)
complete and manually sign the irrevocable conversion notice below (or
complete and manually sign a facsimile of such notice) and deliver such
notice to the Conversion Agent, (2) surrender the Security to the
Conversion Agent, (3) furnish appropriate endorsements and transfer
documents and (4) pay any transfer or similar tax, if required.
A Holder may convert a portion of a Security if the
principal amount of such portion is $1,000 or an integral multiple of
$1,000. No payment or adjustment will be made for dividends on the shares
of CD Common Stock except as provided in the Indenture. Except as provided
in Paragraph 1 hereof, on conversion of a Security, the Holder will not
receive any cash payment representing accrued interest with respect to the
converted Securities. Instead, upon conversion the Company will deliver to
the Holder a fixed number of shares of CD Common Stock and any cash payment
to account for fractional shares. Accrued interest will be deemed paid in
full rather than canceled, extinguished or forfeited. The Company will not
adjust the Conversion Rate to account for accrued interest.
The Conversion Rate will be adjusted as provided in
Article 10 of the Indenture. The Company may increase the Conversion Rate
for at least 20 days, so long as the increase is irrevocable during such
period.
If the Company is a party to a consolidation, merger or
binding share exchange or a transfer of all or substantially all of its
assets, or upon certain distributions described in the Indenture, the right
to convert a Security into shares of CD Common Stock may be changed into a
right to convert it into securities, cash or other assets of the Company or
another person.
9. Conversion Arrangement on Call for Redemption.
Any Securities called for redemption, unless surrendered
for conversion before the close of business on the day that is two Business
Days prior to the Redemption Date, may be deemed to be purchased from the
Holders of such Securities at an amount not less than the Redemption Price,
by one or more investment bankers or other purchasers who may agree with
the Company to purchase such Securities from the Holders, to convert them
into shares of CD Common Stock and to make payment for such Securities to
the Trustee in trust for such Holders.
10. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without
coupons, in denominations of $1,000 of principal amount and integral
multiples of $1,000. A Holder may transfer or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not transfer or exchange any Securities
selected for redemption (except, in the case of a Security to be redeemed
in part, the portion of the Security not to be redeemed) or any Securities
in respect of which a Purchase Notice or Change in Control Purchase Notice
has been given and not withdrawn (except, in the case of a Security to be
purchased in part, the portion of the Security not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
11. Persons Deemed Owners.
The registered Holder of this Security may be treated as
the owner of this Security for all purposes.
12. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the
Company upon written request any money or securities held by them for the
payment of any amount with respect to the Securities that remains unclaimed
for two years, subject to applicable unclaimed property law. After return
to the Company, Holders entitled to the money or securities must look to
the Company for payment as general creditors unless an applicable abandoned
property law designates another person.
13. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture,
(i) the Indenture or the Securities may be amended with the written consent
of the Holders of at least a majority in aggregate principal amount of the
Securities at the time outstanding and (ii) certain Defaults may be waived
with the written consent of the Holders of a majority in aggregate
principal amount of the Securities at the time outstanding. Subject to
certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities so long as such changes, other that those in clause (ii) below,
do not materially and adversely affect the interest of Securityholders,
among other things, (i) to cure any ambiguity, omission, defect or
inconsistency, (ii) to comply with Article 5 or Section 10.14 of the
Indenture, (iii) to secure the Company's obligations or to add any
guarantee under the Securities and the Indenture; (iv) to add to the
covenants of the Company for the benefit of Securityholders or to surrender
any right or power conferred upon the Company, (v), to comply with any
requirement of the SEC in connection with the qualification of the
Indenture under the TIA, (vi) to provide for uncertificated Securities,
(vii) to modify the restrictions on resales and other transfers of the
Securities and any shares of Common Stock issuable upon conversion thereof,
or (viii) to make any change that does not adversely affect the rights of
any Securityholder.
14. Defaults and Remedies.
Under the Indenture, Events of Default include (i)
default in payment of the Accreted Value, Redemption Price, Purchase Price
or Change in Control Purchase Price, as the case may be, in respect of the
Securities when the same becomes due and payable, (ii) default in the
payment of interest, if any, when due and payable, subject to lapse of
time, (iii) failure by the Company to comply with other agreements in the
Indenture or the Securities, subject to notice and lapse of time; (iv)
default by the Company under any instrument or instruments under which
there is or may be secured or evidenced any Indebtedness of the Company
(other than the Securities) having an outstanding principal amount of
$50,000,000 (or its foreign currency equivalent) or more, individually or
in the aggregate, that has caused the holders thereof to declare such
Indebtedness to be due and payable prior to its Stated Maturity, unless
such declaration has been rescinded within 30 days, (v) a default by the
Company in the payment when due of the principal of any bond, debenture,
note or other evidence of the Company's Indebtedness, in each case for
money borrowed, or in the payment of principal under any mortgage,
indenture, agreement or instrument under which there may be issued or by
which there may be secured or evidenced any Indebtedness of the Company for
money borrowed, which default for payment of principal is, individually or
in an aggregate principal amount exceeding $50,000,000 (or its foreign
currency equivalent) when such Indebtedness becomes due and payable
(whether at maturity, upon redemption or acceleration or otherwise), if
such default shall continue unremedied or unwaived for more than 30 days
after the expiration of any grace period or extension of the time for
payment applicable thereto; and (vi) certain events of bankruptcy,
insolvency and reorganization.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives reasonable
indemnity or security. Subject to certain limitations, Holders of a
majority in aggregate principal amount of the Securities at the time
outstanding may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Securityholders notice of any continuing
Default (except a Default in payment of amounts specified in clause (ii)
above) if it determines that withholding notice is in their interests.
15. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the
Trustee under the Indenture, in its individual or any other capacity, may
become the owner or pledgee of Securities and may otherwise deal with and
collect obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee.
16. Calculations in Respect of Securities.
The Company will be responsible for making all
calculations called for under the Securities including, but not limited to,
determination of the market prices for the Securities and of the CD Common
Stock and the amounts of cash interest payments, if any. Any calculations
made in good faith and without manifest error will be final and binding on
Holders of the Securities. The Company will be required to deliver to the
Trustee a schedule of its calculations and the Trustee will be entitled to
rely upon the accuracy of such calculations without independent
verification.
17. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of
the Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect
of or by reason of such obligations or their creation. By accepting a
Security, each Securityholder waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the
Securities.
18. Authentication.
This Security shall not be valid until an authorize
signatory of the Trustee manually signs the Trustee's Certificate of
Authentication on the other side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM (=tenants in common), TEN
ENT (=tenants by the entireties), JT TEN (=joint tenants with right of
survivorship and not as tenants in common), CUST (=custodian), and U/G/M/A
(=Uniform Gift to Minors Act).
20. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INDENTURE AND THIS SECURITY.
The Company will furnish to any Securityholder upon
written request and without charge a copy of the Indenture which has in it
the text of this Security in larger type. Requests may be made to:
Cendant Corporation
One Campus Drive
Parsippany, New Jersey 07054
Attn: Lynn Feldman, Esq.
21. Registration Rights.
The Holders of the Securities are entitled to the
benefits of a Resale Registration Rights Agreement, dated as of May 4,
2001, between the Company and Goldman, Sachs & Co., including the receipt
of liquidated damages upon a registration default (as defined in such
agreement).
- ------------------------------------------------------------------------------------------------------
ASSIGNMENT FORM CONVERSION NOTICE
- ------------------------------------------------------------------------------------------------------
To assign this Security, fill in the form below: To convert this Security into CD Common
Stock of the Company, check the box [ ]
- ------------------------------------------------------------------------------------------------------
I or we assign and transfer this Security to To convert only part of this Security,
_________________________ state the principal amount to be converted
_________________________ (which must be $1,000 or an integral
(Insert assignee's soc. sec. or tax ID no.) multiple of $1,000):
_________________________
_________________________ If you want the stock certificate made out
_________________________ in another person's name fill in the form
(Print or type assignee's name, address and zip below:
code) _________________________
_________________________
and irrevocably appoint (Insert the other person's soc. sec. tax
ID no.)
____________________ agent to transfer this
Security on the books of the Company. The __________________________
agent may substitute another to act for him. __________________________
__________________________
(Print or type other person's name,
address and zip code)
- ------------------------------------------------------------------------------------------------------
Date: __________ Your Signature: _____________________
- --------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed
- --------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By: _____________________________
Authorized Signatory
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY
Initial Principal Amount of Global Security: ____________($___________).
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Date Amount of Increase Amount of Decrease in Principal Amount of Notation by
in Principal Amount Principal Amount of Global Security Registrar or
of Global Security Global Security After Increase or Security Custodian
Decrease
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
- ------------------------- ---------------------- ----------------------- ---------------------- ----------------------
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EXHIBIT A-2
[FORM OF FACE OF CERTIFICATED SECURITY]
THIS SECURITY WILL BE SUBJECT TO THE REGULATIONS
GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES. AS REQUIRED UNDER APPLICABLE TREASURY REGULATIONS, THE
COMPANY HAS SET FORTH THE "COMPARABLE YIELD" IN SECTION 4.7 OF THE
INDENTURE PURSUANT TO WHICH THIS SECURITY IS BEING ISSUED.
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE
CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION
FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF
CENDANT CORPORATION THAT THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (2) PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN
INSTITUTIONAL INVESTOR THAT IS AN "ACCREDITED INVESTOR" WITHIN THE MEANING
OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
The foregoing legend may be removed from this Security on
satisfaction of the conditions specified in the Indenture.
CENDANT CORPORATION
Zero-Coupon Convertible Debentures due 2021
No. CUSIP:
Issue Date: May 4, 2001
Issue Price: $1,000
CENDANT CORPORATION, a Delaware corporation, promises to
pay to ___________________. or registered assigns, the principal amount of
[ ($ ) on May 4, 2021.
This Security shall not bear interest except as specified
on the other side of this Security. This Security is convertible as
specified on the other side of this Security.
Additional provisions of this Security are set forth on
the other side of this Security.
Dated: CENDANT CORPORATION
By: _______________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK, as Trustee,
certifies that this is one of the
Securities referred to in the
within-mentioned Indenture.
By ________________________
Authorized Signatory
Dated:
[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A-1]
EXHIBIT B-1
Zero-Coupon Convertible Debentures due 2021
Transfer Certificate
In connection with any transfer of any of the Securities
within the period prior to the expiration of the holding period applicable
to the sales thereof under Rule 144(k) under the Securities Act of 1933, as
amended (the "Securities Act") (or any successor provision), 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:
[_] A transfer of the Surrendered Securities is made
to the Company or any subsidiaries; or
[_] The transfer of the Surrendered Securities
complies with Rule 144A under the U.S. Securities
Act of 1933, as amended (the "Securities Act");
or
[_] The transfer of the Surrendered Securities is
pursuant to an effective registration statement
under the Securities Act, or
[_] The transfer of the Surrendered Securities is
pursuant to another available exemption from the
registration requirement of the Securities Act.
and unless the box below is checked, the undersigned
confirms that, to the undersigned's knowledge, such Securities are not
being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act (an "Affiliate").
[_] The transferee is an Affiliate of the Company.
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.)
Signature Guaranteed
- --------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By: _____________________________
Authorized Signatory
EXHIBIT 99.1
Cendant Completes Previously Announced Zero-Coupon Zero-Yield Convert
ible Notes Offering
NEW YORK, NY, May 4, 2001 -- Cendant Corporation (NYSE: CD - news) today
announced that it has completed the previously announced sale of $800
million of zero-coupon zero-yield senior convertible notes due 2021 in a
private offering through Goldman Sachs resulting in gross proceeds of
approximately $800 million. The underwriter will also have a 30-day option
to purchase up to an additional $200 million principal amount of notes to
cover over-allotments. Cendant will use the proceeds for general corporate
purposes and to repay certain debt.
The notes will be convertible into shares of Cendant common stock at a
price per share of $25.59 if the closing price of Cendant's common shares
on the New York Stock Exchange exceeds specified levels or in certain other
circumstances. The conversion price represents a 41% conversion premium on
the April 27, 2001 New York Stock Exchange closing price of $18.15 for
Cendant common shares. At the time of conversion, each $1,000 principal
amount at maturity note will be convertible into 39.0755 shares of Cendant
common stock. The notes will not be redeemable by Cendant prior to May
2004. Cendant may be required to repurchase notes, at the option of the
holders, at certain specified times prior to 2021 but not prior to May
2002. Cendant may choose to pay the purchase price for the foregoing
repurchases in cash or shares of Cendant common stock, or a combination
thereof.
Cendant Corporation is a diversified global provider of business and
consumer services primarily within the real estate and travel sectors. The
Company's fee-for-service businesses include hotel, real estate and tax
preparation franchising; rental cars, fleet leasing and fuel cards;
mortgage origination and employee reloca tion; customer loyalty programs;
vacation exchange and rental services and vacation interval sales. Other
business units include the UK's largest private car park operator and
electronic reservations processing for the travel industry. With
headquarters in New York City, the Company has approximately 60,000
employees and operates in over 100 countries.
Media Contact:
Elliot Bloom
212-413-1832
Investor Contacts:
Denise Gillen
212-413-1833
Sam Levenson
212-413-1834
