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Exhibit 10.26
ST. MARY LAND & EXPLORATION COMPANY
5.75% Senior CONVERTIBLE Notes
DUE 2022
INDENTURE
Dated as of March 13, 2002
WELLS FARGO BANK WEST, N.A..
as Trustee
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CROSS-REFERENCE TABLE*
TIA Section Indenture Section
Section 310(a)(1).........................................................9.10
(a)(2)............................................................9.10
(a)(3)..........................................................N.A.**
(a)(4)............................................................N.A.
(a)(5)............................................................9.10
(b)..........................................................9.8; 9.10
(c)...............................................................N.A.
Section 311(a)............................................................9.11
(b)...............................................................9.11
(c)...............................................................N.A.
Section 312(a).............................................................2.5
(b)...............................................................13.3
(c)...............................................................13.3
Section 313(a).............................................................9.6
(b)(1)............................................................N.A.
(b)(2).............................................................9.6
(c)..........................................................9.6; 13.2
(d)................................................................9.6
Section 314(a).............................................6.2; 6.3, 6.4; 13.2
(b)...............................................................N.A.
(c)(1).........................................................13.4(a)
(c)(2).........................................................13.4(a)
(c)(3)............................................................N.A.
(d)...............................................................N.A.
(e)............................................................13.4(b)
(f)...............................................................N.A.
Section 315(a)..........................................................9.1(b)
(b)..........................................................9.5; 13.2
(c).............................................................9.1(a)
(d).............................................................9.1(c)
(e)...............................................................8.11
Section 316(a)(last sentence)..............................................2.9
(a)(1)(A)..........................................................8.5
(a)(1)(B)..........................................................8.4
(a)(2)............................................................N.A.
(b)................................................................8.7
(c)...............................................................13.5
Section 317(a)(1)..........................................................8.8
(a)(2).............................................................8.9
(b)................................................................2.4
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* This Cross-Reference Table shall not, for any purpose, be deemed a part of
this Indenture.
** N.A. means Not Applicable.
TABLE OF CONTENTS
Article I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.......................................................1
Section 1.2 Other Definitions.................................................7
Section 1.3 Trust Indenture Act Provisions....................................8
Section 1.4 Rules of Construction.............................................8
Article II
THE SECURITIES
Section 2.1 Form and Dating..................................................9
Section 2.2 Execution and Authentication....................................10
Section 2.3 Registrar, Paying Agent and Conversion Agent....................10
Section 2.4 Paying Agent To Hold Money in Trust.............................11
Section 2.5 Securityholder Lists............................................11
Section 2.6 Transfer and Exchange...........................................11
Section 2.7 Replacement Securities..........................................13
Section 2.8 Outstanding Securities..........................................13
Section 2.9 Treasury Securities.............................................14
Section 2.10 Temporary Securities............................................14
Section 2.11 Cancellation....................................................14
Section 2.12 Additional Transfer and Exchange Requirements...................14
Section 2.13 CUSIP Numbers...................................................20
Article III
REDEMPTION
Section 3.1 Right to Redeem; Notice to Trustee..............................20
Section 3.2 Selection of Securities to be Redeemed..........................21
Section 3.3 Notice of Redemption............................................21
Section 3.4 Effect of Notice of Redemption..................................22
Section 3.5 Deposit of Redemption Price.....................................22
Section 3.6 Securities Redeemed in Part.....................................23
Section 3.7 Conversion Arrangement on Call For Redemption...................23
Article IV
CONVERSION
Section 4.1 Conversion Privilege............................................24
Section 4.2 Conversion Procedure............................................25
Section 4.3 Fractional Shares...............................................26
Section 4.4 Taxes on Conversion.............................................26
Section 4.5 Company to Provide Stock........................................26
Section 4.6 Adjustment of Conversion Price..................................27
Section 4.7 No Adjustment...................................................31
ii
Section 4.8 Adjustment for Tax Purposes.....................................31
Section 4.9 Notice of Adjustment............................................31
Section 4.10 Notice of Certain Transactions..................................31
Section 4.11 Effect of Reclassification, Consolidation,
Merger or Sale on Conversion Privilege..........................32
Section 4.12 Trustee's Disclaimer............................................33
Section 4.13 Voluntary Reduction.............................................33
Article V
REPURCHASE OF SECURITIES AT OPTION OF
THE HOLDER ON SPECIFIC DATES
Section 5.1 Optional Put....................................................33
Section 5.2 The Company's Right to Elect Manner of Payment
of Optional Repurchase Price on March 20, 2007..................35
Section 5.3 Purchase with Cash..............................................36
Section 5.4 Payment by Issuance of Shares of Common
Stock on March 20, 2007.........................................36
Section 5.5 Notice of Election..............................................38
Section 5.6 Covenants of the Company........................................39
Section 5.7 Procedure upon Repurchase.......................................39
Section 5.8 Taxes...........................................................40
Section 5.9 Effect of Optional Repurchase Notice............................40
Section 5.10 Deposit of Optional Repurchase Price............................41
Section 5.11 Securities Repurchased in Part..................................41
Section 5.12 Comply with Securities Laws Upon Purchase of Securities.........41
Section 5.13 Repayment to the Company........................................42
Section 5.14 Conversion Arrangement on Repurchase............................42
Article VI
COVENANTS
Section 6.1 Payment of Securities...........................................42
Section 6.2 SEC Reports.....................................................43
Section 6.3 Compliance Certificates.........................................43
Section 6.4 Further Instruments and Acts....................................43
Section 6.5 Maintenance of Corporate Existence..............................43
Section 6.6 Rule 144A Information Requirement...............................43
Section 6.7 Stay, Extension and Usury Laws..................................44
Section 6.8 Payment of Liquidated Damages...................................44
Section 6.9 Resale of Certain Securities....................................44
Section 6.10 Tax Treatment of Securities.....................................44
Article VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 7.1 Company May Consolidate, Etc. Only on Certain Terms.............45
Section 7.2 Successor Substituted...........................................46
iii
Article VIII
DEFAULT AND REMEDIES
Section 8.1 Events of Default...............................................46
Section 8.2 Acceleration....................................................47
Section 8.3 Other Remedies..................................................48
Section 8.4 Waiver of Defaults and Events of Default........................48
Section 8.5 Control By Majority.............................................48
Section 8.6 Limitations on Suits............................................49
Section 8.7 Rights of Holders to Receive Payment and to Convert.............49
Section 8.8 Collection Suit By Trustee......................................49
Section 8.9 Trustee May File Proofs of Claim................................50
Section 8.10 Priorities......................................................50
Section 8.11 Undertaking for Costs...........................................50
Article IX
TRUSTEE
Section 9.1 Duties of Trustee...............................................51
Section 9.2 Rights of Trustee...............................................52
Section 9.3 Individual Rights of Trustee....................................53
Section 9.4 Trustee's Disclaimer............................................53
Section 9.5 Notice of Default or Events of Default..........................53
Section 9.6 Reports By Trustee To Holders...................................53
Section 9.7 Compensation and Indemnity......................................53
Section 9.8 Replacement of Trustee..........................................54
Section 9.9 Successor Trustee By Merger, Etc................................55
Section 9.10 Eligibility; Disqualification...................................55
Section 9.11 Preferential Collection of Claims Against Company...............56
Article X
SATISFACTION AND DISCHARGE OF INDENTURE
Section 10.1 Satisfaction and Discharge of Indenture.........................56
Section 10.2 Application of Trust Money......................................57
Section 10.3 Repayment To Company............................................57
Section 10.4 Reinstatement...................................................57
Article XI
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 11.1 Without Consent of Holders......................................58
Section 11.2 With Consent of Holders.........................................58
Section 11.3 Compliance With Trust Indenture Act.............................59
Section 11.4 Revocation and Effect of Consents...............................59
Section 11.5 Notation on or Exchange of Securities...........................59
Section 11.6 Trustee To Sign Amendments, Etc.................................60
iv
Article XII
REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF CONTROL
Section 12.1 Change in Control Put...........................................60
Section 12.2 Effect of Change in Control Repurchase Notice...................63
Section 12.3 Deposit of Change in Control Repurchase Price...................64
Section 12.4 Securities Purchased in Part....................................64
Section 12.5 Compliance with Securities Laws Upon Purchase of Securities.....64
Section 12.6 Repayment to the Company........................................64
Article XIII
MISCELLANEOUS
Section 13.1 Trust Indenture Act Controls....................................65
Section 13.2 Notices.........................................................65
Section 13.3 Communications By Holders With Other Holders....................66
Section 13.4 Certificate and Opinion as to Conditions Precedent..............66
Section 13.5 Record Date for Vote or Consent of Securityholders..............66
Section 13.6 Rules By Trustee, Paying Agent, Registrar and Conversion Agent..67
Section 13.7 Legal Holidays..................................................67
Section 13.8 Governing Law...................................................67
Section 13.9 No Adverse Interpretation of Other Agreements...................67
Section 13.10 No Recourse Against Others......................................67
Section 13.11 Successors......................................................67
Section 13.12 Multiple Counterparts...........................................67
Section 13.13 Separability....................................................67
Section 13.14 Table of Contents, Headings, Etc................................68
EXHIBITS
Form of Security.............................................................A-1
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THIS INDENTURE dated as of March 13, 2002 is between St. Mary Land
& Exploration Company, a Delaware corporation (the "Company"), and Wells
Fargo Bank West, N.A., a national banking association, as Trustee (the
"Trustee").
In consideration of the premises and the purchase of the Securities by
the Holders thereof, both parties agree as follows for the benefit of the other
and for the equal and ratable benefit of the registered Holders of the Company's
5.75% Senior Convertible Notes due 2022.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Affiliate" means, with respect to any specified person, 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 person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar, Paying Agent or Conversion Agent.
"Applicable Procedures" means, with respect to any transfer or exchange
of beneficial ownership interests in a Global Security, the rules and procedures
of the Depositary that are applicable to such transfer or exchange.
"Board of Directors" means the board of directors of the Company or any
authorized committee of the Board of Directors.
"Business Day" means each day that is not a Legal Holiday.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, but excluding any debt
securities convertible into such equity.
"Cash" or "cash" means such coin or currency of the United States as at
any time of payment is legal tender for the payment of public and private debts.
"Certificated Security" means a Security that is in substantially the
form attached hereto as Exhibit A and that does not include the information or
the schedule called for by footnotes 1, 3 and 4 thereof.
"Closing Price Per Share" means the closing price per share of the
Company's Common Stock determined in accordance with Section 4.6(d) hereof.
"Common Stock" means the common stock of the Company, par value $.01
per share, as it exists on the date of this Indenture and any shares of any
class or classes of Capital Stock of the Company resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding-up of the Company and which are
not subject to redemption by the Company; provided, however, that if at any time
there shall be more than one such resulting class, the shares of each such class
then so issuable on conversion of Securities shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the party named as such in this Indenture until a
successor replaces it pursuant to this Indenture, and thereafter means the
successor.
"Contingent Interest" has the meaning specified in Section 1 of the
form of Security attached hereto as Exhibit A.
"Conversion Value" of a Security as of any date means the product of
the Sale Price of a share of Common Stock times the number of shares of Common
Stock into which the Security could then be converted (assuming that the
Security was convertible as of such date).
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Indenture is
located at 1740 Broadway, MAC C7301-024, Denver, Colorado 80274, Attention:
Corporate Trust Services, or at any other time at such other address as the
Trustee may designate from time to time by notice to the Company.
"Default" or "default" means, when used with respect to the Securities,
any event which is or, after notice or passage of time or both, would be an
Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"Ex-Dividend Time" means, with respect to any issuance or distribution
on shares of Common Stock, the first date on which the shares of Common Stock
trade regular way on the principal securities market on which the shares of
Common Stock are then traded without the right to receive such issuance or
distribution.
"Fair Market Value" shall mean the amount which a willing buyer would
pay a willing seller in an arm's length transaction (as determined by the Board
of Directors, whose determination shall be conclusive).
"Final Maturity Date" means March 15, 2022.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the date of this Indenture, including those
set forth in (1) the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants, (2) the
statements and pronouncements of the Financial Accounting Standards Board, (3)
such other statements by such other entity as approved by a significant segment
of the accounting profession and (4) the rules and regulations of the SEC
governing the inclusion of financial statements (including pro forma financial
statements) in registration statements filed under the Securities Act and
periodic reports required to be filed pursuant to Section 13 of the Exchange
Act, including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
2
"Global Security" means a permanent Global Security that is in
substantially the form attached hereto as Exhibit A and that includes the
information and schedule called for by footnotes 1, 3 and 4 thereof and which is
deposited with the Depositary or its custodian and registered in the name of the
Depositary or its nominee.
"Holder" or "Securityholder" means the person in whose name a Security
is registered on the Primary Registrar's books.
"Indebtedness" means obligations (other than nonrecourse obligations)
of, or guaranteed or assumed by, the Company for borrowed money, including
obligations evidenced by bonds, debentures, notes or other similar instruments
and reimbursement and cash collateralization of letters of credit, bankers'
acceptances, interest rate hedge and currency hedge agreements.
"Indenture" means this Indenture as amended or supplemented from time
to time pursuant to the terms of this Indenture.
"Liquidated Damages" has the meaning specified in Section 3(a) of the
Registration Rights Agreement. All references herein or in the Securities to
interest accrued or payable as of any date shall include any Liquidated Damages
accrued or payable as of such date as provided in the Registration Rights
Agreement.
"Market Price" as of any date of determination means the average of the
Sale Prices of the shares of Common Stock for the fifteen Trading Day period
ending on (if the third Business Day prior to the applicable date of
determination is a Trading Day, or if not, then on the last Trading Day prior
to), the third Business Day prior to the applicable Optional Repurchase Date
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of such Trading Days during such fifteen Trading Day
period and ending on such date of determination, of any event described in
Section 4.6; subject, however, to the conditions set forth in Section 4.7.
"Maturity" means the date on which the outstanding principal amount,
Redemption Price, Optional Repurchase Price or Change in Control Repurchase
Price with respect to such Securities becomes due and payable as therein or
herein provided, whether at the Final Maturity Date or by acceleration,
conversion, call for redemption, exercise of a repurchase right or otherwise.
"Moody's" means Moody's Investors Service Inc. and its successors.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, any Vice President, the Chief Financial Officer, the Controller,
the Secretary or any Assistant Secretary, the Treasurer or any Assistant
Treasurer of the Company.
"Officers' Certificate" means a certificate signed by two Officers;
provided, however, that for purposes of Sections 4.11 and 6.3, "Officers'
Certificate" means a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company and
by one other Officer.
3
"Opinion of Counsel" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company or the Trustee.
"Person" or "person" means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivision thereof or any other entity.
"Principal" or "principal" of a debt security, including the
Securities, means the principal of the security plus, when appropriate, the
premium, if any, on the security.
"Purchase Agreement" means the Purchase Agreement, dated as of March 7,
2002, between the Company and Bear, Stearns & Co. Inc., Banc of America
Securities, LLC, RBC Dain Rauscher Inc., A.G. Edwards & Sons, Inc., McDonald
Investments Inc. and Comerica Securities, Inc.
"Record Date" shall mean, with respect to any dividend, distribution or
other transaction or event in which the holders of shares of Common Stock have
the right to receive any cash, securities or other property or in which the
shares of Common Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other property, the date
fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
"Redemption Date" or "redemption date," when used with respect to any
Security to be redeemed, means the date fixed for such redemption pursuant to
this Indenture.
"Redemption Price" or "redemption price," when used with respect to any
Security to be redeemed, means the price fixed for such redemption pursuant to
this Indenture, as set forth in the form of Security annexed as Exhibit A
hereto.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 13, 2002, between the Company and Bear, Stearns
& Co. Inc., Banc of America Securities LLC, RBC Dain Rauscher Inc., A.G.
Edwards & Sons, Inc., McDonald Investments Inc. and Comerica Securities,
Inc., as initial purchasers.
"Regular Record Date" for the interest (including Contingent Interest)
payable on the Note means March 1 and September 1 (whether or not a Business
Day), as applicable, next preceding the corresponding Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Restricted Certificated Security" means a Certificated Security which
is a Transfer Restricted Security.
4
"Restricted Global Security" means a Global Security that is a Transfer
Restricted Security.
"Restricted Security" means a Restricted Certificated Security or a
Restricted Global Security.
"Rule 144" means Rule 144 under the Securities Act or any successor to
such Rule.
"Rule 144A" means Rule 144A under the Securities Act or any successor
to such Rule.
"Sale Price" of the shares of Common Stock on any date means:
(1) 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 average ask
prices) on such date as reported in the composite transactions for the
principal United States securities exchange on which the shares of
Common Stock are traded, or
(2) if the Common Shares are not listed on a United States
national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or its
successors.
"SEC" means the Securities and Exchange Commission.
"Securities" means the 5.75% Senior Convertible Notes due 2022 or any
of them (each, a "Security"), as amended or supplemented from time to time, that
are issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"Securities Custodian" means the Trustee, as custodian with respect to
the Securities in global form, or any successor thereto.
"Standard & Poor's" means Standard & Poor's Ratings Service, a
division of The McGraw Hill Companies, Inc., and its successors.
"Subsidiary" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, general partners or
trustees thereof is at the time owned or controlled, directly or indirectly, by
(i) such Person; (ii) such Person and one or more Subsidiaries of such Person;
or (iii) one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended, as in effect
on the date of this Indenture, except as provided in Section 13.3, and except to
the extent any amendment to the Trust Indenture Act expressly provides for
application of the Trust Indenture Act as in effect on another date.
5
"Trading Day" means:
(1) if the applicable Security is listed or admitted for
trading on the New York Stock Exchange, a day on which the New York
Stock Exchange is open for business;
(2) if that Security is not listed on the New York Stock
Exchange, a day on which trades may be made on the Nasdaq National
Market;
(3) if that Security is not so listed on the New York Stock
Exchange and not quoted on the Nasdaq National Market, a day on which
the principal U.S. securities exchange on which the Securities are
listed is open for business; or
(4) if the applicable Security is not so listed, admitted for
trading or quoted, any day other than a Saturday or a Sunday or a day
on which banking institutions in the State of New York are authorized
or obligated by law or executive order to close.
"Trading Price" of a Security on any date of determination means:
(1) the average of the secondary market bid quotations per
Security obtained by the Company for $10,000,000 principal amount 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;
(2) if at least three such bids cannot reasonably be obtained
by the Company, but two such bids are obtained, then the average of the
two bids shall be used;
(3) if only one such bid can reasonably be obtained by the
Company, this one bid shall be used; or
(4) if the Company cannot reasonably obtain at least one bid
for $10,000,000 principal amount of the Securities from a nationally
recognized securities dealer or in the Company's reasonable judgment,
the bid quotations are not indicative of the secondary market value of
the Securities, then the trading price of the Securities will equal (i)
the then-applicable Conversion Rate of the Securities multiplied by
(ii) the Sale Price of the Company's Common Stock on such determination
date.
"Trustee" means the party named as such in this Indenture until a
successor replaces it in accordance with the provisions of this Indenture, and
thereafter means the successor.
"Trust Officer" means, with respect to the Trustee, any officer
assigned to the Corporate Trust Office, and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject.
"Unrestricted Certificated Security" means a Certificated Security that
is not a Transfer Restricted Security.
"Unrestricted Global Security" means a Global Security that is not a
Transfer Restricted Security.
6
"Voting Stock" of a Person means all classes of Capital Stock or other
interests (including partnership interests) of such Person then outstanding and
normally entitled (without regard to the occurrence of any contingency) to vote
in the election of directors, managers or trustees thereof.
Section 1.2 Other Definitions.
Term Defined in Section
- ---- ------------------
"Agent Members"...........................................................2.1
"Bankruptcy Law"..........................................................8.1
"Change in Control".......................................................12.1
"Change in Control Repurchase Date".......................................12.1
"Change in Control Repurchase Notice".....................................12.1
"Change in Control Repurchase Price"......................................12.1
"closing price"...........................................................4.6(d)
"Company Notice"..........................................................5.5
"Company Notice Date".....................................................5.5
"Company Order"...........................................................2.2
"Contingent Payment Regulations"..........................................6.10
"Conversion Agent"........................................................2.3
"Conversion Date".........................................................4.2
"Conversion Rate".........................................................4.1(b)
"Conversion Price"........................................................4.6
"current market price"....................................................4.6(d)
"Custodian"...............................................................8.1
"DTC".....................................................................2.1
"Depositary"..............................................................2.1
"Determination Date"......................................................4.6(c)
"Event of Default"........................................................8.1
"Expiration Date".........................................................4.6(c)
"Expiration Time".........................................................4.6(c)
"Legal Holiday"...........................................................13.7
"NNM".....................................................................4.5
"Optional Repurchase Date"................................................5.1
"Optional Repurchase Notice"..............................................5.1
"Optional Repurchase Price"...............................................5.1
"Paying Agent"............................................................2.3
"Primary Registrar".......................................................2.3
"Purchased Shares"........................................................4.6(c)
"QIB".....................................................................2.1
"Registrar"...............................................................2.3
"Repurchase Press Release"................................................5.5
"Transfer Certificate"....................................................2.12
"Transfer Restricted Security"............................................2.12
"Triggering Distribution".................................................4.6(c)
"Unissued Shares".........................................................12.1
7
Section 1.3 Trust Indenture Act Provisions.
Whenever this Indenture refers to a provision of the TIA, that
provision is incorporated by reference in and made a part of this Indenture. The
Indenture shall also include those provisions of the TIA required to be included
herein by the provisions of the Trust Indenture Reform Act of 1990. The
following TIA terms used in this Indenture have the following meanings:
"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; and
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other terms used in this Indenture that are defined in the TIA,
defined by TIA reference to another statute or defined by any SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
Section 1.4 Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(iii) words in the singular include the plural, and words in the plural
include the singular;
(iv) provisions apply to successive events and transactions;
(v) the masculine gender includes the feminine and the neuter;
(vi) references to agreements and other instruments include subsequent
amendments thereto; and
(vii) "herein," "hereof" and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision.
8
THE SECURITIES
Section 2.1 Form and Dating
The Securities and the Trustee's certificate of authentication shall be
substantially in the respective forms set forth in Exhibit A, which Exhibit is
incorporated in and made part of this Indenture. The Securities may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Security shall be dated the date of its authentication. The
Securities are being offered and sold by the Company in transactions exempt
from, or not subject to, the registration requirements of the Securities Act.
(a) Restricted Global Securities. All of the Securities are initially
being offered and sold to qualified institutional buyers as defined in Rule 144A
(collectively, "QIBs" or individually, each a "QIB") in reliance on Rule 144A
under the Securities Act and shall be issued initially in the form of one or
more Restricted Global Securities, which shall be deposited on behalf of the
purchasers of the Securities represented thereby with the Trustee, at its
Corporate Trust Office, as custodian for the depositary, The Depository Trust
Company ("DTC") (such depositary, or any successor thereto, being hereinafter
referred to as the "Depositary"), and registered in the name of its nominee,
Cede & Co., duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the Restricted Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Securities Custodian as hereinafter provided, subject in each
case to compliance with the Applicable Procedures.
(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, purchases or conversions of such
Securities. Any endorsement 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 Securities Custodian in accordance with the standing
instructions and procedures existing between the Depositary and the Securities
Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or under any Global Security, and the Depositary
(including, for this purpose, its nominee) 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 (A) 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 (B)
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
9
(c) Certificated Securities. Certificated Securities shall be issued
only under the limited circumstances provided in Section 2.12(a)(1) hereof.
Section 2.2 Execution and Authentication
An Officer shall sign the Securities for the Company by manual or
facsimile signature attested by the manual or facsimile signature of the
Secretary or an Assistant Secretary of the Company. Typographic and other minor
errors or defects in any such facsimile signature shall not affect the validity
or enforceability of any Security which has been authenticated and delivered by
the Trustee.
If an Officer whose signature is on a Security no longer holds that
office at the time the Trustee authenticates the Security, the Security shall be
valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities for original issue in the aggregate principal amount of up to
$75,000,000 (plus up to an additional $25,000,000 that may be issued pursuant to
the exercise of the over-allotment option described in the Purchase Agreement)
upon receipt of a written order or orders of the Company signed by an Officer of
the Company (a "Company Order"). The Company Order shall specify the amount of
Securities to be authenticated, shall provide that all such Securities will be
represented by a Restricted Global Security and the date on which each original
issue of Securities is to be authenticated. The aggregate principal amount of
Securities outstanding at any time may not exceed $75,000,000, except as
provided above and in Section 2.7.
The Trustee shall act as the initial authenticating agent. Thereafter,
the Trustee may appoint an authenticating agent acceptable to the Company to
authenticate Securities. An authenticating agent may authenticate Securities
whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent shall have the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Section 2.3 Registrar, Paying Agent and Conversion Agent
The Company shall maintain one or more offices or agencies where
Securities may be presented for registration of transfer or for exchange (each,
a "Registrar"), one or more offices or agencies where Securities may be
presented for payment (each, a "Paying Agent"), one or more offices or agencies
where Securities may be presented for conversion (each, a "Conversion Agent")
and one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent, Registrar
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served in the Borough of
Manhattan, the City of New York. One of the Registrars (the "Primary Registrar")
shall keep a register of the Securities and of their transfer and exchange.
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The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. 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 Agent not a party to this Indenture.
If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or
agent for service of notices and demands in any place required by this
Indenture, or fails to give the foregoing notice, the Trustee shall act as such.
The Company or any Affiliate of the Company may act as Paying Agent (except for
the purposes of Section 6.1 and Article X).
The Company hereby initially designates the Trustee as Paying Agent,
Registrar, Securities Custodian and Conversion Agent (which shall initially be
located at 45 Broadway, 12th Floor, MAC N2666-120, New York, New York 10006,
Attention: Corporate Trust Department), one such office or agency of the Company
for each of the aforesaid purposes.
Section 2.4 Paying Agent To Hold Money in Trust
Prior to 11:00 a.m., New York City time, on each due date of the
principal of or interest, if any, on any Securities, the Company shall deposit
with a Paying Agent a sum sufficient to pay such principal or interest
(including Contingent Interest), if any, so becoming due. Subject to Section
5.9, a Paying Agent shall hold in trust for the benefit of Securityholders or
the Trustee all money held by the Paying Agent for the payment of principal of
or interest, if any, on the Securities, and shall notify the Trustee of any
default by the Company (or any other obligor on the Securities) in making any
such payment. If the Company or an Affiliate of the Company acts as Paying
Agent, it shall, before 11:00 a.m., New York City time, on each due date of the
principal of or interest on any Securities, segregate money in such amount and
hold it as a separate trust fund. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee, and the Trustee may at any
time during the continuance of any Default, upon written request to a Paying
Agent, require such Paying Agent to forthwith pay to the Trustee all sums so
held in trust by such Paying Agent. Upon doing so, the Paying Agent (other than
the Company) shall have no further liability for the money.
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 Primary Registrar, the Company shall
furnish to the Trustee on or before the third (3rd) Business Day preceding each
semiannual interest payment date 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
Subject to compliance with any applicable additional requirements
contained in Section 2.12, when a Security is presented to a Registrar with a
request to register a transfer thereof or to exchange such Security for an equal
principal amount of Securities of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested; provided,
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however, that every Security presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by an assignment form
and, if applicable, a transfer certificate each in the form included in Exhibit
A, and in form satisfactory to the Registrar duly executed by the Holder thereof
or its attorney duly authorized in writing. To permit registration of transfers
and exchanges, upon surrender of any Security for registration of transfer or
exchange at an office or agency maintained pursuant to Section 2.3, the Company
shall execute and the Trustee shall authenticate Securities of a like aggregate
principal amount at the Registrar's request. Any exchange or transfer shall be
without charge, except that the Company or the Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto, and provided, that this sentence shall not apply to
any exchange pursuant to Section 2.7, 2.10, 2.12(a)(1), 3.6, 4.2 (last
paragraph), 5.11, 11.5 or 12.4.
Neither the Company, any Registrar nor the Trustee shall be required to
exchange or register a transfer of (a) any Securities for a period of 15 days
next preceding any mailing of a notice of Securities to be redeemed, (b) any
Securities or portions thereof selected or called for redemption (except, in the
case of redemption of a Security in part, the portion not to be redeemed) or (c)
any Securities or portions thereof in respect of which an Optional Repurchase
Notice or a Change in Control Repurchase Notice has been delivered and not
withdrawn by the Holder thereof (except, in the case of the purchase of a
Security in part, the portion not to be purchased).
All Securities issued upon any transfer or exchange of Securities shall
be valid obligations of the Company, evidencing the same debt and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
(b) 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.
(c) Each Holder of a Security agrees to indemnify the Company, the
Registrar and the Trustee against any liability that may result from the
transfer, exchange or assignment of such Holder's Security in violation of any
provision of this Indenture and/or applicable United States federal or state
securities law.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Agent Members or other
beneficial owners of interests in any Global Security) other than to require
delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the express requirements hereof.
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Section 2.7 Replacement Securities
If any mutilated Security is surrendered to the Company, a Registrar or
the Trustee, or the Company, a Registrar and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Security, and there
is delivered to the Company, the applicable Registrar and the Trustee such
security or indemnity as will be required by them to save each of them harmless,
then, in the absence of actual notice to the Company, such Registrar 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 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 redeemed or
purchased by the Company pursuant to Article III, the Company in its discretion
may, instead of issuing a new Security, pay, redeem or purchase such Security,
as the case may be.
Upon the issuance of any new Securities under this Section 2.7, the
Company shall 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
reasonable expenses (including the reasonable fees and expenses of the Trustee
or the Registrar) in connection therewith.
Every new Security issued pursuant to this Section 2.7 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section 2.7 are (to the extent lawful) 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
Securities outstanding at any time are all Securities authenticated by
the Trustee, except for those canceled by it, those delivered to it for
cancellation and those described in this Section 2.8 as not outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Company receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If a Paying Agent (other than the Company or an Affiliate of the
Company) holds on a redemption date, a Change in Control Repurchase Date, an
Optional Repurchase Date or the Final Maturity Date money sufficient to pay the
principal of (including premium, if any) and accrued interest (including
Contingent Interest) on Securities (or portions thereof) payable on that date,
then on and after that date such Securities (or portions thereof, as the case
may be) cease to be outstanding and interest on them ceases to accrue.
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Subject to the restrictions contained in Section 2.9, a Security does
not cease to be outstanding because the Company or an Affiliate of the Company
holds the Security.
Section 2.9 Treasury Securities
In determining whether the Holders of the required principal amount of
Securities have concurred in any notice, direction, waiver or consent,
Securities owned by the Company or any other obligor on the Securities or by any
Affiliate of the Company or of such other obligor shall be disregarded, except
that, for purposes of determining whether the Trustee shall be protected in
relying on any such notice, direction, waiver or consent, only Securities which
a Trust Officer of the Trustee actually knows are so owned shall be so
disregarded. Securities so owned which have been pledged in good faith shall not
be disregarded if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to the Securities and that the pledgee is
not the Company or any other obligor on the Securities or any Affiliate of the
Company or of such other obligor.
Section 2.10 Temporary Securities
Until definitive Securities are ready for delivery, the Company may
prepare and execute, and, upon receipt of a Company Order, the Trustee shall
authenticate and deliver, temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities but may have variations that
the Company with the consent of the Trustee considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate and deliver definitive Securities in exchange for
temporary Securities.
Section 2.11 Cancellation
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar, the Paying Agent and the Conversion Agent shall
forward to the Trustee or its agent any Securities surrendered to them for
transfer, exchange, payment or conversion. The Trustee and no one else shall
cancel, in accordance with its standard procedures, all Securities surrendered
for transfer, exchange, redemption, payment, conversion or cancellation and
shall deliver the canceled Securities to the Company. All Securities which are
redeemed, purchased or otherwise acquired by the Company or any of its
Subsidiaries prior to the Final Maturity Date shall be delivered to the Trustee
for cancellation and the Company may not hold or resell such Securities or issue
any new Securities to replace any such Securities or any Securities that any
Holder has converted pursuant to Article IV. Without limitation to the
foregoing, any Securities acquired by any investment bankers or other purchasers
pursuant to Section 3.7 shall be surrendered for conversion and thereafter
cancelled, and may not be reoffered, sold or otherwise transferred.
Section 2.12 Additional Transfer and Exchange Requirements
(a) Transfer and Exchange of Global Securities.
(1) Certificated Securities shall be issued in exchange for
interests in the Global Securities only if (x) the Depositary notifies
the Company that it is unwilling or unable to continue as Depositary
for the Global Securities or if it at any time ceases to be a "clearing
agency" registered under the Exchange Act, if so required by applicable
law or regulation and a successor Depositary is not appointed by the
Company within 90 days, or (y) an Event of Default has occurred and is
continuing. In either case, the Company shall execute, and the Trustee
shall, upon receipt of a Company Order (which the Company agrees to
delivery promptly), authenticate and deliver Certificated Securities in
an aggregate principal amount equal to the principal amount of such
Global Securities in exchange therefor. Only Restricted Certificated
Securities shall be issued in exchange for beneficial interests in
Restricted Global Securities, and only Unrestricted Certificated
Securities shall be issued in exchange for beneficial interests in
Unrestricted Global Securities. Certificated Securities issued in
exchange for beneficial interests in Global Securities shall be
registered in such names and shall be in such authorized denominations
as the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver or cause to be delivered such Certificated Securities to
the Persons in whose names such Securities are so registered. Such
exchange shall be effected in accordance with the Applicable
Procedures.
(2) Notwithstanding any other provisions of this Indenture
other than the provisions set forth in Section 2.12(a)(1), a Global
Security may not be transferred as a whole except by the Depositary to
a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or
any such nominee to a successor Depositary or a nominee of such
successor Depositary.
(b) Transfer and Exchange of Certificated Securities. In the event that
Certificated Securities are issued in exchange for beneficial interests in
Global Securities in accordance with Section 2.12(a)(1) of this Indenture, on or
after such event when Certificated Securities are presented by a Holder to a
Registrar with a request:
(x) to register the transfer of the Certificated Securities to
a person who will take delivery thereof in the form of Certificated
Securities only; or
(y) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized
denominations, such Registrar shall register the transfer or make the
exchange as requested;
provided, however, that the Certificated Securities presented or surrendered for
register of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to the first
paragraph of Section 2.6; and
(2) in the case of a Restricted Certificated Security, such
request shall be accompanied by the following additional information
and documents, as applicable:
(i) if such Restricted Certificated Security is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, or such Restricted
Certificated Security is being transferred to the Company or a
Subsidiary of the Company, a certification to that effect from
such Holder (in substantially the form set forth in the
Transfer Certificate);
15
(ii) if such Restricted Certificated Security is
being transferred to a person the Holder reasonably believes
is a QIB in accordance with Rule 144A or pursuant to an
effective registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form set forth in the Transfer Certificate);
or
(iii) if such Restricted Certificated Security is
being transferred (i) pursuant to an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which,
in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that effect
from the Holder (in substantially the form set forth in the
Transfer Certificate) and, if the Company or such Registrar so
requests, a customary Opinion of Counsel, certificates and
other information reasonably acceptable to the Company and
such Registrar to the effect that such transfer is in
compliance with the registration requirements of the
Securities Act.
(c) Transfer of a Beneficial Interest in a Restricted Global Security
for a Beneficial Interest in an Unrestricted Global Security. Any person having
a beneficial interest in a Restricted Global Security may upon request, subject
to the Applicable Procedures, transfer such beneficial interest to a person who
is required or permitted to take delivery thereof in the form of an Unrestricted
Global Security. Upon receipt by the Trustee of written instructions, or such
other form of instructions as is customary for the Depositary, from the
Depositary or its nominee on behalf of any person having a beneficial interest
in a Restricted Global Security and the following additional information and
documents in such form as is customary for the Depositary from the Depositary or
its nominee on behalf of the person having such beneficial interest in the
Restricted Global Security (all of which may be submitted by facsimile or
electronically):
(1) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certification to that effect from the transferor (in substantially the
form set forth in the Transfer Certificate); or
(2) if such beneficial interest is being transferred (i)
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 or (ii) pursuant to an
exemption from the registration requirements of the Securities Act
(other than pursuant to Rule 144A or Rule 144) and as a result of
which, in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security" within
the meaning of Rule 144, a certification to that effect from the
transferor (in substantially the form set forth in the Transfer
Certificate) and, if the Company or the Trustee so requests, a
customary Opinion of Counsel, certificates and other information
reasonably acceptable to the Company and the Trustee to the effect that
such transfer is in compliance with the registration requirements of
the Securities Act,
16
the Trustee, as a Registrar and Securities Custodian, shall reduce or cause to
be reduced the aggregate principal amount of the Restricted Global Security by
the appropriate principal amount and shall increase or cause to be increased the
aggregate principal amount of the Unrestricted Global Security by a like
principal amount. Such transfer shall otherwise be effected in accordance with
the Applicable Procedures. If no Unrestricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon receipt of a
Company Order (which the Company agrees to deliver promptly), authenticate and
deliver an Unrestricted Global Security.
(d) Transfer of a Beneficial Interest in an Unrestricted Global
Security for a Beneficial Interest in a Restricted Global Security. Any person
having a beneficial interest in an Unrestricted Global Security may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the form of
a Restricted Global Security (it being understood that only QIBs may own
beneficial interests in Restricted Global Securities). Upon receipt by the
Trustee of written instructions or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee, on behalf of
any person having a beneficial interest in an Unrestricted Global Security and,
in such form as is customary for the Depositary, from the Depositary or its
nominee on behalf of the person having such beneficial interest in the
Unrestricted Global Security (all of which may be submitted by facsimile or
electronically) a certification from the transferor (in substantially the form
set forth in the Transfer Certificate) to the effect that such beneficial
interest is being transferred to a person that the transferor reasonably
believes is a QIB in accordance with Rule 144A, the Trustee, as a Registrar and
Securities Custodian, shall reduce or cause to be reduced the aggregate
principal amount of the Unrestricted Global Security by the appropriate
principal amount and shall increase or cause to be increased the aggregate
principal amount of the Restricted Global Security by a like principal amount.
Such transfer shall otherwise be effected in accordance with the Applicable
Procedures. If no Restricted Global Security is then outstanding, the Company
shall execute and the Trustee shall, upon receipt of a Company Order (which the
Company agrees to deliver promptly), authenticate and deliver a Restricted
Global Security.
(e) Transfers of Certificated Securities for Beneficial Interest in
Global Securities. In the event that Certificated Securities are issued in
exchange for beneficial interests in Global Securities and, thereafter, the
events or conditions specified in Section 2.12(a)(1) which required such
exchange shall cease to exist, the Company shall mail notice to the Trustee and
to the Holders stating that Holders may exchange Certificated Securities for
interests in Global Securities by complying with the procedures set forth in
this Indenture and briefly describing such procedures and the events or
circumstances requiring that such notice be given. Thereafter, if Certificated
Securities are presented by a Holder to a Registrar with a request:
(x) to register the transfer of such Certificated Securities
to a person who will take delivery thereof in the form of a beneficial
interest in a Global Security, which request shall specify whether such
Global Security will be a Restricted Global Security or an Unrestricted
Global Security; or
17
(y) to exchange such Certificated Securities for an equal
principal amount of beneficial interests in a Global Security, which
beneficial interests will be owned by the Holder transferring such
Certificated Securities (provided that in the case of such an exchange,
Restricted Certificated Securities may be exchanged only for Restricted
Global Securities and Unrestricted Certificated Securities may be
exchanged only for Unrestricted Global Securities), the Registrar shall
register the transfer or make the exchange as requested by canceling
such Certificated Security and causing, or directing the Securities
Custodian to cause, the aggregate principal amount of the applicable
Global Security to be increased accordingly and, if no such Global
Security is then outstanding, the Company shall issue and the Trustee
shall, upon receipt of a Company Order (which the Company agrees to
deliver promptly) authenticate and deliver a new Global Security;
provided, however, that the Certificated Securities presented or surrendered for
registration of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to Section 2.6;
(2) in the case of a Restricted Certificated Security to be
transferred for a beneficial interest in an Unrestricted Global
Security, such request shall be accompanied by the following additional
information and documents, as applicable:
(i) if such Restricted Certificated Security is being
transferred pursuant to an effective registration statement
under the Securities Act, a certification to that effect from
such Holder (in substantially the form set forth in the
Transfer Certificate); or
(ii) if such Restricted Certificated Security is
being transferred pursuant to (A) an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (B) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which,
in the case of a Security transferred pursuant to this clause
(B), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that effect
from such Holder (in substantially the form set forth in the
Transfer Certificate), and, if the Company or the Registrar so
requests, a customary Opinion of Counsel, certificates and
other information reasonably acceptable to the Company and the
Trustee to the effect that such transfer is in compliance with
the registration requirements of the Securities Act;
(3) in the case of a Restricted Certificated Security to be
transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification
from such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Restricted Certificated Security
is being transferred to a person the Holder reasonably believes is a
QIB (which, in the case of an exchange, shall be such Holder) in
accordance with Rule 144A;
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(4) in the case of an Unrestricted Certificated Security to be
transferred or exchanged for a beneficial interest in an Unrestricted
Global Security, such request need not be accompanied by any additional
information or documents; and
(5) in the case of an Unrestricted Certificated Security to be
transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification
from such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Unrestricted Certificated Security
is being transferred to a person the Holder reasonably believes is a
QIB (which, in the case of an exchange, shall be such Holder) in
accordance with Rule 144A.
(f) Legends.
(1) Except as permitted by the following paragraphs (2) and
(3), each Global Security and Certificated Security (and all Securities
issued in exchange therefor or upon registration of transfer or
replacement thereof) shall bear a legend in substantially the form
called for by footnote 2 to Exhibit A hereto (each a "Transfer
Restricted Security" for so long as it is required by this Indenture to
bear such legend). Each Transfer Restricted Security shall have
attached thereto a certificate (a "Transfer Certificate") in
substantially the form called for by footnote 5 to Exhibit A hereto.
(2) Upon any sale or transfer of a Transfer Restricted
Security (w) after the expiration of the holding period applicable to
sales of the Securities under Rule 144(k) of the Securities Act, (x)
pursuant to Rule 144, (y) pursuant to an effective registration
statement under the Securities Act or (z) pursuant to any other
available exemption (other than Rule 144A) from the registration
requirements of the Securities Act and as a result of which, in the
case of a Security transferred pursuant to this clause (z), such
Security shall cease to be a "restricted security" within the meaning
of Rule 144:
(i) in the case of any Restricted Certificated
Security, any Registrar shall permit the Holder thereof to
exchange such Restricted Certificated Security for an
Unrestricted Certificated Security, or (under the
circumstances described in Section 2.12(e)) to transfer such
Restricted Certificated Security to a transferee who shall
take such Security in the form of a beneficial interest in an
Unrestricted Global Security, and in each case shall rescind
any restriction on the transfer of such Security; provided,
however, that the Holder of such Restricted Certificated
Security shall, in connection with such exchange or transfer,
comply with the other applicable provisions of this Section
2.12; and
(ii) in the case of any beneficial interest in a
Restricted Global Security, the Trustee shall permit the
beneficial owner thereof to transfer such beneficial interest
to a transferee who shall take such interest in the form of a
beneficial interest in an Unrestricted Global Security and
shall rescind any restriction on transfer of such beneficial
interest; provided, that such Unrestricted Global Security
shall continue to be subject to the provisions of Section
2.12(a)(2); and provided, further, that the owner of such
beneficial interest shall, in connection with such transfer,
comply with the other applicable provisions of this Section
2.12.
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(3) Upon the exchange, registration of transfer or replacement
of Securities not bearing the legend described in paragraph (1) above,
the Company shall execute, and the Trustee shall authenticate and
deliver, Securities that do not bear such legend and that do not have a
Transfer Certificate attached thereto.
(4) After the expiration of the holding period pursuant to
Rule 144(k) of the Securities Act, the Company may with the consent of
the Holder of a Restricted Global Security or Restricted Certificated
Security, remove any restriction of transfer on such Security, and the
Company shall execute, and the Trustee shall authenticate and deliver,
Securities that do not bear such legend and that do not have a Transfer
Certificate attached thereto.
(g) Transfers to the Company. Nothing in this Indenture or in the
Securities shall prohibit the sale or other transfer of any Securities
(including beneficial interests in Global Securities) to the Company or any of
its Subsidiaries, which Securities shall thereupon be cancelled in accordance
with Section 2.11.
Section 2.13 CUSIP Numbers
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption or purchase 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 or purchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
purchase 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.
ARTICLE III
REDEMPTION
Section 3.1 Right to Redeem; Notice to Trustee
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on or after March 20, 2007, on
at least 20 days and no more than 60 days notice at the redemption prices
specified in paragraph 5 of the form of Security attached hereto as Exhibit A,
together with accrued interest (including Contingent Interest) up to but not
including the Redemption Date; provided that if the Redemption Date is an
interest payment date, interest will be payable to the Holders in whose name the
Securities are registered at the close of business on the relevant record dates
for payment of such interest.
If the Company elects to redeem Securities pursuant to this Section 3.1
and paragraph 5 of the Securities, it shall notify the Trustee in writing, at
the earlier of the time the Company notifies the Holders of such redemption or
45 days prior to the redemption date as fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), of the redemption date and the
principal amount of Securities to be redeemed. If fewer than all of the
Securities are to be redeemed, the record date relating to such redemption shall
be selected by the Company and given to the Trustee, which record date shall not
be less than ten days after the date of notice to the Trustee.
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Section 3.2 Selection of Securities to be Redeemed
If less than all of the Securities are to be redeemed, the Trustee
shall, not more than 60 days prior to the redemption date, select the Securities
to be redeemed. The Trustee shall make the selection from the Securities
outstanding and not previously called for redemption on a pro rata basis;
provided, however, that Securities in denominations of $1,000 may only be
redeemed in whole. The Trustee may select for redemption portions (equal to
$1,000 or any multiple thereof) of the principal of Securities that have
denominations larger than $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
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 to
be the portion selected for redemption. Securities which have been converted
during a selection of Securities to be redeemed shall be treated by the Trustee
as outstanding for the purpose of such selection.
Section 3.3 Notice of Redemption
At least 20 days but not more than 60 days before a Redemption Date,
the Company shall mail or cause to be mailed a notice of redemption to each
Holder of Securities to be redeemed at such Holder's address as it appears on
the Primary Registrar's books.
The notice shall identify the Securities (including CUSIP numbers) to
be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the then current Conversion Price;
(4) the name and address of each Paying Agent and Conversion Agent;
(5) that Securities called for redemption must be presented and
surrendered to a Paying Agent to collect the redemption price;
(6) that Holders who wish to convert Securities must surrender such
Securities for conversion no later than the close of business on the second
Business Day immediately preceding the redemption date and must satisfy the
other requirements in paragraph 8 of the Securities;
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(7) that, if sufficient money to effect the payment of the redemption
price and accrued and unpaid interest (including Contingent Interest) on all
Securities to be redeemed is on deposit with the Trustee or Paying Agent and
available therefor, interest (including Contingent Interest) on Securities
called for redemption shall cease accruing on and after the redemption date and
the only remaining right of the Holder shall be to receive payment of the
redemption price, plus accrued and unpaid interest (including Contingent
Interest), if any, upon presentation and surrender to a Paying Agent of the
Securities; and
(8) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the redemption
date, upon presentation and surrender of such Security, a new Security or
Securities in aggregate principal amount equal to the unredeemed portion thereof
will be issued.
If any of the Securities to be redeemed is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to redemptions. At the
Company's written request, which request shall (i) be irrevocable once given and
(ii) set forth all relevant information required by clauses (1) through (8) of
the preceding paragraph, the Trustee shall give the notice of redemption in the
Company's name and at the Company's expense.
Section 3.4 Effect of Notice of Redemption
Once notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the redemption price stated
in the notice, together with accrued and unpaid interest, if any, except for
Securities that are converted in accordance with the provisions of Article IV.
Upon presentation and surrender to a Paying Agent (unless the Securities are in
the form of a Global Security), Securities called for redemption shall be paid
at the redemption price, plus accrued interest up to but not including the
redemption date; provided if the redemption date is an interest payment date,
interest (including Contingent Interest) will be payable to the Holders in whose
names the Securities are registered at the close of business on the relevant
record dates for payment of such interest.
Section 3.5 Deposit of Redemption Price
The Company, prior to 11:00 a.m. New York City time, on the Redemption
Date, shall deposit with a Paying Agent (or, if the Company acts as Paying
Agent, shall segregate and hold in trust) money sufficient to pay the redemption
price of and accrued interest (including Contingent Interest) on all Securities
to be redeemed on that date, other than Securities or portions thereof called
for redemption on that date which have been delivered by the Company to the
Trustee for cancellation or have been converted. The Paying Agent shall return
to the Company any money not required for that purpose because of the conversion
of Securities pursuant to Article IV or, if such money is then held by the
Company in trust and is not required for such purpose, it shall be discharged
from the trust.
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Section 3.6 Securities Redeemed in Part
Upon presentation and 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 equal in principal amount to the unredeemed portion of
the Security surrendered.
Section 3.7 Conversion Arrangement on Call For Redemption
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities called for redemption
by an agreement with one or more investment bankers or other purchasers to
purchase such Securities by paying to a Paying Agent (other than the Company or
any of its Affiliates) in trust for the Holders, on or before 11:00 a.m., New
York City time on the Redemption Date, an amount that, together with any amounts
deposited with such Paying Agent by the Company for the redemption of such
Securities, is not less than the Redemption Price, together with interest
(including Contingent Interest) accrued to, but not including, the Redemption
Date, of such Securities. Notwithstanding anything to the contrary contained in
this Article III, the obligation of the Company to pay the Redemption Price of
such Securities, including all accrued interest (including Contingent Interest),
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers; provided, however, that nothing in this Section 3.7
shall relieve the Company of its obligation to pay the Redemption Price, plus
accrued interest to but excluding the relevant redemption date, on Securities
called for redemption. If such an agreement with one or more investment banks or
other purchasers is entered into, any Securities called for redemption and not
surrendered for conversion by the Holders thereof prior to the relevant
redemption date may, at the option of the Company upon written notice to the
Trustee, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article IV) surrendered by such purchasers for conversion, all as
of 11:00 a.m., New York City time on the Redemption Date, subject to payment of
the above amount as aforesaid. The Paying Agent shall hold and pay to the
Holders whose Securities are selected for redemption any such amount paid to it
for purchase in the same manner as it would money deposited with it by the
Company for the redemption of Securities. Without the Paying Agent's prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, responsibilities or obligations of the Paying Agent as
set forth in this Indenture, and the Company agrees to indemnify the Paying
Agent from, and hold it harmless against, any loss, liability or expense arising
out of or in connection with any such arrangement for the purchase and
conversion of any Securities between the Company and such purchasers, including
the costs and expenses incurred by the Paying Agent in the defense of any claim
or liability arising out of or in connection with the exercise or performance of
any of its powers, duties, responsibilities or obligations under this Indenture.
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ARTICLE IV
CONVERSION
Section 4.1 Conversion Privilege
(a) Subject to and upon compliance with the provisions of this Article,
at the option of the Holder, any Security or any portion of the principal amount
thereof which is an integral multiple of $1,000 may be converted at any time
prior to maturity at the principal amount thereof, or of such portion thereof,
into duly authorized, fully paid and nonassessable shares of Common Stock, at
the Conversion Price, determined as hereinafter provided, in effect at the time
of conversion.
(b) The conversion rate applicable to the Securities, at any time,
shall equal (A) $1,000 divided by the Conversion Price at such time, rounded to
three decimal places (rounded up if the fourth decimal place thereof is 5 or
more and otherwise rounded down) (the "Conversion Rate").
Notwithstanding the foregoing, if such Security is called for
redemption pursuant to Article III or submitted or presented for repurchase
pursuant to Articles V or XII, such conversion right shall terminate at the
close of business on the second Business Day immediately preceding the
Redemption Date, Optional Repurchase Date or Change in Control Repurchase Date,
as the case may be, for such Security or such earlier date as the Holder
presents such Security for redemption or for purchase (unless the Company shall
default in making the Redemption Price, Optional Repurchase Price or Change in
Control Repurchase Price payment when due, in which case the conversion right
shall terminate at the close of business on the date such default is cured and
such Security is redeemed or purchased, as the case may be). If such Security is
submitted or presented for purchase pursuant to Article III and is then
subsequently withdrawn, such conversion right shall no longer be terminated, and
the Holder of such Security may convert such Security pursuant to this Section
4.1. The number of shares of Common Stock issuable upon conversion of a Security
shall be determined by dividing the principal amount of the Security or portion
thereof surrendered for conversion by the Conversion Price in effect on the
Conversion Date. The initial Conversion Price is set forth in paragraph 8 of the
Securities and is subject to adjustment as provided in this Article IV.
Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
A Security in respect of which a Holder has delivered an Optional
Repurchase Notice pursuant to Section 5.1 or a Change in Control Repurchase
Notice pursuant to Section 12.1(c) exercising the option of such Holder to
require the Company to purchase such Security may be converted only if such
Optional Repurchase Notice or Change in Control Repurchase Notice, as the case
may be, is withdrawn by a written notice of withdrawal delivered to a Paying
Agent prior to the close of business on the Business Day immediately preceding
the Optional Repurchase Date or Change in Control Repurchase Date, as the case
may be, in accordance with Sections 5.9 or 12.2, respectively.
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A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities to Common Stock, and
only to the extent such Securities are deemed to have been converted into Common
Stock pursuant to this Article IV.
Section 4.2 Conversion Procedure
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice on the back of the Security and deliver such notice to a
Conversion Agent, (b) surrender the Security to a Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by a Registrar or a
Conversion Agent, and (d) pay any transfer or similar tax, if required. The date
on which the Holder satisfies all of those requirements is the "Conversion
Date." As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder through a Conversion Agent a certificate for the number of
whole shares of Common Stock issuable upon the conversion and cash in lieu of
any fractional shares pursuant to Section 4.3. Anything herein to the contrary
notwithstanding, in the case of Global Securities, conversion notices may be
delivered and such Securities may be surrendered for conversion in accordance
with the Applicable Procedures as in effect from time to time.
The person in whose name the Common Stock certificate is registered
shall be deemed to be a stockholder of record on the Conversion Date; provided,
however, that no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the person
or persons entitled to receive the shares of Common Stock upon such conversion
as the record holder or holders of such shares of Common Stock on such date, but
such surrender shall be effective to constitute the person or persons entitled
to receive such shares of Common Stock as the record holder or holders thereof
for all purposes at the close of business on the next succeeding day on which
such stock transfer books are open; provided, further, that such conversion
shall be at the Conversion Price in effect on the Conversion Date as if the
stock transfer books of the Company had not been closed. 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 or distributions on shares of Common
Stock issued upon conversion of a Security.
Securities so surrendered for conversion (in whole or in part) during
the period from the close of business on any regular record date to the opening
of business on the next succeeding interest payment date (excluding Securities
or portions thereof called for redemption on a Redemption Date during the period
beginning at the close of business on a Regular Record Date and ending at the
opening of business on the first Business Day after the next succeeding interest
payment date, or if such interest payment date is not a Business Day, the second
such Business Day) shall also be accompanied by payment in funds acceptable to
the Company of an amount equal to the interest payable on such interest payment
date on the principal amount of such Security then being converted, and such
interest shall be payable to such registered Holder notwithstanding the
conversion of such Security, subject to the provisions of this Indenture
relating to the payment of defaulted interest by the Company. Except as
otherwise provided in this Section 4.2, no payment or adjustment will be made
for accrued interest on a converted Security. If the Company defaults in the
payment of interest payable on such interest payment date, the Company shall
promptly repay such funds to such Holder.
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Nothing in this Section shall affect the right of a Holder in whose
name any Security is registered at the close of business on a record date to
receive the interest payable on such Security on the related interest payment
date in accordance with the terms of this Indenture and the Securities. If a
Holder converts more than one Security at the same time, the number of shares of
Common Stock issuable upon the conversion shall be based on the aggregate
principal amount of Securities converted.
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 equal in principal amount to the unconverted portion of the
Security surrendered.
Section 4.3 Fractional Shares
The Company will not issue fractional shares of Common Stock upon
conversion of Securities. In lieu thereof, the Company will pay an amount in
cash based upon the current market price (determined as set forth in Section
4.6(d)) of the Common Stock on the Trading Day immediately prior to the
Conversion Date.
Section 4.4 Taxes on Conversion
If a Holder converts a Security, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of shares of Common
Stock upon such 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 certificate
representing the 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 regulation.
Section 4.5 Company to Provide Stock
The Company shall, prior to issuance of any Securities hereunder, and
from time to time as may be necessary, reserve, out of its authorized but
unissued Common Stock, a sufficient number of shares of Common Stock to permit
the conversion of all outstanding Securities into shares of Common Stock.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued 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.
The Company will endeavor promptly to comply with all federal and state
securities laws regulating the offer and delivery of shares of Common Stock upon
conversion of Securities, if any, and will list or cause to have quoted such
shares of Common Stock on each national securities exchange or on the Nasdaq
National Market ("NNM") or other over-the-counter market or such other market on
which the Common Stock is then listed or quoted; provided, however, that if
rules of such automated quotation system or exchange permit the Company to defer
the listing of such Common Stock until the first conversion of the Notes into
Common Stock in accordance with the provisions of this Indenture, the Company
covenants to list such Common Stock issuable upon conversion of the Notes in
accordance with the requirements of such automated quotation system or exchange
at such time.
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Section 4.6 Adjustment of Conversion Price
The conversion price as stated in paragraph 8 of the Securities (the
"Conversion Price") shall be adjusted from time to time by the Company as
follows:
(a) In case the Company shall (i) pay a dividend on its Common Stock in
shares of Common Stock, (ii) make a distribution on its Common Stock in shares
of Common Stock, (iii) subdivide its outstanding Common Stock into a greater
number of shares, or (iv) combine its outstanding Common Stock into a smaller
number of shares, the Conversion Price in effect immediately prior thereto shall
be adjusted so that the Holder of any Security thereafter surrendered for
conversion shall be entitled to receive that number of shares of Common Stock
which it would have owned had such Security been converted immediately prior to
the happening of such event. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case of a
dividend or distribution and shall become effective immediately after the
effective date in the case of subdivision or combination.
(b) In case the Company shall issue rights or warrants to all or
substantially all holders of its Common Stock entitling them (for a period
commencing no earlier than the record date described below and expiring not more
than 60 days after such record date) to subscribe for or purchase shares of
Common Stock (or securities convertible into Common Stock) at a price per share
(or having a conversion price per share) less than the current market price per
share of Common Stock (as determined in accordance with subsection (d) of this
Section 4.6) on the record date for the determination of stockholders entitled
to receive such rights or warrants, the Conversion Price in effect immediately
prior thereto shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
such record date by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding on such record date plus the number of shares
which the aggregate offering price of the total number of shares of Common Stock
so offered (or the aggregate conversion price of the convertible securities so
offered, which shall be determined by multiplying the number of shares of Common
Stock issuable upon conversion of such convertible securities by the conversion
price per share of Common Stock pursuant to the terms of such convertible
securities) would purchase at the current market price per share (as defined in
subsection (d) of this Section 4.6) of Common Stock on such record date, and of
which the denominator shall be the number of shares of Common Stock outstanding
on such record date plus the number of additional shares of Common Stock offered
(or into which the convertible securities so offered are convertible). Such
adjustment shall be made successively whenever any such rights or warrants are
issued, and shall become effective immediately after such record date. If at the
end of the period during which such rights or warrants are exercisable not all
rights or warrants shall have been exercised, the adjusted Conversion Price
shall be immediately readjusted to what it would have been based upon the number
of additional shares of Common Stock actually issued (or the number of shares of
Common Stock issuable upon conversion of convertible securities actually
issued).
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(c) In case the Company shall distribute to all or substantially all
holders of its Common Stock any shares of Capital Stock of the Company (other
than Common Stock), evidences of indebtedness or other non-cash assets
(including securities of any person other than the Company but excluding (1)
dividends or distributions paid exclusively in cash or (2) dividends or
distributions referred to in subsection (a) of this Section 4.6), or shall
distribute to all or substantially all holders of its Common Stock rights or
warrants to subscribe for or purchase any of its securities (excluding those
rights and warrants referred to in subsection (b) of this Section 4.6), then in
each such case the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the current Conversion Price by a
fraction of which the numerator shall be the current market price per share (as
defined in subsection (d) of this Section 4.6) of the Common Stock on the record
date mentioned below less the fair market value on such record date (as
determined by the Board of Directors, whose determination shall be conclusive
evidence of such fair market value and which shall be evidenced by an Officers'
Certificate delivered to the Trustee) of the portion of the Capital Stock,
evidences of indebtedness or other non-cash assets so distributed or of such
rights or warrants applicable to one share of Common Stock (determined on the
basis of the number of shares of Common Stock outstanding on the record date),
and of which the denominator shall be the current market price per share (as
defined in subsection (d) of this Section 4.6) of the Common Stock on such
record date. Such adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive such
distribution.
(1) In case the Company shall, by dividend or otherwise, at
any time distribute (a "Triggering Distribution") to all or
substantially all holders of its Common Stock cash in an aggregate
amount that, together with the aggregate amount of (A) any cash and the
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate delivered to the Trustee) of any
other consideration payable in respect of any tender offer by the
Company or a Subsidiary of the Company for Common Stock consummated
within the 12 months preceding the date of payment of the Triggering
Distribution and in respect of which no Conversion Price adjustment
pursuant to this Section 4.6 has been made and (B) all other cash
distributions to all or substantially all holders of its Common Stock
made within the 12 months preceding the date of payment of the
Triggering Distribution and in respect of which no Conversion Price
adjustment pursuant to this Section 4.6 has been made, exceeds an
amount equal to 10.0% of the product of the current market price per
share of Common Stock (as determined in accordance with subsection (d)
of this Section 4.6) on the Business Day (the "Determination Date")
immediately preceding the day on which such Triggering Distribution is
declared by the Company multiplied by the number of shares of Common
Stock outstanding on the Determination Date (excluding shares held in
the treasury of the Company), the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying such
Conversion Price in effect immediately prior to the Determination Date
by a fraction of which the numerator shall be the current market price
per share of the Common Stock (as determined in accordance with
subsection (d) of this Section 4.6) on the Determination Date less the
sum of the aggregate amount of cash and the aggregate fair market value
(determined as aforesaid in this Section 4.6(c)(1)) of any such other
consideration so distributed, paid or payable within such 12 months
(including, without limitation, the Triggering Distribution) applicable
to one share of Common Stock (determined on the basis of the number of
shares of Common Stock outstanding on the Determination Date) and the
denominator shall be such current market price per share of the Common
Stock (as determined in accordance with subsection (d) of this Section
4.6) on the Determination Date, such reduction to become effective
immediately prior to the opening of business on the day next following
the date on which the Triggering Distribution is paid.
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(2) In case any tender offer made by the Company or any of its
Subsidiaries for Common Stock shall expire and such tender offer (as
amended upon the expiration thereof) shall involve the payment of
aggregate consideration in an amount (determined as the sum of the
aggregate amount of cash consideration and the aggregate fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive evidence thereof and which shall be evidenced by an
Officers' Certificate delivered to the Trustee thereof) of any other
consideration) that, together with the aggregate amount of (A) any cash
and the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive evidence thereof and which
shall be evidenced by an Officers' Certificate delivered to the
Trustee) of any other consideration payable in respect of any other
tender offers by the Company or any Subsidiary of the Company for
Common Stock consummated within the 12 months preceding the date of the
Expiration Date (as defined below) and in respect of which no
Conversion Price adjustment pursuant to this Section 4.6 has been made
and (B) all cash distributions to all or substantially all holders of
its Common Stock made within the 12 months preceding the Expiration
Date and in respect of which no Conversion Price adjustment pursuant to
this Section 4.6 has been made, exceeds an amount equal to 10.0% of the
product of the current market price per share of Common Stock (as
determined in accordance with subsection (d) of this Section 4.6) as of
the last date (the "Expiration Date") tenders could have been made
pursuant to such tender offer (as it may be amended) (the last time at
which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the "Expiration Time") multiplied by the
number of shares of Common Stock outstanding (including tendered shares
but excluding any shares held in the treasury of the Company) at the
Expiration Time, then, immediately prior to the opening of business on
the day after the Expiration Date, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to close
of business on the Expiration Date by a fraction of which the numerator
shall be the product of the number of shares of Common Stock
outstanding (including tendered shares but excluding any shares held in
the treasury of the Company) at the Expiration Time multiplied by the
current market price per share of the Common Stock (as determined in
accordance with subsection (d) of this Section 4.6) on the Trading Day
next succeeding the Expiration Date and the denominator shall be the
sum of (x) the aggregate consideration (determined as aforesaid)
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of all shares validly
tendered and not withdrawn as of the Expiration Time (the shares deemed
so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares and excluding any
shares held in the treasury of the Company) at the Expiration Time and
the current market price per share of Common Stock (as determined in
accordance with subsection (d) of this Section 4.6) on the Trading Day
next succeeding the Expiration Date, such reduction to become effective
immediately prior to the opening of business on the day following the
Expiration Date. In the event that the Company is obligated to purchase
shares pursuant to any such tender offer, but the Company is
permanently prevented by applicable law from effecting any or all such
purchases or any or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would
have been in effect based upon the number of shares actually purchased.
If the application of this Section 4.6(c)(2) to any tender offer would
result in an increase in the Conversion Price, no adjustment shall be
made for such tender offer under this Section 4.6(c)(2).
29
(3) For purposes of this Section 4.6(c), the term "tender
offer" shall mean and include both tender offers and exchange offers,
all references to "purchases" of shares in tender offers (and all
similar references) shall mean and include both the purchase of shares
in tender offers and the acquisition of shares pursuant to exchange
offers, and all references to "tendered shares" (and all similar
references) shall mean and include shares tendered in both tender
offers and exchange offers.
(d) For the purpose of any computation under subsections (b) and (c) of
this Section 4.6, the current market price per share of Common Stock on any date
shall be deemed to be the average of the daily closing prices for the 30
consecutive Trading Days commencing 45 Trading Days before (i) the Determination
Date or the Expiration Date, as the case may be, with respect to distributions
or tender offers under subsection (c) of this Section 4.6 or (ii) the record
date with respect to distributions, issuances or other events requiring such
computation under subsection (b) or (c) of this Section 4.6. The closing price
for each day shall be the last reported sales price or, in case no such reported
sale takes place on such date, the average of the reported closing bid and asked
prices in either case on the NNM or, if the Common Stock is not listed or
admitted to trading on the NNM, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading or, if not listed or
admitted to trading on the NNM or any national securities exchange, the last
reported sales price of the Common Stock as quoted on NASDAQ or, in case no
reported sales takes place, the average of the closing bid and asked prices as
quoted on NASDAQ or any comparable system or, if the Common Stock is not quoted
on NASDAQ or any comparable system, the closing sales price or, in case no
reported sale takes place, the average of the closing bid and asked prices, as
furnished by any two members of the National Association of Securities Dealers,
Inc. selected from time to time by the Company for that purpose. If no such
prices are available, the current market price per share shall be the fair value
of a share of Common Stock as determined by the Board of Directors (which shall
be evidenced by an Officers' Certificate delivered to the Trustee).
(e) In any case in which this Section 4.6 shall require that an
adjustment be made following a record date or a Determination Date or Expiration
Date, as the case may be, established for purposes of this Section 4.6, the
Company may elect to defer (but only until five Business Days following the
filing by the Company with the Trustee of the certificate described in Section
4.9) issuing to the Holder of any Security converted after such record date or
Determination Date or Expiration Date the shares of Common Stock and other
Capital Stock of the Company issuable upon such conversion over and above the
shares of Common Stock and other Capital Stock of the Company issuable upon such
30
conversion only on the basis of the Conversion Price prior to adjustment; and,
in lieu of the shares the issuance of which is so deferred, the Company shall
issue or cause its transfer agents to issue due bills or other appropriate
evidence prepared by the Company of the right to receive such shares. If any
distribution in respect of which an adjustment to the Conversion Price is
required to be made as of the record date or Determination Date or Expiration
Date therefor is not thereafter made or paid by the Company for any reason, the
Conversion Price shall be readjusted to the Conversion Price which would then be
in effect if such record date had not been fixed or such effective date or
Determination Date or Expiration Date had not occurred.
Section 4.7 No Adjustment
No adjustment in the Conversion Price shall be required unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Price as last adjusted; provided, however, that any adjustments which
by reason of this Section 4.7 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article IV shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
No adjustment need be made for issuances of Common Stock pursuant to a
Company plan for reinvestment of dividends or interest or for a change in the
par value or a change to no par value of the Common Stock.
To the extent that the Securities become convertible into the right to
receive cash, no adjustment need be made thereafter as to the cash. Interest
will not accrue on the cash.
Section 4.8 Adjustment for Tax Purposes
The Company shall be entitled to make such reductions in the Conversion
Price, in addition to those required by Section 4.6, as it in its discretion
shall determine to be advisable in order that any stock dividends, subdivisions
of shares, distributions of rights to purchase stock or securities or
distributions of securities convertible into or exchangeable for stock hereafter
made by the Company to its stockholders shall not be taxable.
Section 4.9 Notice of Adjustment
Whenever the Conversion Price or conversion privilege is adjusted, the
Company shall promptly mail to Securityholders a notice of the adjustment and
file with the Trustee an Officers' Certificate briefly stating the facts
requiring the adjustment and the manner of computing it. Unless and until the
Trustee shall receive an Officers' Certificate setting forth an adjustment of
the Conversion Price, the Trustee may assume without inquiry that the Conversion
Price has not been adjusted and that the last Conversion Price of which it has
knowledge remains in effect.
Section 4.10 Notice of Certain Transactions
In the event that:
(1) the Company takes any action which would require an
adjustment in the Conversion Price;
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(2) the Company consolidates or merges with, or transfers all
or substantially all of its property and assets to, another corporation
and shareholders of the Company must approve the transaction; or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least ten days before such date. Failure to mail such notice or
any defect therein shall not affect the validity of any transaction referred to
in clause (1), (2) or (3) of this Section 4.10.
Section 4.11 Effect of Reclassification, Consolidation, Merger or Sale on
Conversion Privilege
If any of the following shall occur, namely: (a) any reclassification
or change of shares of Common Stock issuable upon conversion of the Securities
(other than a change in par value, or from par value to no par value, or from no
par value to par value, or as a result of a subdivision or combination, or any
other change for which an adjustment is provided in Section 4.6); (b) any
consolidation or merger or combination to which the Company is a party other
than a merger in which the Company is the continuing corporation and which does
not result in any reclassification of, or change (other than in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination) in, outstanding shares of Common Stock;
or (c) any sale or conveyance as an entirety or substantially as an entirety of
the property and assets of the Company, directly or indirectly, to any person,
then the Company, or such successor, purchasing or transferee corporation, as
the case may be, shall, as a condition precedent to such reclassification,
change, combination, consolidation, merger, sale or conveyance, execute and
deliver to the Trustee a supplemental indenture providing that the Holder of
each Security then outstanding shall have the right to convert such Security
into the kind and amount of shares of stock and other securities and property
(including cash) receivable upon such reclassification, change, combination,
consolidation, merger, sale or conveyance by a holder of the number of shares of
Common Stock deliverable upon conversion of such Security immediately prior to
such reclassification, change, combination, consolidation, merger, sale or
conveyance. Such supplemental indenture shall provide for adjustments of the
Conversion Price which shall be as nearly equivalent as may be practicable to
the adjustments of the Conversion Price provided for in this Article IV. If, in
the case of any such consolidation, merger, combination, sale or conveyance, the
stock or other securities and property (including cash) receivable thereupon by
a holder of Common Stock include shares of stock or other securities and
property of a person other than the successor, purchasing or transferee
corporation, as the case may be, in such consolidation, merger, combination,
sale or conveyance, then such supplemental indenture shall also be executed by
such other person and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The provisions of this
Section 4.11 shall similarly apply to successive reclassifications, changes,
combinations, consolidations, mergers, sales or conveyances.
In the event the Company shall execute a supplemental indenture
pursuant to this Section 4.11, the Company shall promptly file with the Trustee
(x) an Officers' Certificate briefly stating the reasons therefor, the kind or
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amount of shares of stock or other securities or property (including cash)
receivable by Holders of the Securities upon the conversion of their Securities
after any such reclassification, change, combination, consolidation, merger,
sale or conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (y) an Opinion of Counsel that
all conditions precedent have been complied with, and shall promptly mail notice
thereof to all Holders.
Section 4.12 Trustee's Disclaimer
The Trustee shall have no duty to determine when an adjustment under
this Article IV should be made, how it should be made or what such adjustment
should be, but may accept as conclusive evidence of that fact or the correctness
of any such adjustment, and shall be protected in relying upon, an Officers'
Certificate including the Officers' Certificate with respect thereto which the
Company is obligated to file with the Trustee pursuant to Section 4.9. The
Trustee makes no representation as to the validity or value of any securities or
assets issued upon conversion of Securities, and the Trustee shall not be
responsible for the Company's failure to comply with any provisions of this
Article IV.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 4.11, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 4.11.
Section 4.13 Voluntary Reduction
The Company from time to time may reduce the Conversion Price by any
amount for any period of time if the period is at least 20 days and if the
reduction is irrevocable during the period if the Board of Directors determines
that such reduction would be in the best interest of the Company and the Company
provides 15 days prior notice of any reduction in the Conversion Price;
provided, however, that in no event may the Company reduce the Conversion Price
to be less than the par value of a share of Common Stock. Any reduction in the
Conversion Price in accordance with this Section 4.13 shall apply only to
conversions completed on a Conversion Date occurring within the time period
during which such reduced Conversion Price is in effect. Any conversion
completed on a Conversion Date occurring prior to such period shall not be
retroactively recalculated to take into effect such reduced Conversion Price.
ARTICLE V
REPURCHASE OF SECURITIES AT OPTION OF
THE HOLDER ON SPECIFIC DATES
Section 5.1 Optional Put
On March 20, 2007, March 15, 2012 and March 15, 2017 (each, an
"Optional Repurchase Date"), each Holder shall have the right, at the Holder's
option, to require the Company to repurchase, and upon the exercise of such
right the Company shall repurchase, all of such Holder's Securities not
theretofore called for redemption, or any portion of the principal amount
thereof that is equal to $1,000 or an integral multiple thereof as directed by
such Holder pursuant to Section 5.3 (provided that no single Security may be
repurchased in part unless the portion of the principal amount of such
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Securities to be outstanding after such repurchase is equal to $1,000 or an
integral multiple thereof), at a purchase price equal to 100% of the principal
amount of the Security to be repurchased plus accrued and unpaid interest
(including Contingent Interest), if any, on such Optional Repurchase Date (the
"Optional Repurchase Price").
Securities shall be repurchased by the Company pursuant to this Section
5.1 and paragraph 7(a) of the Securities on the Optional Repurchase Date, at the
Repurchase Price, at the option of the Holder thereof, upon:
(a) delivery to the Paying Agent by the Holder of a written notice of
purchase (an "Optional Repurchase Notice") at any time from the opening of
business on the date that is 20 Business Days prior to an Optional Repurchase
Date until the close of business on such Optional Repurchase Date stating:
(1) the certificate number of the Security which the Holder
will deliver to be repurchased,
(2) the portion of the principal amount of the Security which
the Holder will deliver to be repurchased, which portion must be $1,000
or an integral multiple thereof,
(3) that such Security shall be purchased as of the Optional
Repurchase Date pursuant to the terms and conditions specified under
paragraph 7(a) of the Securities and in this Indenture, and
(4) in the event that the Company elects, pursuant to Section
5.2 hereof, to pay the Optional Repurchase Price to be paid as of the
Optional Repurchase Date occurring on March 20, 2007, in whole or in
part, in shares of Common Stock but such portion of the Optional
Repurchase Price shall ultimately be payable to such Holder entirely in
cash because any of the conditions to payment of the Optional
Repurchase Price in shares of Common Stock is not satisfied prior to
the close of business on such Optional Repurchase Date, as set forth in
Section 5.3 hereof, whether such Holder elects (i) to withdraw such
Optional Repurchase Notice as to some or all of the Securities to which
such Optional Repurchase Notice relates (stating the principal amount
and certificate numbers of the Securities as to which such withdrawal
shall relate), or (ii) to receive cash in respect of the entire
Optional Repurchase Price for all Securities (or portions thereof) to
which such Optional Repurchase Price relates, and
(b) delivery of such Security to the Paying Agent prior to, on or after
the Optional Repurchase 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 Optional Repurchase Price therefor; provided, however, that such
Optional Repurchase Price shall be so paid pursuant to this Article V only if
the Security so delivered to the Paying Agent shall conform in all respects to
the description thereof in the related Optional Repurchase Notice.
If a Holder, in such Holder's Optional Repurchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the terms of
Section 5.9 hereof, fails to indicate such Holder's choice with respect to the
election set forth in clause (4) of Section 5.1(a), such Holder shall be deemed
to have elected to receive cash in respect of the Optional Repurchase Price for
all Securities subject to the Optional Repurchase Notice in the circumstances
set forth in such clause (4).
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The Company shall purchase from the Holder thereof, pursuant to this
Article V, 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 Article V shall be consummated by the delivery of the consideration to be
received by the Holder promptly following the later of the Optional Repurchase
Date and the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Optional Repurchase Notice contemplated by this Section
5.1 shall have the right to withdraw such Optional Repurchase Notice at any time
prior to the close of business on the Optional Repurchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section 5.9.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Optional Repurchase Notice or written notice of withdrawal thereof.
Section 5.2 The Company's Right to Elect Manner of Payment of Optional
Repurchase Price on March 20, 2007
The Optional Repurchase Price of Securities on March 20, 2007, in
respect of which an Optional Repurchase Notice pursuant to Section 5.1 has been
given, or a specified percentage thereof, will be paid by the Company, at the
election of the Company, with cash or shares of Common Stock or in any
combination of cash and shares of Common Stock, subject to the conditions set
forth in Section 5.2 and 5.3 hereof. The Company shall designate, in the Company
Notice delivered pursuant to Section 5.5 hereof, whether the Company will
purchase the Securities for cash or shares of Common Stock, or, if a combination
thereof, the percentages of the Optional Repurchase Price of Securities in
respect of which it will pay in cash and shares of Common Stock; provided that
the Company will pay cash for fractional interests in shares of 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 Article
V shall receive the same percentage of cash or shares of Common Stock in payment
of the Optional Repurchase Price for such Securities, except (i) as provided in
Section 5.4 with regard to the payment of cash in lieu of fractional shares of
Common Stock and (ii) in the event that the Company is unable to purchase the
Securities of a Holder or Holders for shares of Common Stock because any
necessary qualifications or registrations of the shares of 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 5.2 or pursuant to Section 5.4 in the
event of a failure to satisfy, prior to the close of business on the Optional
Repurchase Date, any condition to the payment of the Optional Repurchase Price,
in whole or in part, in shares of Common Stock.
35
At least three Business Days before the Company Notice Date, the
Company shall deliver an Officers' Certificate to the Trustee specifying:
(1) the manner of payment selected by the Company,
(2) the information required by Section 5.5,
(3) if the Company elects to pay the Optional Repurchase
Price, or a specified percentage thereof, in shares of Common Stock,
that the conditions to such manner of payment set forth in Section 5.4
have been or will be complied with, and
(4) whether the Company desires the Trustee to give the
Company Notice required by Section 5.5.
Section 5.3 Purchase with Cash
On the Optional Repurchase Date occurring on March 20, 2007, at the
option of the Company, the Optional Repurchase Price of Securities in respect of
which an Optional Repurchase Notice pursuant to Section 5.1 has been given, or a
specified percentage thereof, may be paid by the Company with cash equal to the
aggregate Optional Repurchase Price of such Securities. If the Company elects to
purchase Securities on the Optional Repurchase Date occurring on March 20, 2007
with cash, the Repurchase Press Release, as provided in Section 5.5, shall be
issued and the Company Notice, as provided in Section 5.5, shall be sent to
Holders (and to beneficial owners as required by applicable law), in each case
not later than the Company Notice Date, as provided in Section 5.5. On the
Optional Repurchase Dates occurring on March 15, 2012 and March 15, 2017, the
Optional Repurchase Price of the Securities in respect of which an Optional
Repurchase Notice pursuant to Section 5.1 has been given must be paid in cash.
Section 5.4 Payment by Issuance of Shares of Common Stock on March 20, 2007
On the Optional Repurchase Date occurring on March 20, 2007 only (but
not on the Optional Repurchase Dates occurring on March 15, 2012 and March 15,
2017), at the option of the Company, the Optional Repurchase Price of Securities
in respect of which Optional Repurchase Notices, pursuant to Section 5.1 have
been given, or a specified percentage thereof, may be paid by the Company by the
issuance of a number of shares of Common Stock equal to the quotient obtained by
dividing (i) the amount of cash to which the Holders would have been entitled
had the Company elected to pay all or such specified percentage, as the case may
be, of the Optional Repurchase Price of such Securities in cash by (ii) either
(x) 95% of the Market Price of a share of Common Stock (if the Company elects to
pay 33% or less of the Optional Repurchase Price in respect of which Optional
Repurchase Notices pursuant to Section 5.1 have been given in shares of Common
Stock) or (y) 93% of the Market Price of a share of Common Stock (if the Company
elects to pay more than 33% of the Optional Repurchase Price in respect of which
Optional Repurchase Notices pursuant to Section 5.1 have been given in shares of
Common Stock), subject to the next succeeding paragraph.
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The Company will not issue a fractional share of Common Stock in
payment of the Optional Repurchase Price. Instead the Company will pay cash for
the current market value of the fractional share. The current market value of a
fraction of a share of Common Stock shall be determined by multiplying the
Market Price by such fraction and rounding the product to the nearest whole cent
with one half cent being rounded upwards. It is understood that if a Holder
elects to have more than one Security repurchased, the number of shares of
Common Stock shall be based on the aggregate amount of Securities to be
repurchased.
If the Company elects to purchase the Securities by the issuance of
shares of Common Stock (i) the Repurchase Press Release, as provided in Section
5.5, shall be issued and the Company Notice, as provided in Section 5.5, shall
be sent to the Holders (and to beneficial owners as required by applicable law),
in each case not later than the Company Notice Date, as provided in Section 5.5,
and (ii) each Holder delivering an Optional Repurchase Notice shall receive the
same proportion of shares of Common Stock and cash for the Securities of such
Holder to be repurchased.
The Company's right to exercise its election to purchase the Securities
pursuant to this Article V through the issuance of shares of Common Stock shall
be conditioned upon:
(a) 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 election to
purchase all or a specified percentage of the Securities with shares of Common
Stock as provided herein;
(b) the registration of the shares of Common Stock to be issued in
respect of the payment of the Optional Repurchase Price under the Securities Act
or the Exchange Act, in each case, if required for the initial issuance thereof;
(c) any necessary qualification or registration under applicable state
securities laws or the availability of an exemption from such qualification and
registration; and
(d) 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 Common Stock are in conformity with this Indenture and (B) the shares of
Common Stock to be issued by the Company in payment of the Optional Repurchase
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 Optional
Repurchase 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 Officer's Certificate, stating that
conditions (a), (b) and (c) 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 conditions (b) and (c) above have been satisfied.
Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 principal amount of Securities and the
Sale Price of a share of 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 three Business Days prior to the applicable Optional
Repurchase Date. The Company may pay the Optional Repurchase Price (or any
portion thereof) in shares of Common Stock only if the information necessary to
37
calculate the Market Price is published in The Wall Street Journal or another
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 Optional Repurchase Date and the Company has elected to repurchase the
Securities pursuant to this Article V through the issuance of shares of Common
Stock, the Company shall pay, without further notice, the entire Optional
Repurchase Price of the Securities of such Holder or Holders in cash.
Section 5.5 Notice of Election
Not less than 20 Business Days prior to each Optional Repurchase Date
(the "Company Notice Date"), the Company shall (i) issue a press release for
publication on the PR Newswire or an equivalent newswire service giving notice
of such Optional Repurchase Date (a "Repurchase Press Release" ) and (ii)
deliver to the Holders in the manner provided in Section 13.2 its notice of
election to repurchase Securities with cash or shares of Common Stock or any
combination thereof, as applicable, on such Optional Repurchase Date (the
"Company Notice"). Such Company Notice shall state the manner of payment elected
and shall contain the following information:
In the event the Company has elected to pay the Optional Repurchase
Price (or a specified percentage thereof) on the Optional Repurchase Date
occurring on March 20, 2007 with shares of Common Stock, the Company Notice
shall:
(a) state that each Holder will receive shares of Common Stock with a
Market Price equal to such specified percentage of the Optional Repurchase Price
of the Securities held by such Holder (except any cash amount to be paid in lieu
of fractional shares);
(b) set forth the method of calculating the Market Price of the shares
of Common Stock; and
(c) state that because the Market Price of shares of Common Stock will
be determined prior to the Optional Repurchase Date, Holders will bear the
market risk with respect to the value of the shares of Common Stock to be
received from the date such Market Price is determined to the Optional
Repurchase Date.
In any case, each Company Notice shall include a form of Optional
Repurchase Notice to be completed by a Holder and shall state:
(d) the Optional Repurchase Price and the Conversion Rate;
(e) the name and address of the Paying Agent and the Conversion Agent;
(f) that Securities as to which an Optional Repurchase Notice has been
given may be converted pursuant to Article IV hereof only if the applicable
Optional Repurchase Notice has been withdrawn in accordance with the terms of
this Indenture;
(g) that Securities must be surrendered to the Paying Agent to collect
payment;
38
(h) that the Optional Repurchase Price for any Security as to which an
Optional Repurchase Notice has been given and not withdrawn will be paid
promptly following the later of the Optional Repurchase Date and the time of
surrender of such Security as described in (g);
(i) the procedures the Holder must follow to exercise repurchase rights
under this Article V and a brief description of those rights;
(j) briefly, the conversion rights of the Securities; and
(k) the procedures for withdrawing an Optional Repurchase Notice
(including, without limitation, for a conditional withdrawal pursuant to the
terms of Sections 5.1 or 5.9).
If any of the Securities to be redeemed is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the applicable procedures of the Depositary. 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.
Upon determination of the actual number of shares of Common Stock to be
issued for each $1,000 principal amount of Securities, the Company will publish
such determination at the Company's web site on the World Wide Web or through
such other public medium as the Company may use at that time.
Section 5.6 Covenants of the Company
All shares of 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. The Company shall use its
reasonable efforts to list or cause to have quoted any shares of Common Stock to
be issued to purchase Securities on the principal national securities exchange
or over-the-counter or other domestic market on which the shares of Common Stock
are then listed or quoted.
Section 5.7 Procedure upon Repurchase
The Company shall deposit cash (in respect of a cash purchase under
Section 5.3 or for fractional shares of Common Stock, as applicable) or shares
of Common Stock, or a combination thereof, as applicable, at the time and in the
manner as provided in Section 5.10, sufficient to pay the aggregate Optional
Repurchase Price of all Securities to be purchased on the applicable Optional
Repurchase Date pursuant to this Article V.
As soon as practicable after the Optional Repurchase Date, the Company
shall deliver to each Holder entitled to receive shares of Common Stock through
the Paying Agent, a certificate for the number of full shares of Common Stock
issuable in payment of the Optional Repurchase Price and cash in lieu of any
fractional shares of Common Stock. The Person in whose name the certificate for
shares of Common Stock is registered shall be treated as a holder of record of
shares of Common Stock on the Business Day next following the Optional
Repurchase Date. Subject to Section 5.4, no payment or adjustment will be made
for dividends on the shares of Common Stock the record date for which occurred
on or prior to the Optional Repurchase Date.
39
Section 5.8 Taxes
If a Holder of a Security is paid in shares of Common Stock, the
Company shall pay any documentary, stamp or similar issue or transfer tax due on
such issue of shares of Common Stock. However, the Holder shall pay any such tax
which is due because the Holder requests the shares of 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 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 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 5.9 Effect of Optional Repurchase Notice
Upon receipt by the Paying Agent of the Optional Repurchase Notice, the
Holder of the Security in respect of which such Optional Repurchase Notice was
given shall (unless such Optional Repurchase Notice is withdrawn as specified in
the following two paragraphs) thereafter be entitled to receive solely the
Optional Repurchase Price with respect to such Security. Such Optional
Repurchase Price shall be paid to such Holder, subject to receipt of funds
and/or shares of Common Stock by the Paying Agent, promptly following the later
of (x) the Optional Repurchase Date with respect to such Security (provided the
conditions in Section 5.1 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 5.1. Securities in respect of which an Optional Repurchase Notice has
been given by the Holder thereof may not be converted pursuant to Article IV
hereof on or after the date of the delivery of such Optional Repurchase Notice
unless such Optional Repurchase Notice has first been validly withdrawn as
specified in the following two paragraphs.
An Optional Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the Optional Repurchase Notice at anytime prior to the close of business on
the applicable Optional Repurchase Date specifying:
(a) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted;
(b) the principal amount of the Security with respect to which such
notice of withdrawal is being submitted; and
(c) the principal amount, if any, of such Security which remains
subject to the original Optional Repurchase Notice and which has been or will be
delivered for purchase by the Company.
A written notice of withdrawal of an Optional Repurchase 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 an Optional Repurchase Notice pursuant to
40
the terms of Section 5.1(a)(4) or (ii) a conditional withdrawal containing the
information set forth in Section 5.1(a)(4) and the immediately preceding
paragraph and contained in a written notice of withdrawal delivered to the
Paying Agent as set forth in the immediately preceding paragraph.
There shall be no purchase of any Securities pursuant to this Article V
(other than through the issuance of shares of Common Stock in payment of the
Optional Repurchase Price, including cash in lieu of fractional shares) 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 Optional Repurchase Notice) and is
continuing an Event of Default (other than a default in the payment of the
Optional Repurchase Price with respect to such Securities). The Paying Agent
will promptly return to the respective Holders thereof any Securities (x) with
respect to which an Optional Repurchase Notice 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 Optional Repurchase Price
with respect to such Securities) in which case, upon such return, the Optional
Repurchase Notice with respect thereto shall be deemed to have been withdrawn.
Section 5.10 Deposit of Optional Repurchase Price
Prior to 11:00 a.m., New York City time, on the Business Day next
following the Optional Repurchase Date, the Company shall deposit with the
Trustee or with the Paying Agent an amount of money (in immediately available
funds if deposited on such Business Day) and/or shares of Common Stock, if
permitted hereunder, sufficient to pay the aggregate Optional Repurchase Price
of all of the Securities or portions thereof which are to be purchased as of the
Optional Repurchase Date.
Section 5.11 Securities Repurchased in Part
Any 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 or 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 5.12 Comply with Securities Laws Upon Purchase of Securities
In connection with any offer to purchase or purchase of Securities
under this Article V (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 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
Article V to be exercised in the time and in the manner specified in this
Article V.
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Section 5.13 Repayment to the Company
The Trustee and the Paying Agent shall return to the Company any cash
or shares of Common Stock that remain unclaimed for two years, subject to
applicable unclaimed property law, together with interest or dividends, if any,
thereon held by them for the payment of the Optional Repurchase Price; provided,
however, that to the extent that the aggregate amount of cash or shares of
Common Stock deposited by the Company pursuant to Section 5.10 exceeds the
aggregate Optional Repurchase Price of the Securities or portions thereof which
the Company is obligated to purchase as of the Optional Repurchase Date, then
promptly after the Business Day next following the Optional Repurchase Date the
Trustee shall return any such excess to the Company together with interest or
dividends, if any, thereon. After that, Holders entitled to money must look to
the Company for payment as general creditors, unless an applicable abandoned
property law designates another Person.
Section 5.14 Conversion Arrangement on Repurchase
Any Securities required to be repurchased under this Article V, unless
surrendered for conversion before the close of business on the Optional
Repurchase Date, may be deemed to be purchased from the Holders of such
Securities for an amount in cash not less than the Optional Repurchase 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 Common Stock of the Company and to make payment for such Securities to
the Trustee in trust for such Holders.
ARTICLE VI
COVENANTS
Section 6.1 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 and this
Indenture. An installment of principal or interest (including Contingent
Interest) shall be considered paid on the date it is due if the Paying Agent
(other than the Company) holds by 11:00 a.m., New York City time, on that date
money, deposited by the Company or an Affiliate thereof, sufficient to pay the
installment. The Company shall, to the fullest extent permitted by law, pay
interest on overdue principal (including premium, if any) and overdue
installments of interest (including Contingent Interest) at the rate borne by
the Securities per annum. All references in this Indenture or the Securities to
interest shall be deemed to include Liquidated Damages, if any, payable pursuant
to the Registration Rights Agreement.
Payment of the principal of (and premium, if any) and any interest
(including Contingent Interest) on the Securities shall be made at the Corporate
Trust Office of the Paying Agent specified in Section 2.3 in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address appears in the Register;
provided further that a Holder with an aggregate principal amount in excess of
$2,000,000 will be paid by wire transfer in immediately available funds at the
written election of such Holder delivered to the Paying Agent at least ten (10)
Business Days prior to the Regular Record Date for the next succeeding Interest
Payment Date.
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Section 6.2 SEC Reports
The Company shall file all reports and other information and documents
which it is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act, and within 15 days after it files them with the SEC, the Company
shall file copies of all such reports, information and other documents with the
Trustee.
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 exclusively on Officers' Certificates).
Section 6.3 Compliance Certificates
The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year of the Company (beginning with the fiscal year ending
December 31, 2002), an Officers' Certificate as to the signer's knowledge of the
Company's compliance with all conditions and covenants on its part contained in
this Indenture and stating whether or not the signer knows of any default or
Event of Default. If such signer knows of such a default or Event of Default,
the Officers' Certificate shall describe the default or Event of Default and the
efforts to remedy the same. For the purposes of this Section 6.3, compliance
shall be determined without regard to any grace period or requirement of notice
provided pursuant to the terms of this Indenture.
Section 6.4 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 6.5 Maintenance of Corporate Existence
Subject to Article VII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
Section 6.6 Rule 144A Information Requirement
Within the period prior to the expiration of the holding period
applicable to sales of Restricted Securities under Rule 144(k) under the
Securities Act (or any successor provision), the Company covenants and agrees
that it shall, during any period in which it is not subject to Section 13 or
15(d) under the Exchange Act, make available to any Holder or beneficial holder
of Securities or any Common Stock issued upon conversion thereof which continue
to be Restricted Securities in connection with any sale thereof and any
prospective purchaser of Securities or such Common Stock designated by such
Holder or beneficial holder, the information required pursuant to Rule
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144A(d)(4) under the Securities Act upon the request of any Holder or beneficial
holder of the Securities or such Common Stock and it will take such further
action as any Holder or beneficial holder of such Securities or such Common
Stock may reasonably request, all to the extent required from time to time to
enable such Holder or beneficial holder to sell its Securities or Common Stock
without registration under the Securities Act within the limitation of the
exemption provided by Rule 144A, as such Rule may be amended from time to time.
Upon the request of any Holder or any beneficial holder of the Securities or
such Common Stock, the Company will deliver to such Holder a written statement
as to whether it has complied with such requirements.
Section 6.7 Stay, Extension and Usury Laws
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law or other
law which would prohibit or forgive the Company from paying all or any portion
of the principal of, premium, if any, or interest (including Liquidated Damages,
if any) on the Securities as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and the Company (to the extent it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, 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.
Section 6.8 Payment of Liquidated Damages
If Liquidated Damages are payable by the Company pursuant to the
Registration Rights Agreement, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such Liquidated Damages
that is payable and (ii) the date on which such Liquidated Damages are payable.
Unless and until a Trust Officer of the Trustee actually receives such a
certificate, the Trustee may assume without inquiry that no such Liquidated
Damages are payable. If the Company has paid Liquidated Damages directly to the
Persons entitled to it, the Company shall deliver to the Trustee a certificate
setting forth the particulars of such payment.
Section 6.9 Resale of Certain Securities
During the period of two years after the last date of original issuance
of any Securities, the Company shall not, and shall not permit any of its
"affiliates" (as defined under Rule 144 under the Securities Act) to, resell any
Securities, or shares of Common Stock issuable upon conversion of the
Securities, which constitute "restricted securities" under Rule 144, that are
acquired by any of them within the United States or to "U.S. persons" (as
defined in Regulation S) except pursuant to an effective registration statement
under the Securities Act or an applicable exemption therefrom. The Trustee shall
have no responsibility or liability in respect of the Company's performance of
its agreement in the preceding sentence.
Section 6.10 Tax Treatment of Securities
The Company agrees, and by acceptance of beneficial ownership interest
in the Securities each beneficial holder of Securities will be deemed to have
agreed, for United States federal income tax purposes (1) to treat the
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Securities as indebtedness that is subject to Treas. Reg. Sec. 1.1275-4 (the
"Contingent Payment Regulations") and, for purposes of the Contingent Payment
Regulations, to treat the fair market value of any stock beneficially received
by a beneficial holder upon any conversion of the Securities as a contingent
payment and (2) to be bound by the Company's determination of the "comparable
yield" and "projected payment schedule," within the meaning of the Contingent
Payment Regulations, with respect to the Securities. A Holder of Securities may
obtain the amount of original issue discount, issue date, yield to maturity,
comparable yield and projected payment schedule by submitting a written request
for it to the Company at the following address: St. Mary Land & Exploration
Company, 1776 Lincoln Street, Suite 1100, Denver, Colorado 80203, Attention:
Chief Financial Officer.
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 7.1 Cmpany May Consolidate, Etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
(in a transaction in which the Company is not the surviving corporation) or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(1) in case the Company shall consolidate with or merge into another
Person (in a transaction in which the Company is not the surviving corporation)
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the Person formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of the Company substantially as an
entirety (i) shall be a corporation, limited liability company, partnership or
trust, shall be organized and validly existing under the laws of the United
States of America, any State thereof or the District of Columbia (whether or not
such Person is a direct or indirect subsidiary of a Person which is not
organized under the laws of any of such jurisdictions) and (ii) shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of and any premium and interest (including Contingent Interest) on
all the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed and the
conversion rights shall be provided for in accordance with Article IV, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the Person (if other than the Company) formed by
such consolidation or into which the Company shall have been merged or by the
Person which shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
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Section 7.2 Successor Substituted
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with
Section 7.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of a lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE VIII
DEFAULT AND REMEDIES
Section 8.1 Events of Default
An "Event of Default" shall occur if:
(1) the Company defaults in the payment of any interest
(including Contingent Interest) on any Security when the same becomes
due and payable and the default continues for a period of 30 days;
(2) the Company defaults in the payment of any principal of
(including, without limitation, any premium, if any, on) any Security
when the same becomes due and payable (whether at maturity, upon
redemption, on an Optional Repurchase Date, a Change in Control
Purchase Date or otherwise);
(3) the Company fails to comply with any of its other
agreements contained in the Securities or this Indenture and the
default continues for the period and after the notice specified below;
(4) a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any Indebtedness of the Company or any of its Subsidiaries
whether such Indebtedness now exists, or is created after the date of
this Indenture, which default (a) involves the failure to pay principal
of or any premium or interest on such Indebtedness when such
Indebtedness becomes due and payable at the stated maturity thereof,
and such default shall continue after any applicable grace period or
(b) results in the acceleration of such Indebtedness unpaid prior to
the stated maturity thereof and, in the case of (a) or (b), the
principal amount of such Indebtedness, together with the principal
amount of any other Indebtedness so unpaid at its stated maturity or
the stated maturity of which has been so accelerated, aggregates $10
million or more;
(5) failure by the Company or any of its Subsidiaries to pay
final judgments aggregating in excess of $10 million, which judgments
are not paid, discharged or stayed for a period of 60 days;
(6) the Company pursuant to or within the meaning of any
Bankruptcy Law:
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(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief
against it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property; or
(iv) makes a general assignment for the benefit of
its creditors; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company in an
involuntary case or proceeding;
(ii) appoints a Custodian of the Company or for all
or substantially all of the property of the Company; or
(iii) orders the liquidation of the Company;
and in each case the order or decree remains unstayed and in effect for
60 days.
The term "Bankruptcy Law" means Title 11 of the United States Code (or
any successor thereto) or any similar federal or state law for the relief of
debtors. The term "Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
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 then outstanding notify the Company and the
Trustee, of the default, and the Company does not cure the default within 60
days after receipt of such notice. The notice given pursuant to this Section 8.1
must specify the default, demand that it be remedied and state that the notice
is a "Notice of Default." When any default under this Section 8.1 is cured, it
ceases.
The Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Trust Officer at the
Corporate Trust Office of the Trustee by the Company, a Paying Agent, any Holder
or any agent of any Holder.
Section 8.2 Acceleration
If an Event of Default (other than an Event of Default specified in
clauses (6) or (7) of Section 8.1) occurs and is continuing, the Trustee may, by
written notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities then outstanding may, by written notice to
the Company and the Trustee, declare all unpaid principal on the Securities then
outstanding (if not then due and payable) to be due and payable upon any such
declaration, and the same shall become and be immediately due and payable. If an
Event of Default specified in clauses (6) or (7) of Section 8.1 occurs, all
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unpaid principal of the Securities then outstanding shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder. The Holders of a majority in aggregate principal
amount of the Securities then outstanding by written notice to the Trustee may
rescind an acceleration and its consequences if (a) all existing Events of
Default, other than the nonpayment of the principal of the Securities which has
become due solely by such declaration of acceleration, have been cured or
waived; (b) to the extent the payment of such interest is lawful, interest
(calculated at the rate per annum borne by the Securities) on overdue
installments of interest and overdue principal, which has become due otherwise
than by such declaration of acceleration, has been paid; (c) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction; and (d) all payments due to the Trustee and any predecessor
Trustee under Section 9.7 have been made. No such rescission shall affect any
subsequent default or impair any right consequent thereto.
Section 8.3 Other Remedies
If an Event of Default occurs and is continuing, the Trustee may, but
shall not be obligated to, pursue any available remedy by proceeding at law or
in equity to collect the payment of the principal of or interest 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 it does not possess any
of the Securities or does not produce any of them 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 to the
extent permitted by law.
Section 8.4 Waiver of Defaults and Events of Default
Subject to Sections 8.7 and 11.2, the Holders of a majority in
principal amount of the Securities then outstanding by notice to the Trustee may
waive an existing default or Event of Default and its consequence, except a
default or Event of Default in the payment of the principal of or interest on
any Security, a failure by the Company to convert any Securities into Common
Stock or any default or Event of Default in respect of any provision of this
Indenture or the Securities which, under Section 11.2, cannot be modified or
amended without the consent of the Holder of each Security affected. When a
default or Event of Default is waived, it is cured and ceases.
Section 8.5 Control By Majority
The Holders of a majority in principal amount of the Securities then
outstanding may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that the Trustee determines may be unduly
prejudicial to the rights of another Holder or the Trustee, or that may involve
the Trustee in personal liability unless the Trustee is furnished indemnity
satisfactory to it; provided, however, that the Trustee may take any other
action deemed proper by the Trustee which is not inconsistent with such
direction.
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Section 8.6 Limitations on Suits
A Holder may not pursue any remedy with respect to this Indenture or
the Securities (except actions for payment of overdue principal or interest
(including Contingent Interest) or for the conversion of the Securities pursuant
to Article IV) unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
then outstanding Securities make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders furnishes to the Trustee reasonable
indemnity to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the furnishing of indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Securities then outstanding.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such other
Securityholder.
Section 8.7 Rights of Holders to Receive Payment and to Convert
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Security to receive payment of the principal of and interest on the
Security, on or after the respective due dates expressed in the Security and
this Indenture, to convert such Security in accordance with Article IV and to
bring suit for the enforcement of any such payment on or after such respective
dates or the right to convert, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
Section 8.8 Collection Suit By Trustee
If an Event of Default in the payment of principal or interest
(including Contingent Interest) specified in clauses (1) or (2) of Section 8.1
occurs and is continuing, the Trustee may recover judgment in its own name and
as trustee of an express trust against the Company or another obligor on the
Securities for the whole amount of principal and accrued interest remaining
unpaid, together with, to the extent that payment of such interest is lawful,
interest on overdue principal and on overdue installments of interest (including
Contingent Interest), in each case at the rate per annum borne by the Securities
and such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
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Section 8.9 Trustee May File Proofs of Claim
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel) and the Holders allowed in
any judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any money or other property payable or deliverable on any
such claims and to distribute the same, and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 9.7, and to the extent that such payment of the reasonable compensation,
expenses, disbursements and advances in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, money, securities and other
property which the Holders may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or on behalf of any Holder, to authorize, accept or
adopt 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 8.10 Priorities
If the Trustee collects any money pursuant to this Article VIII, it
shall pay out the money in the following order:
First, to the Trustee for amounts due under Section 9.7;
Second, to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Securities for principal and
interest, respectively; and
Third, to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 8.10.
Section 8.11 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 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 8.11 does not apply to a suit made by the Trustee, a suit
by a Holder pursuant to Section 8.7, or a suit by Holders of more than 10% in
principal amount of the Securities then outstanding.
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ARTICLE IX
TRUSTEE
Section 9.1 Duties of Trustee
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as 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. The Trustee, however, shall examine any certificates
and opinions which by any provision hereof are specifically required to
be delivered to the Trustee to determine whether or not they conform to
the requirements of this Indenture.
(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 does not limit the effect of subsection (b)
of this Section 9.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust 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 8.5.
(d) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers unless the Trustee shall have received adequate indemnity in
its opinion against potential costs and liabilities incurred by it relating
thereto.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to subsections (a), (b), (c) and (d) of this Section 9.1.
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(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by applicable law.
Section 9.2 Rights of Trustee
Subject to Section 9.1:
(a) The Trustee may rely conclusively on any document believed by it to
be genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require, at
the expense of the Company, an Officers' Certificate or an Opinion of Counsel,
which shall conform to Section 13.4(b). The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Certificate
or Opinion.
(c) The Trustee may act through its agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any such action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such 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 or direction of
any of the Holders pursuant to this Indenture, unless such Holders shall have
furnished to the Trustee security or indemnity satisfactory to the Trustee
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(g) 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.
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust Officer of the Trustee has actual knowledge
thereof or unless written notice from the Company or the Holders of at least 25%
of the Securities of any event which is in fact such a default is received by
the Trustee at the Corporate Trust Office, and such notice references the
Securities and this Indenture.
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(i) 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 by it to act
hereunder.
Section 9.3 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 an
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 9.10 and 9.11.
Section 9.4 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 of the proceeds from the Securities, and it shall not be responsible for any
statement in the Indenture or the Securities other than its certificate of
authentication.
Section 9.5 Notice of Default or Events of Default
If a default or an Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to each Securityholder notice of
the default or Event of Default within 90 days after it occurs. However, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding notice is in the interests of
Securityholders, except in the case of a default or an Event of Default in
payment of the principal of or interest on any Security.
Section 9.6 Reports By Trustee To Holders
If such report is required by TIA Section 313, 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). The Trustee also shall comply with TIA
Section 313(b)(2) and (c).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the SEC and each stock exchange,
if any, on which the Securities are listed. The Company promptly shall notify
the Trustee whenever the Securities become listed on any stock exchange or
listed or admitted to trading on any quotation system and any changes in the
stock exchanges or quotation systems on which the Securities are listed or
admitted to trading and of any delisting thereof.
Section 9.7 Compensation and Indemnity
The Company shall pay to the Trustee from time to time such
compensation (as agreed to from time to time by the Company and the Trustee in
writing) for its services (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable,
actual disbursements, expenses and advances incurred or made by it. Such
expenses may include the reasonable, actual compensation, disbursements and
expenses of the Trustee's agents and counsel.
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The Company shall indemnify the Trustee or any predecessor Trustee
(which for purposes of this Section 9.7 shall include its officers, directors,
employees and agents) for, and hold it harmless against, any and all loss,
liability or expense including taxes (other than taxes based upon, measured by
or determined by the income of the Trustee), (including reasonable legal fees
and expenses) incurred by it in connection with the acceptance or administration
of its duties under this Indenture or any action or failure to act as authorized
or within the discretion or rights or powers conferred upon the Trustee
hereunder including the reasonable costs and expenses of the Trustee and its
counsel in defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder. The
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Company need not pay for any
settlement without its written consent, which shall not be unreasonably
withheld.
The Company need not reimburse the Trustee for any expense or indemnify
it against any loss or liability incurred by it resulting from its own negligent
action, negligent failure to act, bad faith or willful misconduct.
To secure the Company's payment obligations in this Section 9.7, the
Trustee shall have a senior claim to which the Securities are hereby made
subordinate on all money or property held or collected by the Trustee, except
such money or property held in trust to pay the principal of and interest on the
Securities. The obligations of the Company under this Section 9.7 shall survive
the satisfaction and discharge of this Indenture or the resignation or removal
of the Trustee.
When the Trustee incurs expenses or renders services after an Event of
Default specified in clauses (6) or (7) of Section 8.1 occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law. The provisions of this Section shall
survive the termination of this Indenture.
Section 9.8 Replacement of Trustee
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of the Securities then outstanding may
remove the Trustee by so notifying the Trustee in writing and may, with the
Company's written consent, appoint a successor Trustee. The Company may remove
the Trustee by so notifying the Trustee in writing if:
(1) the Trustee fails to comply with Section 9.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee becomes incapable of performing its duties under this
Indenture.
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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 a successor
Trustee. The resignation or removal of a Trustee shall not be effective until a
successor Trustee shall have delivered the written acceptance of its appointment
as described below.
If a successor Trustee does not take office within 45 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of 10% in principal amount of the Securities then outstanding may
petition any court of competent jurisdiction for the appointment of a successor
Trustee at the expense of the Company.
If the Trustee fails to comply with Section 9.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee and be released from its obligations (exclusive of any
liabilities that the retiring Trustee may have incurred while acting as Trustee)
hereunder, 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. A successor Trustee shall mail
notice of its succession to each Holder.
A retiring Trustee shall not be liable for the acts or omissions of any
successor Trustee after its succession.
Notwithstanding replacement of the Trustee pursuant to this Section
9.8, the Company's obligations under Section 9.7 shall continue for the benefit
of the retiring Trustee.
Section 9.9 Successor Trustee By Merger, Etc
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust assets (including the
administration of this Indenture) to, another corporation, the resulting,
surviving or transferee corporation, without any further act, shall be the
successor Trustee, provided such transferee corporation shall qualify and be
eligible under Section 9.10. Such successor Trustee shall promptly mail notice
of its succession to the Company and each Holder.
Section 9.10 Eligibility; Disqualification
The Trustee shall always satisfy the requirements of paragraphs (1),
(2) and (5) of TIA Section 310(a). The Trustee (or its parent holding company)
shall have a combined capital and surplus of at least $50,000,000. If at any
time the Trustee shall cease to satisfy any such requirements, it shall resign
immediately in the manner and with the effect specified in this Article IX. The
Trustee shall be subject to the provisions of TIA Section 310(b). Nothing herein
shall prevent the Trustee from filing with the SEC the application referred to
in the penultimate paragraph of TIA Section 310(b).
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Section 9.11 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 X
SATISFACTION AND DISCHARGE OF INDENTURE
Section 10.1 Satisfaction and Discharge of Indenture
This Indenture shall cease to be of further effect (except as to any
surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for and except as further provided below),
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(i) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.7 and (ii) Securities for whose
payment money has theretofore been deposited in trust and
thereafter repaid to the Company as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee for cancellation
(a) have become due and payable, or
(b) will become due and payable at the Final
Maturity Date within one year, or
(c) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of clause (a), (b) or (c) above,
has irrevocably deposited or caused to be irrevocably
deposited with the Trustee or a Paying Agent (other than the
Company or any of its Affiliates) as trust funds in trust for
the purpose cash in an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Final
Maturity Date or Redemption Date, as the case may be;
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(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 9.7 shall survive and,
if money shall have been deposited with the Trustee pursuant to clause (1)(ii)
of this Section, the provisions of Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.12,
Article IV, Article V, the last paragraph of Section 6.2, this Article X,
Article XII and Section 13.5, shall survive until the Securities have been paid
in full.
Section 10.2 Application of Trust Money
Subject to the provisions of Section 10.3, the Trustee or a Paying
Agent shall hold in trust, for the benefit of the Holders, all money deposited
with it pursuant to Section 10.1 and shall apply the deposited money in
accordance with this Indenture and the Securities to the payment of the
principal of and interest on the Securities.
Section 10.3 Repayment To Company
The Trustee and each Paying Agent shall promptly pay to the Company
upon request any excess money (i) deposited with them pursuant to Section 10.1
and (ii) held by them at any time.
The Trustee and each Paying Agent shall pay to the Company upon request
any money held by them for the payment of principal or interest that remains
unclaimed for two years after a right to such money has matured; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such payment, may at the expense of the Company cause to be mailed to each
Holder entitled to such money notice that such money remains unclaimed and that
after a date specified therein, which shall be at least 30 days from the date of
such mailing, any unclaimed balance of such money then remaining will be repaid
to the Company. After payment to the Company, Holders entitled to money must
look to the Company for payment as general creditors.
section 10.4 Reinstatement
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 10.2 by reason of any legal proceeding or by reason of
any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 10.1 until such
time as the Trustee or such Paying Agent is permitted to apply all such money in
accordance with Section 10.2; provided, however, that if the Company has made
any payment of the principal of or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive any such payment from the money
held by the Trustee or such Paying Agent.
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ARTICLE XI
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 11.1 Without Consent of Holders
The Company and the Trustee may amend or supplement this Indenture or
the Securities without notice to or consent of any Securityholder:
(a) to comply with Sections 4.11 and 7.1;
(b) to cure any ambiguity, defect or inconsistency;
(c) to make any other change that does not adversely effect the rights
of any Securityholder;
(d) to comply with the provisions of the TIA; or
(e) to appoint a successor Trustee.
Section 11.2 With Consent of Holders
The Company and the Trustee may amend or supplement this Indenture or
the Securities with the written consent of the Holders of at least a majority in
aggregate principal amount of the Securities then outstanding. The Holders of at
least a majority in aggregate principal amount of the Securities then
outstanding may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Securities without notice to any
Securityholder. However, notwithstanding the foregoing but subject to Section
11.4, without the written consent of each Securityholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 8.4, may not:
(a) change the Maturity of the principal of, or interest (including
Contingent Interest) on, any Security;
(b) reduce the principal amount of, or any premium or interest
(including Contingent Interest) on, any Security;
(c) reduce the amount of principal payable upon acceleration of the
maturity of any Security;
(d) change the place or currency of payment of principal of, or any
premium or interest on, any Security;
(e) impair the right to institute suit for the enforcement of any
payment on, or with respect to, any Security;
(f) adversely affect the right of Holders to convert Securities other
than as provided in or under Article IV of this Indenture;
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(g) reduce the percentage of the aggregate principal amount of the
outstanding Securities whose Holders must consent to a supplement or amendment;
(h) reduce the percentage of the aggregate principal amount of the
outstanding Securities necessary for the waiver of compliance with certain
provisions of this Indenture or the waiver of certain defaults under this
Indenture; and
(i) modify any of the provisions of this Section or Section 8.4, except
to increase any such percentage or to provide that certain provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders under this
Section 11.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 11.2
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver.
Section 11.3 Compliance With Trust Indenture Act
Every amendment to or supplement of this Indenture or the Securities
shall comply with the TIA as in effect at the date of such amendment or
supplement.
Section 11.4 Revocation and Effect of Consents
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to its Security or portion of a Security if the Trustee receives the
notice of revocation in writing before the date the amendment, supplement or
waiver becomes effective.
After an amendment, supplement or waiver becomes effective, it shall
bind every Securityholder, unless it makes a change described in any of clauses
(a) through (i) of Section 11.2. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
Section 11.5 Notation on or Exchange of Securities
If an amendment, supplement or waiver changes the terms of a Security,
the Trustee may require the Holder of the Security to deliver it to the Trustee.
The Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder. Alternatively, if the Company or the Trustee
so determines, the Company in exchange for the Security shall issue and the
Trustee shall authenticate a new Security that reflects the changed terms.
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Section 11.6 Trustee To Sign Amendments, Etc
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article XI if the amendment or supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, in its sole discretion,
but need not sign it. In signing or refusing to sign such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject to
Section 9.1, shall be fully protected in relying upon, an Opinion of Counsel
stating that such amendment or supplemental indenture is authorized or permitted
by this Indenture. The Company may not sign an amendment or supplemental
indenture until the Board of Directors approves it.
ARTICLE XII
REPURCHASE AT THE OPTION OF HOLDERS UPON A CHANGE OF CONTROL
Section 12.1 Change in Control Put
(a) In the event that a Change in Control shall occur, each Holder
shall have the right (a "Change in Control Repurchase Right"), at the Holder's
option, but subject to the provisions of Section 12.1(a) hereof, to require the
Company to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder's Securities not theretofore called for
redemption, or any portion of the principal amount thereof that is equal to
$1,000 or an integral multiple thereof as directed by such Holder pursuant to
Section 12.3 (provided that no single Securities may be repurchased in part
unless the portion of the principal amount of such Securities to be outstanding
after such repurchase is equal to $1,000 or an integral multiple thereof), on
the date (the "Change in Control Repurchase Date") that is a Business Day no
earlier than 30 days nor later than 60 days after the date of the Company Notice
at a purchase price in cash equal to 100% of the principal amount of the
Securities to be repurchased (the "Change in Control Repurchase Price"), plus
accrued and unpaid interest (including Contingent Interest) to, but excluding,
the Change in Control Repurchase Date; provided, however, that installments of
interest (including Contingent Interest) on Securities whose Maturity is prior
to or on the Change in Control Repurchase Date shall be payable to the Holders
of such Securities, registered as such on the relevant regular record date.
A "Change in Control" shall be deemed to have occurred if, as a result
of any transaction or series of transactions, any of the following occurs after
the date hereof:
(1) any "person" or "group" (as such terms are defined below)
is or becomes the "beneficial owner" (as defined below), directly or
indirectly, of shares of Voting Stock of the Company representing 50%
or more of the total voting power of all outstanding classes of Voting
Stock of the Company or has the power, directly or indirectly, to elect
a majority of the members of the Board of Directors of the Company; or
(2) the Company consolidates with, or merges with or into,
another Person or the Company sells, assigns, conveys, transfers,
leases or otherwise disposes of all or substantially all of the assets
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of the Company, or any Person consolidates with, or merges with or
into, the Company, in any such event other than pursuant to a
transaction in which the Persons that "beneficially owned" (as defined
below), directly or indirectly, shares of Voting Stock of the Company
immediately prior to such transaction "beneficially own" (as defined
below), directly or indirectly, shares of Voting Stock of the Company
representing at least a majority of the total voting power of all
outstanding classes of Voting Stock of the surviving or transferee
Person; or
(3) there shall occur the liquidation or dissolution of the
Company.
For the purpose of the definition of "Change in Control", (i) "person"
and "group" have the meanings given such terms under Section 13(d) and 14(d) of
the Exchange Act or any successor provision to either of the foregoing, and the
term "group" includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act (or any successor provision thereto), (ii) a "beneficial owner"
shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in
effect on the date of this Indenture, except that the number of shares of Voting
Stock of the Company shall be deemed to include, in addition to all outstanding
shares of Voting Stock of the Company and Unissued Shares deemed to be held by
the "person" or "group" (as such terms are defined above) or other Person with
respect to which the Change in Control determination is being made, all Unissued
Shares deemed to be held by all other Persons, and (iii) the terms "beneficially
owned" and "beneficially own" shall have meanings correlative to that of
"beneficial owner". The term "Unissued Shares" means shares of Voting Stock not
outstanding that are subject to options, warrants, rights to purchase or
conversion privileges exercisable within 60 days of the date of determination of
a Change in Control.
Notwithstanding anything to the contrary set forth in this Section
12.1, a Change in Control will not be deemed to have occurred if the closing
price (determined in accordance with Section 4.6(d) of this Indenture) of the
Common Stock for any five Trading Days within:
(i) the period of the ten Trading Days 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 resulting solely from a Change in Control under
Section 12.1(a)(1); or
(ii) the period of the ten Trading Days immediately
preceding the Change in Control, in the case of a Change in
Control resulting from a Change in Control under Section
12.1(a)(2) or (3),
is at least equal to 105% of the Conversion Price in effect on such Trading Day.
(b) Within 10 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of the Change in Control to the
Trustee (and the Paying Agent if the Trustee is not then acting as Paying Agent)
and to each Holder (and to beneficial owners as required by applicable law). The
notice shall include the form of a Change in Control Repurchase Notice to be
completed by the Holder and shall state:
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(1) the date of such Change in Control and, briefly, the
events causing such Change in Control;
(2) the date by which the Change in Control Repurchase Notice
pursuant to this Section 12.1 must be given;
(3) the Change in Control Repurchase Date;
(4) the Change in Control Repurchase Price;
(5) briefly, the conversion rights of the Securities;
(6) the name and address of each Paying Agent and Conversion
Agent;
(7) the Conversion Price and any adjustments thereto;
(8) that Securities as to which a Change in Control Repurchase
Notice has been given may be converted into Common Stock pursuant to
Article IV of this Indenture only to the extent that the Change in
Control Repurchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(9) the procedures that the Holder must follow to exercise
rights under this Section 12.1;
(10) the procedures for withdrawing a Change in Control
Repurchase Notice, including a form of notice of withdrawal; and
(11) that the Holder must satisfy the requirements set forth
in the Securities in order to convert the Securities.
If any of the Securities is in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to the repurchase of Global Securities.
A Holder may exercise its rights specified in subsection (a) of this
Section 12.1 upon delivery of a written notice (which shall be in substantially
the form included in Exhibit A hereto and which may be delivered by letter,
overnight courier, hand delivery, facsimile transmission or in any other written
form and, in the case of Global Securities, may be delivered electronically or
by other means in accordance with the Depositary's customary procedures) of the
exercise of such rights (a "Change in Control Repurchase Notice") to any Paying
Agent at any time prior to the close of business on the Business Day next
preceding the Change in Control Repurchase Date.
The delivery of such Security to any Paying Agent (together with all
necessary endorsements) at the office of such Paying Agent shall be a condition
to the receipt by the Holder of the Change in Control Repurchase Price therefor.
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The Company shall purchase from the Holder thereof, pursuant to this
Section 12.1, a portion of a Security if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of the Indenture that apply
to the purchase of all of a Security pursuant to Sections 12.1 through 12.6 also
apply to the purchase of such portion of such Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to a Paying Agent the Change in Control Repurchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Change in Control
Repurchase Notice in whole or in a portion thereof that is a principal amount of
$1,000 or in an integral multiple thereof at any time prior to the close of
business on the Business Day next preceding the Change in Control Repurchase
Date by delivery of a written notice of withdrawal to the Paying Agent in
accordance with Section 12.2.
A Paying Agent shall promptly notify the Company of the receipt by it
of any Change in Control Repurchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, any Change in Control Repurchase Notice may be delivered or
withdrawn and such Securities may be surrendered or delivered for purchase in
accordance with the Applicable Procedures as in effect from time to time.
Section 12.2 Effect of Change in Control Repurchase Notice
Upon receipt by any Paying Agent of the Change in Control Repurchase
Notice specified in Section 12.1(c), the Holder of the Security in respect of
which such Change in Control Repurchase Notice was given shall (unless such
Change in Control Repurchase Notice is withdrawn as specified below) thereafter
be entitled to receive the Change in Control Repurchase Price with respect to
such Security. Such Change in Control Repurchase Price shall be paid to such
Holder promptly following the later of (a) the Change in Control Repurchase Date
with respect to such Security (provided the conditions in Section 12.1(c) have
been satisfied) and (b) the time of delivery of such Security to a Paying Agent
by the Holder thereof in the manner required by Section 12.1(c). Securities in
respect of which a Change in Control Repurchase Notice has been given by the
Holder thereof may not be converted into shares of Common Stock on or after the
date of the delivery of such Change in Control Repurchase Notice unless such
Change in Control Repurchase Notice has first been validly withdrawn.
A Change in Control Repurchase Notice may be withdrawn by means of a
written notice (which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Depositary's customary procedures) of withdrawal delivered
by the Holder to a Paying Agent at any time prior to the close of business on
the Business Day immediately preceding the Change in Control Repurchase Date,
specifying the principal amount of the Security or portion thereof (which must
be a principal amount of $1,000 or an integral multiple of $1,000 in excess
thereof) with respect to which such notice of withdrawal is being submitted.
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Section 12.3 Deposit of Change in Control Repurchase Price
On or before 11:00 a.m., New York City time, on the Change in Control
Repurchase Date, the Company shall deposit with the Trustee or with a Paying
Agent (other than the Company or an Affiliate of the Company) an amount of money
(in immediately available funds if deposited on such Business Day) sufficient to
pay the aggregate Change in Control Repurchase Price of all the Securities or
portions thereof that are to be purchased as of such Change in Control
Repurchase Date. The manner in which the deposit required by this Section 12.3
is made by the Company shall be at the option of the Company, provided that such
deposit shall be made in a manner such that the Trustee or a Paying Agent shall
have immediately available funds on the Change in Control Repurchase Date.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change in Control Repurchase Price of any Security for
which a Change in Control Repurchase Notice has been tendered and not withdrawn
in accordance with this Indenture then, on the Change in Control Repurchase
Date, such Security will cease to be outstanding and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Change in
Control Repurchase Price as aforesaid). The Company shall publicly announce the
principal amount of Securities purchased as a result of such Change in Control
on or as soon as practicable after the Change in Control Repurchase Date.
Section 12.4 Securities Purchased in Part
Any Security that is to be purchased only in part shall be surrendered
at the office of a Paying Agent and promptly after the Change in Control
Repurchase Date 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 such authorized denomination or denominations as may be
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
that is not purchased.
Section 12.5 Compliance with Securities Laws Upon Purchase of Securities
In connection with any offer to purchase or purchase of Securities
under Section 12.1, the Company shall (a) comply with Rule 13e-4 and Rule 14e-1
(or any successor to either such Rule), if applicable, under the Exchange Act,
(b) file the related Schedule TO (or any successor or similar schedule, form or
report) if required under the Exchange Act, and (c) otherwise comply with all
federal and state securities laws in connection with such offer to purchase or
purchase of Securities, all so as to permit the rights of the Holders and
obligations of the Company under Sections 12.1 through 12.6 to be exercised in
the time and in the manner specified therein.
Section 12.6 Repayment to the Company
To the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 12.3 exceeds the aggregate Change in Control
Repurchase Price together with interest (including Contingent Interest), if any,
thereon of the Securities or portions thereof that the Company is obligated to
purchase, then promptly after the Change in Control Repurchase Date the Trustee
or a Paying Agent, as the case may be, shall return any such excess cash to the
Company.
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ARTICLE XIII
MISCELLANEOUS
Section 13.1 Trust Indenture Act Controls
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by any of Sections 310 to 317, inclusive, of the TIA through
operation of Section 318(c) thereof, such imposed duties shall control.
Section 13.2 Notices
Any notice, request or communication shall be given in writing and
delivered in person or mailed by first-class mail, postage prepaid, addressed as
follows:
If to the Company:
St. Mary Land & Exploration Company
1776 Lincoln Street, Suite 1100
Denver, Colorado 80203
Attention: Richard Norris
Telephone: (303) 863-4334
Facsimile: (303) 861-0934
If to the Trustee:
Wells Fargo Bank West, N.A.
1740 Broadway, MAC: C7301-024
Denver, Colorado 80274
Attention: Gretchen L. Middents
Telephone: (303) 863-6450
Facsimile: (303) 863-5645
Such notices or communications shall be effective when received.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be mailed
by first-class mail to it at its address shown on the Register kept by the
Primary Registrar.
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 to a Securityholder is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.
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Section 13.3 Communications 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 and any other person shall
have the protection of TIA Section 312(c).
Section 13.4 Certificate and Opinion as to Conditions Precedent
(a) 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
at the request of the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent (including any covenants,
compliance with which constitutes a condition 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 (including any covenants,
compliance with which constitutes a condition precedent) have been
complied with.
(b) Each Officers' Certificate and Opinion of Counsel with respect to
compliance with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or
opinion 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 certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she
has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; provided,
however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
Section 13.5 Record Date for Vote or Consent of Securityholders
The Company (or, in the event deposits have been made pursuant to
Section 10.1, the Trustee) may set a record date for purposes of determining the
identity of Holders entitled to vote or consent to any action by vote or consent
authorized or permitted under this Indenture, which record date shall not be
more than thirty (30) days prior to the date of the commencement of solicitation
of such action. Notwithstanding the provisions of Section 11.4, if a record date
is fixed, those persons who were Holders of Securities at the close of business
on such record date (or their duly designated proxies), and only those persons,
shall be entitled to take such action by vote or consent or to revoke any vote
or consent previously given, whether or not such persons continue to be Holders
after such record date.
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Section 13.6 Rules By Trustee, Paying Agent, Registrar and Conversion Agent
The Trustee may make reasonable rules (not inconsistent with the terms
of this Indenture) for action by or at a meeting of Holders. Any Registrar,
Paying Agent or Conversion Agent may make reasonable rules for its functions.
Section 13.7 Legal Holidays
A "Legal Holiday" is a Saturday, Sunday or a day on which state or
federally chartered banking institutions in New York, New York and the state in
which the Corporate Trust Office is located are not required to be open. If a
payment date is a Legal Holiday, payment shall be made on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a Regular Record Date is a Legal Holiday, the Record Date
shall not be affected.
Section 13.8 Governing Law
This Indenture and the Securities shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
Section 13.9 No Adverse Interpretation of Other Agreements
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 13.10 No Recourse Against Others
All liability described in paragraph 18 of the Securities of any
director, officer, employee or shareholder, as such, of the Company is waived
and released.
Section 13.11 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 13.12 Multiple Counterparts
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
Section 13.13 Separability
In case any provisions 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.
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Section 13.14 Table of Contents, Headings, Etc.
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as
of the date and year first above written.
ST. MARY LAND & EXPLORATION COMPANY
By: /s/ RICHARD C. NORRIS
-----------------------------------------
Name: Richard C. Norris
Title:Vice President - Finance
WELLS FARGO BANK WEST, N.A., as Trustee
By: /s/ GRETCHEN L. MIDDENTS
-----------------------------------------
Name: Gretchen L. Middents
Title:Vice President
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EXHIBIT A
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF 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. THIS SECURITY
IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.]1
[THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933 (THE "SECURITIES ACT"), AND THIS SECURITY AND THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION THEREOF MAY NOT BE OFFERED, 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 THE COMPANY THAT
(A) THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN
THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
- -----------------------------------------------------------
1 This paragraph should be included only if the Security is a Global Security.
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SECURITIES ACT PROVIDED BY RULE 144 (IF AVAILABLE), (IV) IN THE UNITED STATES TO
AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE REGISTRATION OF TRANSFER OF SUCH NOTES AND AN OPINION
OF COUNSEL ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.]
[THE HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS OF A
REGISTRATION RIGHTS AGREEMENT (AS SUCH TERM IS DEFINED IN THE INDENTURE REFERRED
TO ON THE REVERSE HEREOF) AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY
AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.]2
- -----------------------------------------------------------
2 These paragraphs to be included only if the Security is a Transfer Restricted
Security.
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ST. MARY LAND & EXPLORATION COMPANY
CUSIP: 792 228 AA6 R-____________
5.75% SENIOR CONVERTIBLE NOTES DUE 2021
St. Mary Land & Exploration Company, a Delaware corporation (the
"Company", which term shall include any successor corporation under the
Indenture referred to on the reverse hereof), promises to pay to
__________________________, or registered assigns, the principal sum of
_____________________________ Dollars ($__________) on March 15, 2022 [or such
greater or lesser amount as is indicated on the Schedule of Exchanges of
Securities on the other side of this Security].3
Interest Payment Dates: March 15 and September 15
Regular Record Dates: March 1 and September 1
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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
ST. MARY LAND & EXPLORATION COMPANY
By:
------------------------------------------
Name:
Attest: Title:
By:
-------------------------------------------
Name:
Title:
Dated:
------------------------------------------
Trustee's Certificate of Authentication: This is one of the Securities referred
to in the within-mentioned Indenture.
WELLS FARGO BANK WEST, N.A., as Trustee
Authorized Signatory
By:
-------------------------------------------
- -----------------------------------------------------------
3 This phrase should be included only if the Security is Global Security.
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[FORM OF REVERSE SIDE OF SECURITY]
ST. MARY LAND & EXPLORATION COMPANY
5.75% SENIOR CONVERTIBLE NOTES DUE 2022
1. Interest (Including Contingent Interest)
St. Mary Land & Exploration Company, a Delaware corporation (the
"Company", which term shall include any successor corporation under the
Indenture hereinafter referred to), promises to pay interest on the principal
amount of this Security at the rate of 5.75% per annum. In addition, the Company
will pay contingent interest ("Contingent Interest"), subject to the accrual and
record date provisions described above, to the holders of Securities during any
six-month period from March 15 to September 14 and from September 15 to March
14, as appropriate, commencing with the six-month period beginning September 15,
2002, if the average Trading Price of Securities for the five Trading Days
ending on the second Trading Day immediately preceding the beginning of the
relevant six-month period equals 120% or more of the principal amount of
Securities. Contingent Interest will accrue on this Security under the
conditions specified in the Indenture and in this Note at a rate per annum equal
to the greater of (i) cash dividends, if any, paid by the Company per share of
its common stock, par value $.01 per share, during such period multiplied by the
then applicable Conversion Rate (as defined in the Indenture referred to below)
and divided by $1,000 and (ii) a per annum rate equal to 5.00% of the Company's
estimated per annum borrowing rate for senior non-convertible fixed rate
Indebtedness with a Maturity comparable to this Security, but in no event may
the rate of Contingent Interest exceed a per annum rate of 0.50%. The Company
shall pay interest semiannually on March 15 and September 15 of each year,
commencing September 15, 2002. The Company shall make all determinations related
to the payment of Contingent Interest and shall file with the Trustee an
Officers' Certificate setting forth the calculations relevant to such
determinations. Interest (including Contingent Interest) on the Securities shall
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from March 13, 2002; provided, however, that if there is
not an existing default in the payment of interest (including Contingent
Interest) and if this Security is authenticated between a Regular Record Date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such Interest Payment Date. Interest (including
Contingent Interest) will be computed on the basis of a 360-day year of twelve
30-day months. Any reference herein to interest accrued or payable as of any
date shall include any Liquidated Damages accrued or payable on such date as
provided in the Registration Rights Agreement.
If any Security is surrendered for conversion subsequent to the Regular
Record Date preceding an Interest Payment Date but on or prior to such Interest
Payment Date (except Security called for redemption on a Redemption Date between
such Regular Record Date and Interest Payment Date), the Holder of such Security
at the close of business on such Regular Record Date shall be entitled to
receive the interest (including Contingent Interest) payable on such Security on
such Interest Payment Date notwithstanding the conversion thereof. Any Security
surrendered for conversion during the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date shall (except in the case of Securities
which have been called for redemption on a Redemption Date within such period)
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be accompanied by payment in New York Clearing House funds or other funds of an
amount equal to the interest (including Contingent Interest) payable on such
Interest Payment Date on the Security being surrendered for conversion. Except
as provided in this Security or in the Indenture, no adjustments in respect of
payments of interest (including for conversion on any dividend or distributions
or interest (including Contingent Interest)) on any Security surrendered for
conversion on any dividend or distributions or interest (including Contingent
Interest) on the Common Stock issued upon conversion shall be made upon the
conversion of any Security.
All percentages resulting from any calculation with respect to this
Security will be rounded, if necessary, to the nearest one hundred-thousandth of
a percentage point (with five one-millionths of a percentage point being rounded
upward) and all dollar amounts used in or resulting from any such calculation
with respect to this Security will be rounded to the nearest cent (with one-half
cent being rounded upward.)
2. Method of Payment
The Company shall pay interest on this Security (except defaulted
interest) to the person who is the Holder of this Security at the close of
business on March 1 or September 1, as the case may be, next preceding the
related Interest Payment Date. The Holder must surrender this Security to a
Paying Agent to collect payment of principal. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may, however, pay
principal and interest in respect of any Certificated Security by check or wire
payable in such money; provided, however, that a Holder with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder. The Company may mail
an interest check to the Holder's registered address. Notwithstanding the
foregoing, so long as this Security is registered in the name of a Depositary or
its nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
3. Paying Agent, Registrar And Conversion Agent
Initially, Wells Fargo Bank West, N.A. (the "Trustee," which term shall
include any successor trustee under the Indenture hereinafter referred to) will
act as Paying Agent, Registrar and Conversion Agent. The Company may change any
Paying Agent, Registrar or Conversion Agent without notice to the Holder. The
Company or any of its Subsidiaries may, subject to certain limitations set forth
in the Indenture, act as Paying Agent or Registrar.
4. Indenture, Limitations
This Security is one of a duly authorized issue of Securities of the
Company designated as its 5.75% Senior Convertible Notes due 2022 (the
"Securities"), issued under an Indenture dated as of March 13, 2002 (together
with any supplemental indentures thereto, the "Indenture"), between the Company
and the Trustee. The terms of this Security include those stated in the
Indenture and those required by or made part of the Indenture by reference to
the Trust Indenture Act of 1939, as amended, as in effect on the date of the
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Indenture. This Security is subject to all such terms, and the Holder of this
Security is referred to the Indenture and said Act for a statement of them.
The Securities are senior unsecured obligations of the Company limited
to $75,000,000 aggregate principal amount, subject to Section 2.2 of the
Indenture. The Indenture does not limit other debt of the Company, secured or
unsecured.
5. Optional Redemption
The Securities are subject to redemption, at any time on or after March
20, 2007, on at least 20 days and no more than 60 days notice, in whole or in
part, at the election of the Company, at a Redemption Price equal to 100% of the
principal amount thereof, together with accrued interest (including Contingent
Interest) up to but not including the Redemption Date; provided that if the
redemption date is an Interest Payment Date, interest will be payable to the
Holders in whose names the Securities are registered at the close of business on
the relevant record dates.
6. Notice of Redemption
Notice of redemption will be mailed by first-class mail at least 20
days but not more than 60 days before the Redemption Date to each Holder of
Securities to be redeemed at its registered address. Securities in denominations
larger than $1,000 may be redeemed in part, but only in whole multiples of
$1,000. On and after the Redemption Date, subject to the deposit with the Paying
Agent of funds sufficient to pay the Redemption Price plus accrued interest, if
any, accrued to, but excluding, the Redemption Date, interest shall cease to
accrue on Securities or portions of them called for redemption.
7. Repurchase of Securities by the Company at Option of Holder
(a) Subject to the terms and conditions of the Indenture and at the
option of the Holder, on March 20, 2007, on March 15, 2012 and March 15, 2017,
the Company shall become obligated to purchase all of such Holder's Securities,
or any portion of the principal amount thereof that is equal to any integral
multiple of $1,000, at a Repurchase Price equal to 100% of the principal amount
of the Securities to be repurchased, plus accrued and unpaid interest (including
Contingent Interest) to, but excluding, March 20, 2007, March 15, 2012 and March
15, 2017, as the case may be. On March 20, 2007, the Repurchase Price may be
paid, at the option of the Company, in cash or by the issuance of shares of
Common Stock, or in any combination thereof, in accordance with the Indenture.
On March 15, 2012 and March 15, 2017, the Repurchase Price must be paid in cash
only.
(b) In addition, subject to the terms and conditions of the Indenture
and at the option of the Holder, following the occurrence of a Change in
Control, the Company shall become obligated to purchase all of such Holder's
Securities, or any portion of the principal amount thereof that is equal to any
integral multiple of $1,000, on the date that is 45 days after the date of the
Company Notice given in connection with such Change in Control at a repurchase
price equal to 100% of the principal amount of the Securities to be repurchased,
plus accrued and unpaid interest (including Contingent Interest) to, but
excluding, the Change in Control Repurchase Date.
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8. Conversion
Subject to compliance with the provisions of the Indenture, a Holder of
a Security may convert the principal amount of such Security (or any portion
thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof)
into shares of Common Stock at the Conversion Price in effect at the time of
conversion under certain circumstances described in the Indenture; provided,
however, that if the Security is called for redemption or subject to repurchase
upon a specific date pursuant to Article V of the Indenture or upon a Change in
Control, the conversion right will terminate at the close of business on the
Business Day immediately preceding the redemption date or the Change in Control
Repurchase Date, as the case may be, for such Security or such earlier date as
the Holder presents such Security for redemption or purchase (unless the Company
shall default in making the redemption payment, Optional Repurchase Price or
Change in Control Repurchase Price, as the case may be, when due, in which case
the conversion right shall terminate at the close of business on the date such
default is cured and such Security is redeemed or purchased).
The Company will notify Holders of any event triggering the right to
convert the Security as specified above in accordance with the Indenture.
A Security in respect of which a Holder has delivered an Optional
Repurchase Notice or a Change in Control Repurchase Notice exercising the option
of such Holder to require the Company to repurchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with the
terms of the Indenture.
The initial Conversion Price is $26.00 per share, subject to adjustment
under certain circumstances. The number of shares of Common Stock issuable upon
conversion of a Security is determined by dividing the principal amount of the
Security or portion thereof converted by the Conversion Price in effect on the
Conversion Date. No fractional shares will be issued upon conversion; in lieu
thereof, an amount will be paid in cash based upon the closing price (as defined
in the Indenture) of the Common Stock on the Trading Day immediately prior to
the Conversion Date.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice set forth below and deliver such notice to a Conversion Agent,
(b) surrender the Security to a Conversion Agent, (c) furnish appropriate
endorsements and transfer documents if required by a Registrar or a Conversion
Agent, and (d) pay any transfer or similar tax, if required. Securities so
surrendered for conversion (in whole or in part) during the period from the
close of business on any Regular Record Date to the opening of business on the
next succeeding Interest Payment Date (excluding Securities or portions thereof
called for redemption or subject to repurchase upon a specific date pursuant to
Article V of the Indenture or upon a Change in Control on a Redemption Date,
Optional Repurchase Date or Change in Control Repurchase Date, as the case may
be, during the period beginning at the close of business on a Regular Record
Date and ending at the opening of business on the first Business Day after the
next succeeding Interest Payment Date, or if such Interest Payment Date is not a
Business Day, the second such Business Day) shall also be accompanied by payment
in funds acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of such Security then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Security, subject to the provisions of
this Indenture relating to the payment of defaulted interest by the Company. If
the Company defaults in the payment of interest (including Contingent Interest)
payable on such Interest Payment Date, the Company shall promptly repay such
funds to such Holder. A Holder may convert a portion of a Security equal to
$1,000 or any integral multiple thereof.
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9. Conversion Arrangement on Call for Redemption
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Business Day immediately preceding the
Redemption Date, may be deemed to be purchased from the Holders of such
Securities at an amount not less than the Redemption Price, together with
accrued interest, if any, to, but not including, the Redemption Date, 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 Common Stock of
the Company and to make payment for such Securities to the Paying Agent in trust
for such Holders.
10. Tax Treatment
The Company agrees, and by acceptance of a beneficial ownership
interest in the Securities each beneficial holder of Securities will be deemed
to have agreed, for United States federal income tax purposes (1) to treat the
Securities as indebtedness that is subject to Treas. Reg. Sec. 1.1275-4 (the
"Contingent Payment Regulations") and, for purposes of the Contingent Payment
Regulations, to treat the fair market value of any stock beneficially received
by a beneficial holder upon any conversion of the Securities as a contingent
payment and (2) to be bound by the Company's determination of the "comparable
yield" and "projected payment schedule," within the meaning of the Contingent
Payment Regulations, with respect to the Securities. A Holder of Securities may
obtain the amount of the original issue discount, issue date, yield to maturity,
comparable yield and projected payment by submitting a written request for it to
the Company at the following address: St. Mary Land & Exploration Company,
176 Lincoln Street, Suite 1100, Denver, Colorado 80203, Attention: Chief
Financial Officer.
11. Denominations, Transfer, Exchange
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. A Holder may register the transfer
of 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 or other governmental charges that may
be imposed in relation thereto by law or permitted by the Indenture.
12. Persons Deemed Owners
The Holder of a Security may be treated as the owner of it for all purposes.
13. Unclaimed Money
If money for the payment of principal or interest (including Contingent
Interest) remains unclaimed for two years, the Trustee or Paying Agent will pay
the money back to the Company at its written request. After that, Holders
entitled to money must look to the Company for payment.
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14. Amendment, Supplement and Waiver
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Securities then outstanding, and an existing default
or Event of Default and its consequence or compliance with any provision of the
Indenture or the Securities may be waived in a particular instance with the
consent of the Holders of a majority in principal amount of the Securities then
outstanding. Without the consent of or notice to any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Securities to, among other
things, cure any ambiguity, defect or inconsistency or make any other change
that does not adversely affect the rights of any Holder.
15. Successor Corporation
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture in accordance with the terms
and conditions of the Indenture, the predecessor corporation will (except in
certain circumstances specified in the Indenture) be released from those
obligations.
16. Defaults and Remedies
Under the Indenture, an Event of Default includes: 1. default for 30
days in payment of any interest (including Contingent Interest) on any
Securities; 1. default in payment of any principal (including, without
limitation, any premium, if any) on the Securities when due; 1. failure by the
Company for 60 days after notice to it to comply with any of its other
agreements contained in the Indenture or the Securities; 1. a default which
involves the failure to pay principal of or any premium or interest on
Indebtedness of the Company and its Subsidiaries, or which results in the
acceleration of such Indebtedness prior to its stated maturity, if such
Indebtedness aggregates $10 million or more; 1. failure by the Company or any of
its Subsidiaries to pay final judgments aggregating in excess of $10 million,
which judgments are not paid, discharged or stayed for a period of 60 days; 1.
certain events of bankruptcy, insolvency or reorganization of the Company. If an
Event of Default (other than as a result of certain events of bankruptcy,
insolvency or reorganization of the Company or any of its Subsidiaries) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the Securities then outstanding may declare all unpaid principal to
the date of acceleration on the Securities then outstanding to be due and
payable immediately, all as and to the extent provided in the Indenture. If an
Event of Default occurs as a result of certain events of bankruptcy, insolvency
or reorganization of the Company, unpaid principal of the Securities then
outstanding shall become due and payable immediately without any declaration or
other act on the part of the Trustee or any Holder, all as and to the extent
provided in the Indenture. Holders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may require
indemnity satisfactory to it before it enforces the Indenture or the Securities.
Subject to certain limitations, Holders of a majority in principal amount of the
Securities then outstanding may direct the Trustee in its exercise of any trust
or power. The Trustee may withhold from Holders notice of any continuing default
(except a default in payment of principal or interest (including Contingent
Interest)) if it determines that withholding notice is in their interests. The
Company is required to file periodic reports with the Trustee as to the absence
of default.
A-9
17. Trustee Dealings with the Company
Wells Fargo Bank West, N.A., the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from and
perform services for the Company or an Affiliate of the Company, and may
otherwise deal with the Company or an Affiliate of the Company, as if it were
not the Trustee.
18. 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 nor for any claim based on, in respect of or by
reason of such obligations or their creation. The Holder of this Security by
accepting this Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of this Security.
19. Authentication
This Security shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of this
Security.
20. Abbreviations and Definitions
Customary abbreviations may be used in the name of the Holder 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 UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Security but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
21. Indenture to Control; Governing Law
In the case of any conflict between the provisions of this Security and
the Indenture, the provisions of the Indenture shall control. This Security
shall be governed by, and construed in accordance with, the laws of the State of
New York, without regard to principles of conflicts of law.
The Company will furnish to any Holder, upon written request and
without charge, a copy of the Indenture. Requests may be made to: St. Mary Land
& Exploration Company, 1776 Lincoln Street, Suite 1100, Denver, Colorado
80203, Attention: Chief Financial Officer.
A-10
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
--------------------------------------------------------
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date:
---------------------------- -------------------------------------------
(Sign exactly as your name appears on the
other side of this Security)
*Signature guaranteed by:
By:
----------------------------
- -----------------------------------------------------------
* The signature must be guarnteed by an institution which is a member of one of
the following recognized signature guaranty programs:(i) the Securities Transfer
Agent Medallion Program (STAMP);(ii) the New York stock Exchange Medallion
Program (MSP);(iii) the Stock Exchange Medallion Program (SEMP;or (iv) such
other guaranty program acceptable to the Trustee.
A-11
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the
box: |_|
To convert only part of this Security, state the principal amount to be
converted (must be $1,000 or a multiple of $1,000): $____________.
If you want the stock certificate made out in another person's name,
fill in the form below:
- --------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Your Signature:
Date:
----------------------------- ----------------------------------------
(Sign exactly as your name appears on
the other side of this Security)
*Signature guaranteed by:
By:
-----------------------------
- -----------------------------------------------------------
* The signature must be guarnteed by an institution which is a member of one of
the following recognized signature guaranty programs:(i) the Securities Transfer
Agent Medallion Program (STAMP);(ii) the New York stock Exchange Medallion
Program (MSP);(iii) the Stock Exchange Medallion Program (SEMP;or (iv) such
other guaranty program acceptable to the Trustee.
A-12
OPTION TO ELECT REPURCHASE UPON A CHANGE IN CONTROL OR ON SPECIFIC DATES
To: St. Mary Land & Exploration Company
To elect to have this Security purchased by the Company pursuant to
Article V (Repurchase at Option of Holder on Specific Dates) or Article XII
(Repurchase at Option of Holder Upon a Change in Control) of the Indenture,
check the applicable box:
|_| Article V (Repurchase at Option of Holder on Specific Dates)
|_| Article XII (Repurchase at Option of Holder Upon a Change in
Control)
Date:
---------------------------- --------------------------------------------
--------------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
--------------------------------------------
Signature Guaranty
Principal amount to be redeemed
( in an integral multiple of
$1,000, if less than all):
- ----------------------------------
Notice: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
A-13
SCHEDULE OF EXCHANGES OF NOTES4
The following exchanges, redemptions, repurchases or conversions of a
part of this global Security have been made:
Principal Amount of this
Global Security Following Amount of Decrease in Amount of Increase in
Such Decrease Date of Authorized Signatory of Principal Amount of this Principal Amount of this
Exchange (or Increase) Securities Custodian Global Security Global Security
- -------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------
4 This schedule should be included only if the Security is Global Security.
A-14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF TRANSFER RESTRICTED SECURITIES5
Re: 5.75% Senior Convertible Notes due 2022 (the "Securities") of St. Mary
Land & Exploration Company
This certificate relates to $_______ principal amount of Securities
owned in (check applicable box)
|_| book-entry or |_| definitive form by ____________________ (the
"Transferor").
The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Securities as provided in Section 2.6 of the
Indenture dated as of March 13, 2002 between St. Mary Land & Exploration
Company and Wells Fargo Bank West, N.A. (the "Indenture"), and the transfer of
such Security is being made pursuant to an effective registration statement
under the Securities Act of 1933, as amended (the "Securities Act") (check
applicable box) or the transfer or exchange, as the case may be, of such
Security does not require registration under the Securities Act because (check
applicable box):
|_| Such Security is being transferred pursuant to an effective
registration statement under the Securities Act.
|_| Such Security is being acquired for the Transferor's own account,
without transfer.
|_| Such Security is being transferred to the Company or a Subsidiary
(as defined in the Indenture) of the Company.
|_| Such Security is being transferred to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined in Rule
144A or any successor provision thereto ("Rule 144A") under the Securities Act)
that is purchasing for its own account or for the account of a "qualified
institutional buyer", in each case to whom notice has been given that the
transfer is being made in reliance on such Rule 144A, and in each case in
reliance on Rule 144A.
|_| Such Security is being transferred outside the United States in an
offshore transaction in accordance with Rule 904 under the Securities Act.
|_| Such Security is being transferred in the United States to an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the Securities Act) that, prior to such transfer, will
furnish to the Trustee a signed letter containing certain representations and
agreements relating to the transfer of such Securities and an opinion of counsel
acceptable to the Company that such transfer is in compliance with the
Securities Act.
- -----------------------------------------------------------
5 This certificate should only be included if this Security is a Transfer
Restricted Security.
A-15
|_| Such Security is being transferred pursuant to and in compliance
with an exemption from the registration requirements under the Securities Act in
accordance with Rule 144 (or any successor thereto) ("Rule 144") under the
Securities Act.
|_| Such Security is being transferred pursuant to and in compliance
with an exemption from the registration requirements of the Securities Act
(other than an exemption referred to above) and as a result of which such
Security will, upon such transfer, cease to be a "restricted security" within
the meaning of Rule 144 under the Securities Act.
The Transferor acknowledges and agrees that, if the transferee will
hold any such Securities in the form of beneficial interests in a global
Security which is a "restricted security" within the meaning of Rule 144 under
the Securities Act, then such transfer can only be made pursuant to Rule 144A
under the Securities Act and such transferee must be a "qualified institutional
buyer" (as defined in Rule 144A).
Date:
---------------------------- ---------------------------------------------
(Insert Name of Transferor)