EXHIBIT INDEX
Exhibit Number Description
-------------- -----------
4.1 Indenture dated as of June 1, 1999 between the Company and The Bank of
New York, as trustee.
4.2 Form of Note (included in Exhibit 4.1).
4.3 Registration Rights Agreement dated as of June 1, 1999 between the
Company and Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co.,
and Salomon Smith Barney Inc.
5 Opinion of Nicholas J. Camera, Esq.
12 Statement of Ratio of Earnings to Fixed Charges.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Nicholas J. Camera, Esq. (included in Exhibit 5).
24 Power of Attorney (included in Part II of this Registration
Statement).
25 Statement regarding Eligibility of Trustee on Form T-1.
Exhibit 4.1
THE INTERPUBLIC GROUP OF COMPANIES, INC.
and
THE BANK OF NEW YORK
Trustee
--------------
INDENTURE
Dated as of June 1, 1999
--------------
1.87% Convertible Subordinated Notes
due 2006
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TABLE OF CONTENTS
Page
----
PARTIES........................................................................1
RECITALS.......................................................................1
Purpose of Indenture.........................................................1
Form of Face of Note........................................................1
Form of Trustee's Certificate of Authentication..............................5
Form of Reverse of Note......................................................6
Form of Conversion Notice...................................................12
Form of Assignment..........................................................14
Form of Option to Elect Redemption Upon a Fundamental Change................16
Compliance with Legal Requirement...........................................18
ARTICLE I
DEFINITIONS
Section 1.01. Definitions........................................18
Affiliate.................................................18
Board of Directors........................................19
Business Day..............................................19
Commission................................................19
Common Stock..............................................19
Company...................................................19
Conversion Rate...........................................19
Depositary................................................20
Event of Default..........................................20
Fundamental Change........................................20
Fundamental Change Redemption Date........................20
Fundamental Change Redemption Price.......................20
Indenture.................................................20
Institutional Accredited Investor.........................20
Issue Price...............................................20
Nasdaq National Market....................................20
Non-U.S. Person...........................................20
Note or Notes.............................................21
Noteholder................................................21
Notes Payment.............................................21
Officers' Certificate.....................................21
Opinion of Counsel........................................21
Original Issue Discount...................................21
Outstanding...............................................21
Person .................................................22
PORTAL Market.............................................22
Predecessor Note..........................................22
Principal Office of the Trustee...........................22
Proceeding................................................22
QIB .................................................22
Redemption Price..........................................23
Regulation S..............................................23
Responsible Officer.......................................23
Rule 144A.................................................23
Senior Debt...............................................23
Trigger Event.............................................24
Trustee .................................................24
Trust Indenture Act of 1939...............................24
U.S. Government Obligations...............................24
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01. Designation, Amount and Issue of Notes.........................24
Section 2.02. Form of Notes..................................................25
Section 2.03. Date and Denomination of Notes; Payments of Interest...........25
Section 2.04. Execution of Notes.............................................27
Section 2.05. Exchange and Registration of Transfer of Notes;
Restrictions on Transfers; Depositary..........................28
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes.....................38
Section 2.07. Temporary Notes................................................39
Section 2.08. Cancellation of Notes Paid, Etc................................40
Section 2.09. CUSIP Numbers..................................................40
ARTICLE III
REDEMPTION OF NOTES
Section 3.01. Redemption Prices..............................................41
Section 3.02. Notice of Redemption; Selection of Notes.......................41
Section 3.03. Payment of Notes Called for Redemption.........................42
Section 3.04. No Sinking Fund................................................43
Section 3.05. Conversion Arrangement on Call for Redemption..................43
ARTICLE IV
SUBORDINATION
Section 4.01. Securities Subordinated to Senior Debt.........................44
Section 4.02. Payment over of Proceeds upon Dissolution, Etc.................44
Section 4.03. No Payment When Senior Debt in Default.........................46
Section 4.04. Payment Permitted If No Default................................46
Section 4.05. Subrogation to Rights of Holders of Senior Debt................47
Section 4.06. Provisions Solely to Define Relative Rights....................47
Section 4.07. Trustee to Effectuate Subordination............................47
Section 4.08. No Waiver of Subordination Provisions..........................48
Section 4.09. Notice to Trustee..............................................48
Section 4.10. Reliance on Judicial Order or Certificate of Liquidating Agent.49
Section 4.11. Trustee Not Fiduciary for Holders of Senior Debt...............49
Section 4.12. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights...............................50
Section 4.13. Article Applicable to Paying Agents............................50
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal, Premium and Interest.....................50
Section 5.02. Offices for Notices and Payments, Etc..........................51
Section 5.03. Appointments to Fill Vacancies in Trustee's Office.............51
Section 5.04. Provision as to Paying Agent...................................51
Section 5.05. Reports by the Company.........................................52
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 6.01. Noteholders' Lists.............................................53
Section 6.02. Preservation of Lists..........................................53
Section 6.03. Reports by the Trustee.........................................53
Section 6.04. Statement as to Compliance.....................................54
Section 6.05. Statement by Officers as to Default............................54
Section 6.06. Calculation of Original Issue Discount.........................54
ARTICLE VII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS IN THE EVENT OF DEFAULT
Section 7.01. Events of Default..............................................54
Section 7.02. Payment of Notes on Default; Suit Therefor.....................57
Section 7.03. Application of Monies Collected by Trustee.....................59
Section 7.04. Proceedings by Noteholder......................................60
Section 7.05. Proceedings by Trustee.........................................61
Section 7.06. Remedies Cumulative and Continuing.............................61
Section 7.07. Direction of Proceedings and Waiver of Defaults by
Majority Noteholders...........................................62
Section 7.08. Notice of Defaults.............................................62
Section 7.09. Undertaking to Pay Costs.......................................63
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties and Responsibilities of Trustee.........................63
Section 8.02. Reliance on Documents, Opinions, Etc...........................65
Section 8.03. No Responsibility for Recitals, Etc............................67
Section 8.04. Trustee, Paying Agents, Conversion Agents or Registrar
May Own Notes..................................................67
Section 8.05. Monies to Be Held in Trust.....................................67
Section 8.06. Compensation and Expenses of Trustee...........................67
Section 8.07. Officers' Certificate as Evidence..............................68
Section 8.08. Eligibility of Trustee.........................................68
Section 8.09. Resignation or Removal of Trustee..............................68
Section 8.10. Acceptance by Successor Trustee................................70
Section 8.11. Succession by Merger, Etc......................................70
ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.01. Action by Noteholders..........................................71
Section 9.02. Proof of Execution by Noteholders..............................72
Section 9.03. Who Are Deemed Absolute Owners.................................72
Section 9.04. Company-Owned Notes Disregarded................................72
Section 9.05. Revocation of Consents; Future Holders Bound...................73
ARTICLE X
NOTEHOLDERS' MEETINGS
Section 10.01. Purposes of Meetings...........................................73
Section 10.02. Call of Meetings by Trustee....................................74
Section 10.03. Call of Meetings by Company or Noteholders.....................74
Section 10.04. Qualification for Voting.......................................74
Section 10.05. Regulations....................................................75
Section 10.06. Voting.........................................................75
Section 10.07. No Delay of Rights by Meeting..................................76
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Noteholders.........76
Section 11.02. Supplemental Indentures with Consent of Noteholders............78
Section 11.03. Effect of Supplemental Indentures..............................79
Section 11.04. Notation on Notes..............................................79
Section 11.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished to the Trustee.......................................79
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.01. Company May Consolidate, Etc., on Certain Terms................79
Section 12.02. Successor Corporation to Be Substituted........................80
Section 12.03. Opinion of Counsel to Be Given Trustee.........................81
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge of Indenture.........................................81
Section 13.02. Deposited Monies to Be Held in Trust by Trustee................82
Section 13.03. Paying Agent to Repay Monies Held..............................82
Section 13.04. Return of Unclaimed Monies.....................................82
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Notes Solely Corporate Obligations...............83
ARTICLE XV
CONVERSION OF NOTES
Section 15.01. Right to Convert...............................................83
Section 15.02. Exercise of Conversion Privilege; Issuance of Common Stock on
Conversion; No Adjustment for Interest or Dividends............84
Section 15.03. Cash Payments in Lieu of Fractional Shares.....................86
Section 15.04. Conversion Rate................................................86
Section 15.05. Adjustment of Conversion Rate..................................86
Section 15.06. Effect of Reclassification, Consolidation, Merger or Sale......94
Section 15.07. Taxes on Shares Issued.........................................95
Section 15.08. Reservation of Shares; Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock........95
Section 15.09. Responsibility of Trustee......................................96
Section 15.10. Notice to Holders Prior to Certain Actions.....................96
ARTICLE XVI
REDEMPTION OF NOTES AT OPTION OF HOLDERS
Section 16.01. Option to Elect Redemption Upon a Fundamental Change...........97
Section 16.02. Deposit of Funds for Redemption................................98
ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.01. Provisions Binding on Company's Successors.....................99
Section 17.02. Official Acts by Successor Corporation.........................99
Section 17.03. Conflict with Trust Indenture Act..............................99
Section 17.04. Addresses for Notices, Etc.....................................99
Section 17.05. Governing Law.................................................100
Section 17.06. Evidence of Compliance with Conditions Precedent;
Certificates to Trustee.......................................100
Section 17.07. Legal Holidays................................................100
Section 17.08. No Security Interest Created..................................100
Section 17.09. Benefits of Indenture.........................................100
Section 17.10. Table of Contents, Headings, Etc..............................100
Section 17.11. Execution in Counterparts.....................................100
Signatures ..................................................................102
INDENTURE dated as of June 1, 1999 between THE INTERPUBLIC GROUP OF
COMPANIES, INC., a Delaware corporation (the "Company"), and The Bank of New
York, a New York banking corporation, as trustee hereunder (the "Trustee").
W I T N E S S E T H :
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue of its 1.87% Convertible Subordinated Notes due 2006 (the "Notes"), in
an aggregate principal amount at maturity not to exceed $361,000,000 and, to
provide the terms and conditions upon which the Notes are to be authenticated,
issued and delivered, the Company has duly authorized the execution and delivery
of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne by the
Notes and a form of conversion notice are to be substantially in the following
forms, respectively:
[FORM OF LEGEND FOR GLOBAL NOTE:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC),
ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE
& CO., HAS AN INTEREST HEREIN.]
[FORM OF FACE OF NOTE]
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, THIS NOTE BEARS
ORIGINAL ISSUE DISCOUNT. THE ISSUE PRICE WITH RESPECT TO EACH $1,000
OF AGGREGATE PRINCIPAL AMOUNT AT MATURITY OF THIS NOTE IS $830.18, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF
AGGREGATE PRINCIPAL AMOUNT AT MATURITY OF THIS NOTE IS $169.82, THE
ISSUE DATE IS JUNE 1, 1999 AND THE YIELD TO MATURITY BASED ON
SEMIANNUAL COMPOUNDING IS 4.75%.
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR"
(AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER THE SECURITIES
ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"), (2) AGREES THAT IT WILL
NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF
THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE
NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF
SUCH NOTE EXCEPT (A) TO THE INTERPUBLIC GROUP OF COMPANIES, INC. OR
ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) INSIDE THE UNITED STATES TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE BANK OF NEW
YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, IF APPLICABLE), A SIGNED
LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO
THE RESTRICTIONS ON TRANSFER OF THE NOTE EVIDENCED HEREBY (THE FORM OF
WHICH LETTER CAN BE OBTAINED FROM SUCH TRUSTEE), (D) OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT,
(E) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF
SUCH TRANSFER), (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(F) ABOVE), IT WILL FURNISH TO THE BANK OF NEW
YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (4) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. IN
CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE NOTE
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER
AND SUBMIT THIS CERTIFICATE TO THE BANK OF NEW YORK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, IF APPLICABLE). IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S.
PERSON, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK
OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, IF APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED UPON THE EARLIER TO OCCUR OF THE TRANSFER OF THE NOTE
EVIDENCED HEREBY PURSUANT TO CLAUSE 2(F) ABOVE OR UPON ANY TRANSFER OF
THE NOTES EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS "UNITED
STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
1.87% CONVERTIBLE SUBORDINATED NOTES DUE 2006
No. $
CUSIP:
THE INTERPUBLIC GROUP OF COMPANIES, INC., a corporation duly organized and
validly existing under the laws of the State of Delaware (the "Company", which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to ___________, or
registered assigns, the principal sum of $___________ Dollars on June 1, 2006 at
the office or agency of the Company maintained for that purpose in New York, New
York, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and
to pay interest, semi-annually in arrears on June 1 and December 1 of each year,
commencing December 1, 1999 on said principal sum at said office or agency, in
like coin or currency, at the rate per annum of 1.87% from June 1 or December 1,
as the case may be, next preceding the date of this Note to which interest has
been paid or duly provided for, unless the date hereof is a date to which
interest has been paid or duly provided for, in which case from the date of this
Note, or unless no interest has been paid or duly provided for on the Notes, in
which case from June 1, 1999 until payment of said principal sum has been made
or duly provided for. Notwithstanding the foregoing, if the date hereof is after
any May 18 or November 17, as the case may be, and before the following June 1
or December 1, this Note shall bear interest from such June 1 or December 1;
provided, however, that if the Company shall default in the payment of interest
due on such June 1 or December 1, then this Note shall bear interest from the
next preceding June 1 or December 1 to which interest has been paid or duly
provided for or, if no interest has been paid or duly provided for on the Notes,
from June 1, 1999. The interest so payable on any June 1 or December 1 will be
paid to the person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on the record date, which shall be the May
18 or November 17 (whether or not a Business Day) next preceding such June 1 or
December 1, provided that any such interest not punctually paid or duly provided
for shall be payable as provided in the Indenture. Interest may, at the option
of the Company, be paid by check mailed to the registered address of such
person.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, including, without limitation, provisions subordinating the
payment of principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and interest, if
any, in respect of the Notes to the prior payment in full of all Senior Debt as
defined in the Indenture and provisions giving the holder of this Note the right
to convert this Note into Common Stock on the terms and subject to the
limitations referred to on the reverse hereof and as more fully specified in the
Indenture. Such further provisions shall for all purposes have the same effect
as though fully set forth at this place.
This Note shall be deemed to be a contract made under the laws of the State
of New York, and for all purposes shall be construed in accordance with and
governed by the laws of said State.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the
Trustee under the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
Dated: By: __________________________________
Title:
[Seal]
Attest:
_____________________
Secretary
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
Dated: By: _____________________________
Authorized Signatory
[FORM OF REVERSE OF NOTE]
THE INTERPUBLIC GROUP OF COMPANIES, INC.
1.87% Convertible Subordinated Notes
due 2006
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 1.87% Convertible Subordinated Notes due 2006 (herein called
the "Notes"), limited to the aggregate principal amount at maturity of
$361,000,000 all issued under and pursuant to an Indenture dated as of June 1,
1999 (herein called the "Indenture"), between the Company and The Bank of New
York (herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Notes.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the sum of the Issue Price plus accrued Original
Issue Discount and accrued interest on all Notes may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount at maturity of the Notes at the time outstanding, evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Notes; provided, however, that no such supplemental
indenture shall (i) extend the fixed maturity of any Note, reduce the rate or
extend the time of payment of interest thereon, change the rate of accrual or
extend the time of payment in connection with Original Issue Discount, reduce
the principal amount at maturity thereof, reduce any amount payable on
redemption thereof, change the obligation of the Company to make redemption of
any Note upon the happening of any Fundamental Change as referred to below,
impair or affect the right of any Noteholder to institute suit for the payment
thereof, change the currency in which the Notes and other amounts in respect
thereof are payable, modify the provisions of the Indenture with respect to the
subordination of the Notes in a manner adverse to the Noteholders, or impair the
right to convert the Notes into Common Stock subject to the terms set forth in
the Indenture, including Section 15.06, without the consent of the holder of
each Note so affected or (ii) reduce the aforesaid percentage of Notes, the
holders of which are required to consent to any such supplemental indenture,
without the consent of the holders of all Notes then outstanding. It is also
provided in the Indenture that, prior to any declaration accelerating the
maturity of the Notes, the holders of a majority in aggregate principal amount
at maturity of the Notes at the time outstanding may on behalf of the holders of
all of the Notes waive any past default or Event of Default under the Indenture
and its consequences except a default in the payment of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price or interest, if any, in respect of any of
the Notes, a failure by the Company to convert any Notes into Common Stock or a
default in respect of a covenant or provision of the Indenture which under
Article 11 of the Indenture cannot be modified or amended without the consent of
the holders of all Notes then outstanding. Any such consent or waiver by the
holder of this Note (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Note and any Notes which may be issued in exchange or substitution
herefor, irrespective of whether or not any notation thereof is made upon this
Note or such other Notes.
The indebtedness evidenced by the Notes is, to the extent and in the manner
provided in the Indenture, expressly subordinate and subject in right of payment
to the prior payment in full of all Senior Debt of the Company as defined in the
Indenture, whether outstanding at the date of the Indenture or thereafter
incurred, and this Note is issued subject to the provisions of the Indenture
with respect to such subordination. Each holder of this Note, by accepting the
same, agrees to and shall be bound by such provisions and authorizes the Trustee
on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and appoints the Trustee his attorney
in fact for such purpose.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and interest, if any, in respect of this Note at the place, at
the respective times, at the rate and in the coin or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months. Accrual of Original Issue Discount shall be calculated on
the basis of a 360-day year of twelve 30-day months, compounded semi-annually.
The Notes are issuable in registered form without coupons in denominations
of $1,000 principal amount at maturity and any multiple thereof. At the office
or agency of the Company referred to on the face hereof, and in the manner and
subject to the limitations provided in the Indenture, but without payment of any
service charge, Notes may be exchanged for a like aggregate principal amount at
maturity of Notes of other authorized denominations.
The Company may not redeem the Notes prior to June 5, 2002. On or after
that date, the Company may, at its option, redeem the Notes as a whole, or from
time to time in part, on any date prior to maturity, upon mailing a notice of
such redemption not less than 30 nor more than 60 days before the date fixed for
redemption to the holders of Notes at their last registered addresses, all as
provided in the Indenture, at the following optional Redemption Prices per
$1,000 principal amount at maturity (which prices reflect accrued Original Issue
Discount calculated to each such date), together in each case with accrued
interest to, but excluding, the date fixed for redemption. The Redemption Price
of a Note redeemed between such dates would include an additional amount
reflecting the additional Original Issue Discount accrued since the next
preceding date in the table to the actual Redemption Date.
(1) (2) (3)
Accrued Redemption
Note Original Issue Price
Redemption Date Issue Price Discount (1) + (2)
- --------------- ----------- -------- ---------
June 5, 2002 $830.18 $66.49 $896.67
June 1, 2003 $830.18 $90.18 $920.36
June 1, 2004 $830.18 $115.49 $945.67
June 1, 2005 $830.18 $142.02 $972.20
June 1, 2006 $830.18 $169.82 $1,000.00
Notwithstanding the foregoing, if the date fixed for redemption is a June 1 or
December 1, then the interest payable on such date shall be paid to the holder
of record on the next preceding May 18 or November 17.
The Notes are not subject to redemption through the operation of any
sinking fund.
If a Fundamental Change (as defined in the Indenture) occurs at any time
prior to June 1, 2006, each holder of Notes shall have the right, at such
holder's option, to require the Company to redeem all or any part of such
holder's Notes on the date (the "Fundamental Change Redemption Date") (or if
such date is not a Business Day, the next succeeding Business Day) that is 45
days after the date of the Company's notice of such Fundamental Change. Such
redemption shall be made at a price (the "Fundamental Change Redemption Price")
equal to the Issue Price plus accrued Original Issue Discount to the Fundamental
Change Redemption Date. In each case, the Company shall also pay accrued
interest, if any, on such Notes to, but excluding, the Fundamental Change
Redemption Date; provided that if such Fundamental Change Redemption Date is a
June 1 or December 1, then the interest payable on such date shall be paid to
the holder of record of the Note on the next preceding May 18 or November 17.
The Company shall mail to all holders of record of the Notes a notice of the
occurrence of a Fundamental Change and of the redemption right arising as a
result thereof on or before the 10th day after the occurrence of such
Fundamental Change. For a Note to be so repaid at the option of the holder, the
Company must receive at the office or agency of the Company maintained for that
purpose in New York, New York such Note with the form entitled "Option to Elect
Redemption Upon a Fundamental Change" on the reverse thereof duly completed,
together with such Notes duly endorsed for transfer, on or before the 30th day
after the date of such notice (or if such 30th day is not a Business Day, the
immediately preceding Business Day). All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Note for
redemption shall be determined by the Company, whose determination shall be
final and binding.
Subject to the provisions of the Indenture, the holder hereof has the
right, at his option, at any time through the close of business on June 1, 2006,
or, as to all or any portion hereof called for redemption, prior to the close of
business on the Business Day immediately preceding the date fixed for redemption
(unless the Company shall default in payment due upon redemption thereof), to
convert the principal hereof or any portion of such principal which is $1,000
principal amount at maturity or a multiple thereof, into that number of fully
paid and nonassessable shares of Common Stock, as said shares shall be
constituted at the date of conversion, obtained by dividing the principal amount
at maturity of this Note or portion thereof to be converted by $1,000 and
multiplying the result so obtained by $8.808 (the "Conversion Rate") or such
Conversion Rate as adjusted from time to time as provided in the Indenture, upon
surrender of this Note, together with a conversion notice as provided in the
Indenture, to the Company at the office or agency of the Company maintained for
that purpose in New York, New York, and, unless the shares issuable on
conversion are to be issued in the same name as this Note, duly endorsed by, or
accompanied by instruments of transfer in form satisfactory to the Company duly
executed by the holder or by his duly authorized attorney. No adjustments in
respect of accrued Original Issue Discount, interest or dividends will be made
upon any conversion; provided, however, that if this Note shall be surrendered
for conversion during the period from, but excluding, a record date for any
interest payment date to, but excluding such interest payment date, this Note
(unless it or the portion being converted shall have been called for redemption
on a date in such period) must be accompanied by an amount, in New York Clearing
House funds, equal to the interest payable on such interest payment date on the
principal amount at maturity being converted; provided further, however that no
such payment need be made if there shall exist at the time of conversion a
default in the payment of interest on the Notes. No fractional shares will be
issued upon any conversion, but an adjustment in cash will be made, as provided
in the Indenture, in respect of any fraction of a share which would otherwise be
issuable upon the surrender of any Note or Notes for conversion.
Any Notes called for redemption, unless surrendered for conversion on or
before the close of business on the Business Day immediately preceding the date
fixed for redemption, may be deemed to be purchased from the holder of such
Notes at an amount equal to the applicable Redemption Price, together with
accrued interest to, but excluding, the date fixed for redemption, by one or
more investment bankers or other purchasers who may agree with the Company to
purchase such Notes from the holders thereof and convert them into Common Stock
and to make payment for such Notes as aforesaid to the Trustee in trust for such
holders.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in New York, New York, a new Note or Notes of
authorized denominations for an equal principal amount at maturity will be
issued to the transferee in exchange herefor, subject to the limitations
provided in the Indenture, without charge except for any tax or other
governmental charge imposed in connection therewith.
The Company, the Trustee, any paying agent, any conversion agent and any
Note registrar may deem and treat the registered holder hereof as the absolute
owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment hereof, or on account hereof, for the conversion
hereof and for all other purposes, and neither the Company nor the Trustee nor
any other paying agent nor any other conversion agent nor any Note registrar
shall be affected by any notice to the contrary. All payments made to or upon
the order of such registered holder shall, to the extent of the sum or sums
paid, satisfy and discharge liability for monies payable on this Note.
No recourse for the payment of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price or interest, if any, in respect of this Note, or for any claim
based hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
Unless otherwise defined, all terms used in the Note which are defined in
the Indenture shall have the meanings assigned to them therein.
[FORM OF CONVERSION NOTICE]
CONVERSION NOTICE
To: The Interpublic Group of Companies, Inc.
The undersigned registered holder of this Note hereby irrevocably exercises
the option to convert this Note, or portion hereof (which is $1,000 principal
amount at maturity or a multiple thereof) below designated, into shares of
Common Stock of The Interpublic Group of Companies, Inc. in accordance with the
terms of the Indenture referred to in this Note, and directs that the shares
issuable and deliverable upon the conversion, together with any check in payment
for fractional shares and any Notes representing any unconverted principal
amount at maturity hereof, be issued and delivered to the registered holder
hereof unless a different name has been indicated below. If shares or any
portion of this Note not converted are to be issued in the name of a person
other than the undersigned, the undersigned will pay all transfer taxes payable
with respect thereto. Any amount required to be paid by the undersigned on
account of interest accompanies this Note.
Dated: _______________________________________
_______________________________________
Signature(s)
Fill in for registration of shares if to be delivered, and Notes if to be issued
other than to and in the name of the registered holder:
______________________________
(Name)
______________________________
(Street Address)
______________________________
(City, State and zip code)
Please print name and address
Principal amount at maturity to be
converted (if less than all):
$_____,000
_______________________________
Social Security or Other
Taxpayer Identification Number
[FORM OF ASSIGNMENT]
For value received ___________________________ hereby sell(s), assign(s) and
transfer(s) unto ________________________________________________________
(Please insert social security or other taxpayer identification
number of assignee.)
the within Note and hereby irrevocably constitutes and appoints ______________
attorney to transfer the said Note on the books of the Company, with full power
of substitution in the premises.
In connection with any transfer of the within Note occurring within two years of
the original issuance of such Note, the undersigned confirms that such Note is
being transferred:
|_| To The Interpublic Group of Companies, Inc. or a subsidiary thereof;
or
|_| Pursuant to and in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
|_| To an Institutional Accredited Investor pursuant to and in compliance
with the Securities Act of 1933, as amended; or
|_| Pursuant to and in compliance with Regulation S under the Securities
Act of 1933, as amended; or
|_| Pursuant to and in compliance with Rule 144 under the Securities Act
of 1933, as amended.
and unless the box below is checked, the undersigned confirms that such Note is
not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
|_| The transferee is an Affiliate of the Company.
Dated: ___________________
___________________________
Signature(s)
___________________________
Signature Guarantee
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
[FORM OF OPTION TO ELECT REDEMPTION
UPON A FUNDAMENTAL CHANGE]
To: The Interpublic Group of Companies, Inc.
The undersigned registered holder of this Note hereby acknowledges receipt
of a notice from The Interpublic Group of Companies, Inc. (the "Company") as to
the occurrence of a Fundamental Change with respect to the Company and requests
and instructs the Company to redeem this Note, or portion hereof (which is
$1,000 principal amount at maturity or a multiple thereof) below designated, in
accordance with the terms of the Indenture referred to in this Note, together
with accrued interest to such date, to the registered holder hereof.
Principal amount at maturity to be redeemed (if less than all):
$_____,000
Dated: __________________________
________________________________
Signature(s)
_________________________________
Social Security or Other
Taxpayer Identification Number
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
[FORM OF SCHEDULE FOR
ENDORSEMENTS ON GLOBAL SECURITY
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Security
Date Principal Amount of Securities by
Which This Global Security Is to
Be Reduced or Increased, and Remaining Principal Amount Notation
Reason for Reduction or Increase of This Global Security Made by
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AND WHEREAS, all acts and things necessary to make the Notes, when executed
by the Company and authenticated and made available for delivery by the Trustee,
as in this Indenture provided, the valid, binding and legal obligations of the
Company, and to constitute a valid agreement according to its terms, have been
done and performed, and the execution of this Indenture and the issue hereunder
of the Notes have in all respects been duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are,
and are to be, authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Notes by the holders thereof,
the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section (except as
herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture which are defined in the Trust Indenture Act of 1939 or
which are by reference therein defined in the Securities Act of 1933, as
amended, shall have the meanings assigned to such terms in the Trust Indenture
Act and in the Securities Act as in force at the date of this Indenture (except
as herein otherwise expressly provided or unless the context otherwise clearly
requires). The words "herein", "hereof" and "hereunder" and words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article include the
plural as well as the singular.
Affiliate: The term "Affiliate" with respect to any specified Person means
any other Person directly or indirectly controlling or controlled by or under
direct or indirect common control with such specified Person. For the purposes
of this definition, "control," when used with respect to any specified Person
means the power to direct or cause the direction of the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
Board of Directors: The term "Board of Directors" means the Board of
Directors of the Company or a committee of such Board duly authorized to act for
it hereunder.
Business Day: The term "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which the banking
institutions in The City of New York are authorized or obligated by law or
executive order to close or be closed.
Commission: The term "Commission" means the Securities and Exchange
Commission.
Common Stock: The term "Common Stock" means any stock of any class of the
Company which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or winding up
of the Company and which is not subject to redemption by the Company. Subject to
the provisions of Section 15.06, however, shares issuable on conversion of Notes
shall include only shares of Common Stock, $.10 par value per share (which is
the class designated as Common Stock of the Company at the date of this
Indenture), or shares of any class or classes resulting from any
reclassification or reclassifications thereof and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable shall be substantially in the proportion to 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: The term "Company" means The Interpublic Group of Companies, Inc.,
a Delaware corporation, and subject to the provisions of Article 12 shall
include its successors and assigns.
Conversion Rate: The term "Conversion Rate" has the meaning specified in
Section 15.04.
Depositary: The term "Depositary" means, with respect to the Notes issuable
or issued in whole or in part in global form, the person specified in Section
2.05 as the Depositary with respect to the Notes, until a successor shall have
been appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depositary" shall mean or include such successor.
Event of Default: The term "Event of Default" means any event or condition
specified as such in Section 7.01, continued for the period of time, if any, and
after the giving of the notice, if any, therein designated.
Fundamental Change: The term "Fundamental Change" means the occurrence of
any transaction or event in connection with which all or substantially all of
the Common Stock shall be exchanged for, converted into, acquired for or
constitute the right to receive consideration (whether by means of an exchange
offer, liquidation, tender offer, consolidation, merger, combination,
reclassification, recapitalization or otherwise) which is not all or
substantially all of the common stock of a company listed (or, upon consummation
of or immediately following such transaction or event, which will be listed) on
a United States national securities exchange or approved for quotation on the
Nasdaq National Market or any similar United States system of automated
dissemination of quotations of securities prices.
Fundamental Change Redemption Date: The term "Fundamental Change Redemption
Date" has the meaning ascribed to it in Section 16.01(a).
Fundamental Change Redemption Price: The term "Fundamental Change
Redemption Price" has the meaning ascribed to it in the form of Note.
Indenture: The term "Indenture" means this instrument as originally
executed and delivered or, if amended or supplemented as herein provided, as so
amended or supplemented.
Institutional Accredited Investor: The term "Institutional Accredited
Investor" means an institutional "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) under the Securities Act.
Issue Price: The term "Issue Price" means, in connection with the original
issuance of such Note (including any Predecessor Note), the initial issue price
at which the Note is sold as set forth on the face of the Note.
Nasdaq National Market: The term "Nasdaq National Market" means the
electronic inter-dealer quotation system operated by NASDAQ, Inc., a subsidiary
of the National Association of Securities Dealers, Inc.
Non-U.S. Person: The term "Non-U.S. Person" means a person other than a
U.S. Person (as defined in Regulation S).
Note or Notes: The terms "Note" or "Notes" mean any Note or Notes, as the
case may be, authenticated and delivered under this Indenture.
Noteholder: The terms "Noteholder" or "holder of Notes", or other similar
terms, mean any person in whose name at the time a particular Note is registered
on the books of the Company kept for that purpose in accordance with the terms
hereof.
Notes Payment: The term "Notes Payment" has the meaning specified in
Section 4.02.
Officers' Certificate: The term "Officers' Certificate", when used with
respect to the Company, means a certificate signed both (a) by its Chairman of
the Board of Directors, or any Vice-Chairman of the Board of Directors, or its
President or any Vice President (whether or not designated by a number or
numbers or a word or words added before or after the title "Vice President") and
(b) by its Treasurer, Controller, Secretary or any Assistant Secretary and
delivered to the Trustee. Each such certificate shall comply with Section 314 of
the Trust Indenture Act of 1939 and include the statements provided for in
Section 17.06.
Opinion of Counsel: The term "Opinion of Counsel" means an opinion in
writing signed by legal counsel, who may be an employee of or counsel to the
Company or other counsel acceptable to the Trustee. Each such opinion shall
comply with Section 314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 17.06, if and to the extent required hereby.
Original Issue Discount: The term "Original Issue Discount" of any Note
means the difference between the Issue Price and the principal amount at
maturity of the Note as set forth on the face of the Note. For purposes of this
Indenture and the Notes, accrual of Original Issue Discount shall be calculated
on the basis of a 360-day year of twelve 30-day months, compounded
semi-annually.
Outstanding: The term "outstanding", when used with reference to the Notes,
subject to the provisions of Section 9.04, means, as of any particular time, all
Notes authenticated and made available for delivery by the Trustee under this
Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, for the payment or redemption of which
monies in the necessary amount shall have been deposited in trust with the
Trustee or with any paying agent (other than the Company) or shall have
been set aside, segregated and held in trust by the Company (if the Company
shall act as its own paying agent), provided that if such Notes are to be
redeemed prior to the maturity thereof, notice of such redemption shall
have been given as provided in Article 3, or provision satisfactory to the
Trustee shall have been made for giving such notice;
(c) Notes paid or Notes in lieu of or in substitution for which other
Notes shall have been authenticated and made available for delivery
pursuant to the terms of Section 2.06 unless proof satisfactory to the
Trustee is presented that any such Notes are held by bona fide holders in
due course; and
(d) Notes converted into Common Stock pursuant to Article hereof and
Notes not deemed outstanding pursuant to Section 3.02.
Person: The term "Person" means a corporation, an association, a
partnership, an organization, an individual, a government or a political
subdivision thereof or a governmental agency, and includes any successor (by
merger or otherwise) of such entity.
PORTAL Market: The term "PORTAL" Market means the Private Offerings,
Resales and Trading through Automated Linkages Market operated by the National
Association of Securities Dealers Inc. or any successor thereto.
Predecessor Note: The term "Predecessor Note" of any particular Note means
every previous Note evidencing all or a portion of the same debt as that
evidenced by such particular Note; and, for the purposes of this definition, any
Note authenticated and delivered under Section 2.06 in lieu of a lost, destroyed
or stolen Note shall be deemed to evidence the same debt as the lost, destroyed
or stolen Note.
Principal Office of the Trustee: The term "principal office of the
Trustee", or other similar term, means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office is, at the date as of which this Indenture is dated, located at The
Bank of New York, 101 Barclay Street, 21 West, New York, NY 10286; Attn:
Corporate Trust Trustee Administration.
Proceeding: The term "Proceeding" has the meaning specified in Section
4.02.
QIB: The term "QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
Redemption Price: The term "Redemption Price" means the applicable
redemption price as set forth in the form of Note herein above recited,
including any applicable additional Original Issue Discount referred to therein.
Regulation S: The term "Regulation S" means Regulation S as promulgated
under the Securities Act.
Responsible Officer: The term "Responsible Officer", when used with respect
to the Trustee, means any vice president (whether or not designated by numbers
or words added before or after the title "vice president"), any trust officer,
any assistant trust officer, any assistant vice president, any assistant
treasurer, or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
Rule 144A: The term "Rule 144A" means Rule 144A as promulgated under the
Securities Act.
Senior Debt: The term "Senior Debt" means the principal of and premium, if
any and interest on the following, whether outstanding at the date of execution
of this Indenture or thereafter incurred or created:
(a) indebtedness of the Company for money borrowed, or evidenced by a
note or similar instrument or written agreement given in connection with
the acquisition of any businesses, properties or assets, including
securities,
(b) indebtedness of the Company to banks or financial institutions
evidenced by notes or other written obligations,
(c) indebtedness of the Company evidenced by notes, debentures, bonds
or other securities issued under the provisions of an indenture or similar
instrument,
(d) indebtedness of others of the kinds described in the preceding
clauses (a), (b) and (c) that the Company has assumed, guaranteed or
otherwise assured the payment thereof, directly or indirectly, and
(e) deferrals, renewals, extensions and refundings of, or bonds,
debentures, notes or other evidences of indebtedness issued in exchange
for, the indebtedness described in the preceding clauses (a) through (d)
whether or not there is any notice to or consent of the holders of Notes;
except (i) indebtedness and advances among the Company and its direct and
indirect subsidiaries, (ii) any particular indebtedness, deferral, renewal,
extension or refunding, if it is expressly stated in the governing terms,
or in the assumption or guarantee, thereof that the indebtedness involved
is not Senior Debt and (iii) the Company's 1.80% Convertible Subordinated
Debentures due 2004.
Trigger Event: The term "Trigger Event" is defined in Section 15.05(h).
Trustee: The term "Trustee" means The Bank of New York and, subject to the
provisions of Article 8 hereof, shall also include its successors and assigns as
Trustee hereunder.
Trust Indenture Act of 1939: The term "Trust Indenture Act of 1939" means
the Trust Indenture Act of 1939 as in force at the date as of which this
Indenture was originally executed.
U.S. Government Obligations: The term "U.S. Government Obligations" means
direct obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or
instrumentality thereof) for the payment of which the full faith and credit of
the United States of America is pledged and which are not callable at the
Company's option.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01. Designation, Amount and Issue of Notes. The Notes shall be
designated as "1.87% Convertible Subordinated Notes due 2006". Notes not to
exceed the aggregate principal amount at maturity of $361,000,000 (except
pursuant to Sections 2.05, 2.06, 3.03, 15.02 and 16.01) upon the execution of
this Indenture, or from time to time thereafter, may be executed by the Company
and delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and make available for delivery said Notes to or upon the written
order of the Company, signed both (a) by its Chairman of the Board of Directors,
or any Vice-Chairman of the Board of Directors, or its President or any Vice
President (whether or not designated by a number or numbers or a word or words
added before or after the title "Vice President") and (b) by its Treasurer, or
Controller, or Secretary or any Assistant Secretary without any further action
by the Company hereunder.
Section 2.02. Form of Notes. The Notes and the Trustee's certificate of
authentication to be borne by the Notes shall be substantially in the form as in
this Indenture above recited. Any of the Notes may have imprinted thereon such
legends or endorsements as the officers executing the same may approve
(execution thereof to be conclusive evidence of such approval) and as are not
inconsistent with the provisions of this Indenture, or as may be required to
comply with any law or with any rule or regulation made pursuant thereto or with
any rule or regulation of any stock exchange on which the Notes may be listed or
any trading system in which the Notes may be admitted, or to conform to usage.
Section 2.03. Date and Denomination of Notes; Payments of Interest. The
Notes shall be issuable in registered form without coupons in denominations of
$1,000 principal amount at maturity and any multiple thereof. Every Note shall
be dated the date of its authentication, shall bear interest from the applicable
date and shall be payable on the dates specified on the face of the form of Note
recited above.
The person in whose name any Note (or its Predecessor Note) is registered
at the close of business on any record date with respect to any interest payment
date shall be entitled to receive the interest payable on such interest payment
date, except (i) that the interest payable upon redemption (unless the date of
redemption is an interest payment date) will be payable to the person to whom
principal amount at maturity is payable and (ii) as set forth in the next
succeeding sentence. In the case of any Note (or portion thereof) which is
converted into Common Stock during the period from, but excluding, a record date
to, but excluding, the next succeeding interest payment date either (i) if such
Note (or portion thereof) has been called for redemption on a redemption date
which occurs during such period, or is to be redeemed in connection with a
Fundamental Change on a Fundamental Change Redemption Date which occurs during
such period, the Company shall not be required to pay interest on such interest
payment date in respect of any such Note (or portion thereof) expect to the
extent required to be paid upon redemption of such Note or portion thereof
pursuant to Section 3.03 or Section 16.01 hereof or (ii) if otherwise, any Note
(or portion thereof) submitted for conversion during such period shall be
accompanied by funds equal to the interest payable on such succeeding interest
payment date on the principal amount so converted in accordance with the
provisions of Section 15.02 hereof, unless at the time of conversion there
exists a default in the payment of interest on the Notes. Interest may, at the
option of the Company, be paid by check mailed to the address of such person on
the registry kept for such purposes or by wire transfer in immediately available
funds to an account maintained by such person in the United States; provided
that with respect to any holder of Notes with an aggregate principal amount at
maturity equal to or in excess of $10 million, at the request of such holder in
writing the Company shall pay interest on such holder's Notes by wire transfer
in immediately available funds. The term "record date" with respect to any
interest payment date shall mean the May 18 or November 17 (whether or not a
Business Day) preceding said June 1 or December 1. Interest on the Notes shall
be computed on the basis of a 360-day year of twelve 30-day months. Accrual of
Original Issue Discount shall be calculated on the basis of a 360-day year of
twelve 30-day months, compounded semi-annually.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any said June 1 or December 1 (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Noteholder on the relevant
record date by virtue of his having been such Noteholder; and such Defaulted
Interest shall be paid by the Company, at its election in each case, as provided
in clause (1) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which date shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date
of the proposed payment (which shall be not less than 25 days after the
receipt by the Trustee of such notice, unless the Trustee shall consent to
an earlier date), and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be mailed, first-class postage prepaid
to each Noteholder at his address as it appears in the Note register, not
less than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Notes (or their respective Predecessor Notes) are
registered at the close of business on such special record date and shall
no longer be payable.
Section 2.04. Execution of Notes. The Notes shall be signed in the name and
on behalf of the Company by the manual or facsimile signature of its President
or its Chief Executive Officer and attested by the manual or facsimile signature
of its Secretary or its Chief Financial Officer (which may be printed, engraved
or otherwise reproduced thereon, by facsimile or otherwise). Only such Notes as
shall bear thereon a certificate of authentication substantially in the form
hereinbefore recited, manually executed by the Trustee, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. Such
certificate by the Trustee upon any Note executed by the Company shall be
conclusive evidence that the Note so authenticated has been duly authenticated
and made available for delivery hereunder and that the holder is entitled to the
benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Notes
shall cease to be such officer before the Notes so signed shall have been
authenticated and made available for delivery by the Trustee, or disposed of by
the Company, such Notes nevertheless may be authenticated and made available for
delivery or disposed of as though the person who signed such Notes had not
ceased to be such officer of the Company; and any Note may be signed on behalf
of the Company by such persons as, at the actual date of the execution of such
Note, shall be the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such an officer.
In authenticating such Notes, and accepting the additional responsibilities
under this Indenture in relation to such Notes, the Trustee shall be entitled to
receive, and, shall be fully protected in relying upon:
(a) A copy of the resolution or resolutions of the Board of Directors
in or pursuant to which the terms and form of the Notes were established,
certified by the Secretary or an Assistant Secretary of the Company to have
been duly adopted by the Board of Directors and to be in full force and
effect as of the date of such certificate, and if the terms and form of
such Notes are established by an Officers' Certificate pursuant to general
authorization of the Board of Directors, such Officers' Certificate;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate delivered in accordance with Section
17.06; and
(d) an Opinion of Counsel which shall state:
(1) that the form of such Note has been established by a supplemental
indenture or by or pursuant to a resolution of the Board of Directors in
accordance with Sections 2.01 and 2.02 and in conformity with the
provisions of this Indenture;
(2) that the terms of such Notes have been established in accordance
with Section 2.01 and in conformity with the other provisions of this
Indenture; and
(3) that such Notes, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles;
The Trustee shall have the right to decline to authenticate and deliver any
Notes under this Section if the Trustee, being advised by counsel, determines
that such action may not lawfully be taken or if the Trustee in good faith by
its board of directors or trustees, executive committee, or a trust committee of
directors or trustees or vice presidents shall determine that such action would
expose the Trustee to personal liability to existing Holders.
Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions
on Transfers; Depositary. (a) The Company shall keep at its principal office, or
shall cause to be kept, at one of the offices or agencies maintained pursuant to
Section 5.02, a register (the "Register") in which, subject to such reasonable
regulations as it may prescribe, Notes shall be registered and the transfer of
Notes shall be registered as in this Article 2 provided. Such Register shall be
in written form or in any other form capable of being converted into written
form within a reasonable time. At all reasonable times such Register shall be
open for inspection by the Trustee. Upon due presentment for registration of
transfer of any Note at any office or agency maintained by the Company pursuant
to Section 5.02, the Company shall execute and register and the Trustee shall
authenticate and make available for delivery in the name of the transferee or
transferees a new Note or Notes for an equal principal amount at maturity.
Upon surrender for registration of transfer of any Note to the Trustee and
satisfaction of the requirements for such transfer set forth in this Section
2.05, the Company shall execute, and the Trustee shall authenticate and make
available for delivery, in the name of the designated transferee or transferees,
one or more new Notes of any authorized denominations and of a like aggregate
principal amount at maturity and bearing such restrictive legends as may be
required by this Indenture.
Notes may be exchanged for a like aggregate principal amount at maturity of
Notes of other authorized denominations. Notes to be exchanged shall be
surrendered at any office or agency to be maintained by the Company pursuant to
Section 5.02 and the Company shall execute and register and the Trustee shall
authenticate and make available for delivery in exchange therefor the Note or
Notes which the Noteholder making the exchange shall be entitled to receive,
bearing registration numbers not contemporaneously outstanding.
All Notes presented for registration of transfer or for exchange,
redemption, conversion or payment shall (if so required by the Company or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee duly
executed by, the holder or his attorney duly authorized in writing.
No service charge shall be charged to the Noteholder for any exchange or
registration of transfer of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection therewith.
Neither the Company nor the Trustee shall be required to exchange or
register a transfer of (a) any Notes for a period of 15 days next preceding any
selection of Notes to be redeemed or (b) any Notes or portions thereof selected
or called for redemption or (c) any Notes or portion thereof surrendered for
conversion or (d) any Notes or portion thereof surrendered for redemption
pursuant to Article 16.
All Notes issued upon any transfer or exchange of Notes shall be valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture as the Notes surrendered upon such exchange or
transfer.
(b) So long as the Notes are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, all Notes that upon initial
issuance are beneficially owned by QIBs, and all Notes that are beneficially
owned by Non-U.S. Persons as a result of a sale or transfer after initial
issuance and all Notes to be traded on the PORTAL Market shall be represented by
one or more Notes in global form registered in the name of the Depositary or the
nominee of the Depositary. The transfer and exchange of beneficial interests in
such Note(s) in global form shall be effected through the Depositary, in
accordance with this Indenture (including the restrictions on transfer set forth
herein) and the procedures of the Depositary therefor.
Upon any sale or transfer of a Note to an Institutional Accredited Investor
that is not a QIB (other than pursuant to a registration statement that has been
declared effective under the Securities Act), such Institutional Accredited
Investor shall, prior to such sale or transfer, furnish to the Company and the
Trustee a signed letter containing representations and agreements relating to
restrictions on transfer substantially in the form set forth in Annex A to the
offering memorandum dated as of May 26, 1999 relating to the offering of the
Notes. Notes issued to such Institutional Accredited Investors shall be issued
in definitive form, registered in the name of the holder, and shall not be
represented by a Note in global form deposited with the Depositary.
Except as provided below, an owner of a beneficial interest in a Note in
global form shall not be entitled to have a definitive Note registered in his,
her or its name, will not receive or be entitled to receive physical delivery of
definitive Notes and will not be considered a "Noteholder" or a "holder of
Notes" in global form.
Any transfer of a beneficial interest in a Note in global form which cannot
be effected through book-entry settlement must be effected by the delivery to
the transferee (or its nominee) of a definitive Note or Notes registered in the
name of the transferee (or its nominee) on the Register. With respect to any
such transfer, the Trustee will cause, in accordance with the standing
instructions and procedures of the Depositary, the principal amount at maturity
of the Note in global form to be reduced and, following such reduction, the
Company will execute and the Trustee will authenticate and make available for
delivery to the transferee (or such transferee's nominee, as the case may be), a
Note or Notes in the appropriate principal amount at maturity in the name of
such transferee (or its nominee) and bearing such restrictive legends as may be
required by this Indenture.
(c) So long as the Notes are eligible for book-entry settlement, or unless
otherwise required by law, upon any transfer of a definitive Note to a QIB in
accordance with Rule 144A or to a Non-U.S. Person in accordance with Regulation
S, unless otherwise requested by the transferor, and upon receipt of the
definitive Note or Notes being so transferred, together with a certification
from the transferor that the transfer is being made in compliance with Rule 144A
or to a Non-U.S. Person in accordance with Regulation S (or other evidence
satisfactory to the Trustee), the Trustee shall make an endorsement on the Note
in global form to reflect an increase in the principal amount at maturity of the
Notes represented by the Note in global form, the Trustee shall cancel such
definitive Note or Notes in accordance with the standing instructions and
procedures of the Depositary, the aggregate principal amount at maturity of
Notes represented by the Note in global form to be increased accordingly;
provided that no definitive Note, or portion thereof, in respect of which the
Company or an Affiliate of the Company held any beneficial interest shall be
included in such Note in global form until such definitive Note is freely
tradable in accordance with Rule 144(k); provided further that the Trustee shall
issue Notes in definitive form upon any transfer of a beneficial interest in the
Note in global form to the Company or any Affiliate of the Company.
Any Note in global form may be endorsed with or have incorporated in the
text thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the custodian for the
Depositary, the Depositary or by the National Association of Securities Dealers,
Inc. in order for the Notes to be tradeable on the PORTAL Market or as may be
required for the Notes to be tradeable on any other market developed for trading
of securities pursuant to Rule 144A or Regulation S or required to comply with
any applicable law or any regulation thereunder or with the rules and
regulations of any securities exchange or automated quotation system upon which
the Notes may be listed or traded or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Notes are subject.
(d) Each Note shall be subject to the restrictions on transfer provided in
the legend set forth below, unless such restrictions on transfer shall be waived
by the written consent of the Company, and the holder of each Note, by such
Noteholder's acceptance thereof, agrees to be bound by such restrictions on
transfer. As used in this Section 2.05(d) and in Section 2.05(e), the term
"transfer" encompasses any sale, pledge, transfer or other disposition of any
Note.
Until the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), any
certificate evidencing such Note (and all securities issued in exchange or
substitution therefor, other than Common Stock, if any, issued upon conversion
thereof that shall bear the legend set forth in Section 2.05(e), if applicable)
shall bear a legend in substantially the following form, unless such Note has
been sold pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the time of
such transfer), or unless otherwise agreed by the Company (with written notice
thereof to the Trustee):
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) UNDER
THE SECURITIES ACT) ("INSTITUTIONAL ACCREDITED INVESTOR"), (2) AGREES THAT
IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES
OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE NOTE
EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE
EXCEPT (A) TO THE INTERPUBLIC GROUP OF COMPANIES, INC. OR ANY SUBSIDIARY
THEREOF, (B) INSIDE THE UNITED STATES TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED
STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH
TRANSFER, FURNISHED TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, IF APPLICABLE), A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS
AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE NOTE
EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM SUCH
TRUSTEE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (F)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME
OF SUCH TRANSFER), (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 2(F) ABOVE), IT WILL FURNISH TO THE BANK OF NEW YORK, AS
TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY
PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
NOTE EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH
ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT
THIS CERTIFICATE TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, IF APPLICABLE). IF THE PROPOSED TRANSFEREE IS AN INSTITUTIONAL
ACCREDITED INVESTOR OR A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE
(OR A SUCCESSOR TRUSTEE, IF APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS IT MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER TO OCCUR OF THE TRANSFER
OF THE NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE 2(F) ABOVE OR UPON ANY
TRANSFER OF THE NOTES EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.
Any Note (or security issued in exchange or substitution therefor) as to
which such restrictions on transfer shall have expired in accordance with their
terms or as to which the conditions for removal of the foregoing legend set
forth therein have been satisfied may, upon surrender of such Note for exchange
to the Note registrar in accordance with the provisions of this Section 2.05, be
exchanged for a new Note or Notes, of like tenor and aggregate principal amount
at maturity, which shall not bear the restrictive legend required by this
Section 2.05(d).
Notwithstanding any other provisions of this Indenture (other than the
provisions set forth in this Section 2.05), a Note in global form may not be
transferred as a whole or in part 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.
The Depositary shall be a clearing agency registered under the Exchange
Act. The Company initially appoints The Depository Trust Company to act as
Depositary with respect to the Notes in global form. Initially, the global Notes
shall be issued to the Depositary, registered in the name of Cede & Co., as the
nominee of the Depositary, and deposited with the custodian for Cede & Co.
If at any time the Depositary for the Notes in global form notifies the
Company that it is unwilling or unable to continue as Depositary for such Notes,
the Company may appoint a successor Depositary with respect to such Notes. If a
successor Depositary for the Notes is not appointed by the Company within 90
days after the Company receives such notice, the Company will execute, and the
Trustee, upon receipt of an Officers' Certificate for authentication and
delivery of Notes, will authenticate and make available for delivery Notes in
definitive form, in an aggregate principal amount at maturity equal to the
principal amount at maturity of the Notes in global form, in exchange for the
Notes in the global form.
If a definitive Note is issued in exchange for any portion of a Note in
global form after the close of business at the office or agency where such
exchange occurs on any record date and before the opening of business at such
office or agency on the next succeeding interest payment date, interest will not
be payable on such interest payment date, subject to the provisions of Section
2.03, in respect of such Note, but will be payable on such interest payment date
only to the person to whom interest in respect of such portion of such Note in
global form is payable in accordance with the provisions of this Indenture.
Definitive Notes issued in exchange for all or a part of a Note in global
form pursuant to this Section 2.05 shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee. Upon
execution and authentication, the Trustee shall make available for delivery such
definitive Notes to the person in whose names such definitive Notes are so
registered.
At such time as all interests in a Note in global form have been redeemed,
converted, repurchased, canceled, exchanged for definitive Notes or transferred
to a transferee who receives a definitive Note, such Note in global form shall,
upon receipt thereof, be canceled by the Trustee in accordance with standing
procedures and instructions existing between the custodian for the Depositary
and the Depositary. At any time prior to such cancellation, if any interest in a
global Note is exchanged for definitive Notes, redeemed, converted, repurchased,
canceled, or transferred to a transferee who receives definitive Notes therefor
or any definitive Note is exchanged or transferred for part of a Note in global
form, the principal amount at maturity of such Note in global form shall, in
accordance with the standing procedures and instructions existing between the
custodian for the Depositary and the Depositary be reduced or increased, as the
case may be, and an endorsement shall be made on such Note in global form by the
Trustee or the custodian for the Depositary, at the direction of the Trustee, to
reflect such reduction or increase.
(e) Until the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), any
stock certificate representing Common Stock issued upon conversion of such Note
shall bear a legend in substantially the following form, unless such Common
Stock has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the
time of such transfer) or such Common Stock has been issued upon conversion of
Notes that have been transferred pursuant to a registration statement that has
been declared effective under the Securities Act, or unless otherwise agreed by
the Company (with written notice thereof to the transfer agent for the Common
Stock):
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN
THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS
EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES
THAT UNTIL THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO THE INTERPUBLIC GROUP OF
COMPANIES, INC. OR TO ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES
TO A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN COMPLIANCE WITH RULE 144A, (C) INSIDE THE UNITED STATES
TO AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT) THAT PRIOR TO SUCH TRANSFER,
FURNISHES TO FIRST CHICAGO TRUST COMPANY OF NEW YORK, AS TRANSFER AGENT (OR
A SUCCESSOR TRANSFER AGENT, AS APPLICABLE), A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON
TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN
BE OBTAINED FROM SUCH TRANSFER AGENT OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), (D) OUTSIDE THE UNITED STATES IN COMPLIANCE WITH RULE 904
UNDER THE SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), OR (F)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME
OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE 1(F) ABOVE), IT WILL FURNISH TO FIRST CHICAGO TRUST
COMPANY OF NEW YORK, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS IT
MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND (3) IT WILL DELIVER TO EACH PERSON
TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 1(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY PURSUANT TO CLAUSE 1(F) ABOVE
OR UPON ANY TRANSFER OF THE COMMON STOCK EVIDENCED HEREBY AFTER THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE SECURITY
EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION). AS USED HEREIN, THE TERMS "UNITED STATES" AND "U. S.
PERSON" HAVE THE MEANING GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
Any certificates representing shares of Common Stock as to which such
restrictions on transfer shall have expired in accordance with their terms or as
to which the conditions for removal of the foregoing legend set forth therein
have been satisfied may, upon surrender thereof for exchange in accordance with
the procedures of the transfer agent for the Common Stock, be exchanged for a
new certificate or certificates for a like number of shares of Common Stock,
which shall not bear the restrictive legend required by this Section 2.05(e).
(f) Any certificate evidencing a Note that has been transferred to an
Affiliate of the Company prior to the expiration of the holding period
applicable to sales thereof under Rule 144(k) under the Securities Act (or any
successor provision), as evidenced by a notation on the assignment form for such
transfer or in the representation letter delivered in respect thereof, shall,
until two years after the last date on which the Company or any Affiliate of the
Company was an owner of such Note, bear a legend in substantially the following
form, unless otherwise agreed by the Company (with written notice thereof to the
Trustee);
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES
LAW, AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES
OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER AGREES (1)
THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR
THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH NOTE EXCEPT (A) TO THE
INTERPUBLIC GROUP OF COMPANIES, INC. OR ANY SUBSIDIARY THEREOF, (B) IN A
TRANSACTION REGISTERED UNDER THE SECURITIES ACT OR (C) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) AND (2) THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE NOTE
EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IF THE PROPOSED TRANSFER IS PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE
(OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. AS USED HEREIN, THE TERMS "UNITED STATES" AND "U.S. PERSON"
HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
Any stock certificate representing Common Stock issued upon conversion of
such Note shall also bear a legend in substantially the form indicated above,
unless otherwise agreed by the Company (with written notice thereof to the
Trustee).
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes. In case any
temporary or definitive Note shall become mutilated or be apparently destroyed,
lost or stolen, the Company in its discretion may execute, and upon its request
the Trustee shall authenticate and make available for delivery, a new Note,
bearing a number not contemporaneously outstanding, in exchange and substitution
for the mutilated Note, or in lieu of and in substitution for the Note so
apparently destroyed, lost or stolen. In every case the applicant for a
substituted Note shall furnish to the Company and to the Trustee such security
or indemnity as may be required by them to save each of them harmless, and, in
every case of destruction, loss or theft, the applicant shall also furnish to
the Company and to the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof.
The Trustee may authenticate any such substituted Note and make available
for delivery the same upon the receipt of such security or indemnity as the
Trustee and the Company may require. Upon the issuance of any substituted Note,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note which has matured or is about to
mature or has been called for redemption or is about to be converted into Common
Stock shall become mutilated or be destroyed, lost or stolen, the Company may,
instead of issuing a substitute Note, pay or authorize the payment of or convert
or authorize the conversion of the same (without surrender thereof except in the
case of a mutilated Note) if the applicant for such payment or conversion shall
furnish to the Company and to the Trustee such security or indemnity as may be
required by them to save each of them harmless and, in case of destruction, loss
or theft, evidence satisfactory to the Company and the Trustee of the
destruction, loss or theft of such Note and of the ownership thereof.
Every substituted Note issued pursuant to the provisions of this Section
2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the apparently destroyed, lost or stolen Note shall be found at any time, and
shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any
and all other Notes duly issued hereunder. To the extent permitted by law, all
Notes shall be held and owned upon the express condition that the foregoing
provisions are exclusive with respect to the replacement or payment or
conversion of mutilated, destroyed, lost or stolen Notes and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment or
conversion of negotiable instruments or other securities without their
surrender.
Section 2.07. Temporary Notes. Pending the preparation of definitive Notes,
the Company may execute and the Trustee shall authenticate and make available
for delivery temporary Notes (printed or lithographed). Temporary Notes shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Notes but with such omissions, insertions and variations as may be
appropriate for temporary Notes, all as may be determined by the Company. Every
such temporary Note shall be executed by the Company and authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
the same effect, as the definitive Notes. Without unreasonable delay the Company
will execute and deliver to the Trustee definitive Notes and thereupon any or
all temporary Notes may be surrendered in exchange therefor, at each office or
agency maintained by the Company pursuant to Section 5.02 and the Trustee shall
authenticate and make available for delivery in exchange for such temporary
Notes an equal aggregate principal amount at maturity of definitive Notes. Such
exchange shall be made by the Company at its own expense and without any charge
therefor. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes
authenticated and made available for delivery hereunder.
Section 2.08. Cancellation of Notes Paid, Etc. All Notes surrendered for
the purpose of payment, redemption, conversion, exchange or registration of
transfer, shall, if surrendered to the Company or any paying agent or any Note
registrar or any conversion agent, be surrendered to the Trustee and promptly
canceled by it, or, if surrendered to the Trustee, shall be promptly canceled by
it, and no Notes shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Trustee shall dispose of all
canceled Notes in accordance with applicable law and its customary practice in
effect from time to time. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Notes unless and until the same are delivered
to the Trustee for cancellation.
Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE III
REDEMPTION OF NOTES
Section 3.01. Redemption Prices. The Company may not redeem the Notes prior
to June 5, 2002. On or after that date, the Company may, at its option, redeem
all or from time to time any part of the Notes on any date prior to maturity,
upon notice as set forth in Section 3.02, and at the optional Redemption Prices
set forth in the form of Note herein above recited, together with interest, if
any to, but excluding, the date fixed for redemption.
Section 3.02. Notice of Redemption; Selection of Notes. In case the Company
shall desire to exercise the right to redeem all or, as the case may be, any
part of the Notes pursuant to Section 3.02 for redemption and/or, at its
request, the Trustee in the name of and at the expense of the Company, shall
mail or cause to be mailed a notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to the holders of Notes so
to be redeemed as a whole or in part at their last addresses as the same appear
on the Register. Such mailing shall be by first class mail. The notice if mailed
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to
give such notice by mail or any defect in such notice by mail to the holder of
any Note designated for redemption as a whole or in part shall not affect the
validity of the proceedings for the redemption of any other Note. The Company
shall also use its reasonable best efforts to publish a notice of such
redemption at least once in each of Bloomberg Business News, Dow Jones News
(DJN) and Reuter Financial Report in the City of New York at least 30 and not
more than 60 days prior to the date fixed for redemption; provided, however,
that failure to publish this notice will not prevent the redemption of the Notes
by the Company pursuant to this Article 3.
Each such published notice and notice of redemption shall identify the
Notes to be redeemed (including "CUSIP" numbers) and shall specify the principal
amount at maturity of each Note to be redeemed, the date fixed for redemption,
the Redemption Price at which Notes are to be redeemed, the place or places of
payment, that payment will be made upon presentation and surrender of such
Notes, that interest and Original Issue Discount accrued to, but excluding, the
date fixed for redemption will be paid as specified in said notices, and that on
and after said date interest and Original Issue Discount thereon or on the
portions thereof to be redeemed will cease to accrue. Such notices shall also
state the current Conversion Rate and the date on which the right to convert
such Notes or portions thereof into Common Stock will expire. In case any Note
is to be redeemed in part only, the published notice and the notice of
redemption shall state the portion of the principal amount at maturity thereof
to be redeemed and shall state that on and after the date fixed for redemption,
upon surrender of such Note, a new Note or Notes in principal amount at maturity
equal to the unredeemed portion thereof will be issued.
On or before the redemption date specified in the published notice and the
notice of redemption given as provided in this Section, the Company will deposit
with the Trustee or with one or more paying agents (or, if the Company is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section __) an amount of money sufficient to redeem on the redemption date all
the Notes so called for redemption (other than those theretofore surrendered for
conversion into Common Stock) at the appropriate Redemption Price, together with
accrued interest to, but excluding, the date fixed for redemption. If any Note
called for redemption is converted pursuant hereto, any money deposited with the
Trustee or any paying agent or so segregated and held in trust for the
redemption of such Note shall be paid to the Company upon its request, or, if
then held by the Company shall be discharged from such trust. If fewer than all
the Notes are to be redeemed, the Company will give the Trustee written notice
not less than 45 days prior to the redemption date as to the aggregate principal
amount at maturity of Notes to be redeemed.
If fewer than all the Notes are to be redeemed, the Trustee shall select,
with written notice to the Company, by lot, pro rata or by another manner as the
Trustee shall deem equitable and fair, the Notes or portions thereof (in
multiples of $1,000 principal amount at maturity) to be redeemed. If any Note
selected for partial redemption is converted in part after such selection, the
converted portion of such Note shall be deemed (so far as may be) to be the
portion to be selected for redemption. The Notes (or portions thereof) so
selected shall be deemed duly selected for redemption for all purposes hereof,
notwithstanding that any such Note is converted as a whole or in part before the
mailing of the notice of redemption.
Upon any redemption of less than all Notes, the Company and the Trustee may
treat as outstanding any Notes surrendered for conversion during the period of
15 days next preceding the mailing of a notice of redemption and need not treat
as outstanding any Note authenticated and made available for delivery during
such period in exchange for the unconverted portion of any Note converted in
part during such period.
Section 3.03. Payment of Notes Called for Redemption. If notice of
redemption has been given as above provided, the Notes or portions of Notes with
respect to which such notice has been given shall, unless theretofore converted
into Common Stock pursuant to the terms hereof, become due and payable on the
date and at the place or places stated in such notices at the applicable
Redemption Price, together with interest accrued to, but excluding, the date
fixed for redemption, and on and after said date (unless the Company shall
default in the payment of such Notes at the Redemption Price, together with
interest accrued to, but excluding, said date). Original Issue Discount and
interest on the Notes or portions of Notes so called for redemption shall cease
to accrue and such Notes shall cease after the date fixed for redemption to be
convertible into Common Stock and, except as provided in Sections 8.05 and
13.04, to be entitled to any benefit or security under this Indenture, and the
holders thereof shall have no right in respect of such Notes except the right to
receive the Redemption Price thereof and unpaid interest to, but excluding, the
date fixed for redemption. On presentation and surrender of such Notes at a
place of payment in said notices specified, the said Notes or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
Redemption Price, together with interest accrued thereon to, but excluding, the
date fixed for redemption; provided that any semi-annual payment of interest
becoming due on the date fixed for redemption shall be payable to the holders of
such Notes registered as such on the relevant record date subject to the terms
and provisions of Section 2.03 hereof.
Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount at maturity equal to the
unredeemed portion of the Note so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any Notes or
mail or publish any notice of optional redemption during the continuance of a
default in payment of principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price
or interest, if any, of which the Trustee has actual knowledge of in respect of
the Notes or of any Event of Default. If any Note called for redemption shall
not be so paid upon surrender thereof for redemption, the Redemption Price and,
to the extent legally permitted, interest, if any, in respect thereof shall,
until paid or duly provided for, bear interest from the date fixed for
redemption at the rate borne by the Note (giving effect to accrual of Original
Issue Discount) and such Note shall remain convertible into Common Stock until
the Redemption Price shall have been paid or duly provided for.
Section 3.04. No Sinking Fund. The Notes shall not be entitled to the
benefit of any sinking fund.
Section 3.05. Conversion Arrangement on Call for Redemption. In connection
with any redemption of Notes, the Company may arrange for the purchase and
conversion of any Notes by an agreement with one or more investment bankers or
other purchasers to purchase such Notes by paying to the Trustee in trust for
the Noteholders, on or before the close of business on the date fixed for
redemption, an amount not less than the applicable Redemption Price, together
with interest accrued to, but excluding, the date fixed for redemption, of such
Notes. Notwithstanding anything to the contrary contained in this Article 3, the
obligation of the Company to pay the Redemption Price of such Notes, together
with interest accrued to, but excluding, the date fixed for redemption, shall be
deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into, a copy of which will be
filed with the Trustee 5 days prior to the date fixed for redemption, any Notes
not duly surrendered for conversion by the holders thereof may, at the option of
the Company, 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 15) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the date fixed for redemption,
subject to payment of the above amount as aforesaid. At the direction of the
Company, the Trustee shall hold and dispose of any such amount paid to it in the
same manner as it would monies deposited with it by the Company for the
redemption of Notes. Without the Trustee's prior written consent, no arrangement
between the Company and such purchasers for the purchase and conversion of any
Notes shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee 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 Notes between the
Company and such purchasers to which the Trustee has not consented in writing,
including the costs and expenses incurred by the Trustee 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.
ARTICLE IV
SUBORDINATION
Section 4.01. Securities Subordinated to Senior Debt. The Company covenants
and agrees, and each holder of a Note, by his acceptance thereof, likewise
covenants and agrees, that, to the extent and in the manner hereinafter set
forth in this Article (subject to the provisions of Article 13), the payment of
the principal of and premium, if any, and interest on each and all of the Notes
are hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Debt.
Section 4.02. Payment over of Proceeds upon Dissolution, Etc. In the event
of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, such as, or to its
assets, or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such event
specified in (a), (b) or (c) above (each such event, if any, a "Proceeding") the
holders of Senior Debt shall be entitled to receive payment in full of all
amounts due or to become due on or in respect of all Senior Debt, or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the holders of the
Notes are entitled to receive any payment or distribution of any kind or
character, whether in cash, property or securities, on account of principal of
or premium, if any, or interest on the Notes or on account of any purchase or
other acquisition of Notes by the Company, or any subsidiary of the Company (all
such payments, distributions, purchases and acquisitions herein referred to,
individually and collectively, as a "Notes Payment"), and to that end the
holders of all Senior Debt shall be entitled to receive, for application to the
payment thereof, any Notes Payment which may be payable or deliverable in
respect of the Notes in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the holder of any Note shall have received any Notes
Payment before all Senior Debt is paid in full or payment thereof provided for
in cash or cash equivalents or otherwise in a manner satisfactory to the holders
of Senior Debt, and if such fact shall, at or prior to the time of such Notes
Payment, have been made known to the Trustee or, as the case may be, such
holder, then and in such event such Notes Payment shall be paid over or
delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of
assets of the Company for application to the payment of all Senior Debt
remaining unpaid, to the extent necessary to pay all Senior Debt in full, after
giving effect to any concurrent payment or distribution to or for the holders of
Senior Debt.
For purposes of this Article only, the words "any payment or distribution
of any kind or character, whether in cash, property or securities" shall not be
deemed to include a payment or distribution of stock or securities of the
Company provided for by a plan of reorganization or readjustment authorized by
an order or decree of a court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment which stock or
securities are subordinated in right of payment to all then outstanding Senior
Debt to substantially the same extent as the Notes are so subordinated as
provided in this Article. The consolidation of the Company with, or the merger
of the Company into, another Person or the liquidation or dissolution of the
Company following the conveyance, transfer, sale or lease of all or
substantially all of its properties and assets to another Person upon the terms
and conditions set forth in Article 12 shall not be deemed a Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance,
transfer, sale or lease such properties and assets, as the case may be, shall,
as a part of such consolidation, merger, conveyance, transfer, sale or lease
comply with the conditions set forth in Article 12.
Section 4.03. No Payment When Senior Debt in Default. In the event that any
Notes are declared due and payable before their maturity, then and in such event
the holders of the Senior Debt outstanding at the time such Notes so become due
and payable shall be entitled to receive payment in full of all amounts due or
to become due on or in respect of all Senior Debt, or provision shall be made
for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of such Senior Debt, before the holders of the Notes
are entitled to receive any Notes Payment.
In the event and during the continuation of any default in the payment of
principal or of premium, if any, or interest on any Senior Debt beyond any
applicable grace period with respect thereto, or in the event that any event of
default with respect to any Senior Debt shall have occurred and be continuing
permitting the holders of such Senior Debt (or a trustee, or other
representative on behalf of the holders thereof) to declare such Senior Debt due
and payable prior to the date on which it would otherwise have become due and
payable, unless and until such event of default shall have been cured or waived
or shall have ceased to exist and such acceleration shall have been rescinded or
annulled, or in the event any judicial proceeding shall be pending with respect
to any such default in payment or event of default, then no Notes Payment shall
be made.
In the event that, notwithstanding the foregoing, the Company shall make
any Notes Payment to the Trustee or any holder prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of
such Notes Payment, have been made known to the Trustee or, as the case may be,
such holder, then and in such event such Notes Payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any Notes Payment with
respect to which Section 4.02 would be applicable.
Section 4.04. Payment Permitted If No Default. Nothing contained in this
Article or elsewhere in this Indenture or in any of the Notes shall prevent (a)
the Company, at any time except during the pendency of any Proceeding referred
to in Section 4.02 or under the conditions described in Section 4.03, from
making Notes Payments, or (b) the application by the Trustee of any money
deposited with it hereunder to Notes Payments or the retention of such Notes
Payment by the holders, if at the time of such application by the Trustee, it
did not have actual knowledge that such Notes Payment would have been prohibited
by the provisions of this Article.
Section 4.05. Subrogation to Rights of Holders of Senior Debt. Subject to
the payment in full of all amounts due or to become due on or in respect of
Senior Debt, or the provision for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, the holders of
the Notes shall be subrogated to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of and premium, if any, and
interest on the Notes shall be paid in full. For purposes of such subrogation,
no payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the holders of the Notes or the Trustee would be
entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to the holders of Senior Debt by
holders of the Notes or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Debt and the holders of the Notes, be deemed to be
a payment or distribution by the Company to or on account of the Senior Debt.
Section 4.06. Provisions Solely to Define Relative Rights. The provisions
of this Article are and are intended solely for the purpose of defining the
relative rights of the holders on the one hand and the holders of Senior Debt on
the other hand. Nothing contained in this Article or elsewhere in this Indenture
or in the Notes is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Debt and the holders of the Notes, the
obligation of the Company, which is absolute and unconditional (and which,
subject to the rights under this Article of the holders of Senior Debt, is
intended to rank equally with all other general obligations of the Company), to
pay to the holders of the Notes the principal of and premium, if any, and
interest on the Notes as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the holders of the Notes and creditors of the Company other than the
holders of Senior Debt; or (c) prevent the Trustee or the holder of any Note
from exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such holder.
Section 4.07. Trustee to Effectuate Subordination. Each holder of a Note by
his acceptance thereof authorizes and directs the Trustee on his behalf to take
such action as may be necessary or appropriate to effectuate the subordination
provided in this Article and appoints the Trustee his attorney-in-fact for any
and all such purposes.
Section 4.08. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Company or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Company with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph, the
holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the holders of the Notes, without
incurring responsibility to the holders of the Notes and without impairing or
releasing the subordination provided in this Article or the obligations
hereunder of the holders of the Notes to the holders of Senior Debt, do any one
or more of the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Debt, or otherwise
amend or supplement in any manner Senior Debt or any instrument evidencing the
same or any agreement under which Senior Debt is outstanding; (ii) sell,
exchange, release or otherwise deal with any property pledged, mortgaged or
otherwise securing Senior Debt; (iii) release any Person liable in any manner
for the collection of Senior Debt; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 4.09. Notice to Trustee. The Company shall give prompt written
notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Notes.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Notes, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Company or a holder of
Senior Debt or from any trustee therefor or representative thereof; and, prior
to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 8.01, shall be entitled in all respects to assume that no
such facts exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section at least three Business Days prior to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of and
premium, if any, or interest on any Note), then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within three Business Days prior to such date.
Subject to the provisions of Section 8.01, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt (or a trustee therefor or representative thereof)
to establish that such notice has been given by a holder of Senior Debt (or a
trustee therefor or representative thereof). In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such Person, the extent to which such Person is entitled
to participate in such payment or distribution and any other facts pertinent to
the rights of such Person under this Article, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the rights of such Person to receive such payment.
Section 4.10. Reliance on Judicial Order or Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company referred to in
this Article, the Trustee, subject to the provisions of Section 8.01, and the
holders of the Notes shall be entitled to rely upon any order or decree entered
by any court of competent jurisdiction in which such Proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the holders of
Notes, for the purpose of ascertaining the Persons entitled to participate in
such payment or distribution, the holders of the Senior Debt and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article.
Section 4.11. Trustee Not Fiduciary for Holders of Senior Debt. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and
shall not be liable to any such holders if it shall in good faith mistakenly pay
over or distribute to holders of Notes or to the Company or to any other Person
cash, property or securities to which any holders of Senior Debt shall be
entitled by virtue of this Article or otherwise. The Trustee shall not be
charged with knowledge of the existence of Senior Debt or of any facts that
would prohibit any payment hereunder unless a Responsible Officer of the Trustee
shall have received notice to that effect at the address of the Trustee set
forth in Section 17.04. With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Debt shall be read into this
Indenture against the Trustee.
Section 4.12. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights. The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.06.
Section 4.13. Article Applicable to Paying Agents. In case at any time any
paying agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article shall in
such case (unless the context otherwise requires) be construed as extending to
and including such paying agent within its meaning as fully for all intents and
purposes as if such paying agent were named in this Article in addition to or in
place of the Trustee; provided, however, that Sections 4.09 and 4.12 shall not
apply to the Company or any Affiliate of the Company if it or such Affiliate
acts as paying agent.
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price and interest, if any, in
respect of each of the Notes at the places, at the respective times and in the
manner provided herein and in the Notes. Each installment of interest on the
Notes may, at the option of the Company, be paid by mailing checks for the
interest payable to or upon the written order of the holders of Notes entitled
thereto as they shall appear on the Register or by wire transfer in immediately
available funds to an account maintained by such holder in the United States;
provided that with respect to any holder of Notes with an aggregate principal
amount at maturity equal to or in excess of $10 million, at the request of such
holder in writing the Company shall pay interest on such holder's Notes by wire
transfer in immediately available funds.
Section 5.02. Offices for Notices and Payments, Etc. So long as any of the
Notes remain outstanding, the Company will maintain in the Borough of Manhattan,
The City of New York, an office or agency where the Notes may be presented for
payment, and an office or agency where the Notes may be presented for
registration of transfer and for exchange and conversion as provided for in this
Indenture and an office or agency where notices and demands to or upon the
Company in respect of the Notes or of this Indenture may be served. The Company
will give to the Trustee written notice of the location of each such office or
agency and of any change of location thereof. If the Company shall fail to
maintain any such office or agency or shall fail to give such notice of the
location or of any change in the location thereof, presentations and demands may
be made and notices may be served at the principal office of the Trustee and the
Company hereby appoints the Trustee at the principal office of the Trustee as
its agent to receive all such presentations, demands and notices.
Section 5.03. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 8.09, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 5.04. Provision as to Paying Agent. (a) If the Company shall
appoint a paying agent other than the Trustee, it will cause such paying agent
to execute and deliver to the Trustee an instrument in which such agent shall
agree with the Trustee, subject to the provisions of this Section 5.04:
(1) that it will hold all sums held by it as such agent for the
payment of the principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price or
interest, if any, in respect of the Notes (whether such sums have been paid
to it by the Company or by any other obligor on the Notes) in trust for the
benefit of the holders of the Notes;
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Notes) to make any payment of the principal
amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price or interest, if any,
in respect of the Notes when the same shall be due and payable; and
(3) that at any time during the continuance of an Event of Default,
upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.
The Company shall, on or before each due date of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price or interest, if any, in respect of the
Notes, deposit with the paying agent a sum sufficient to pay such amounts so
becoming due, and (unless such paying agent is the Trustee) the Company will
promptly notify the Trustee of any failure to take such action.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price or
interest, if any, in respect of the Notes, set aside, segregate and hold in
trust for the benefit of the holders of the Notes a sum sufficient to pay such
amounts so becoming due and will notify the Trustee in writing of any failure to
take such action and of any failure by the Company (or by any other obligor
under the Notes) to make any payment of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price or interest, if any, in respect of the Notes when the same
shall become due and payable.
(c) Anything in this Section 5.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any paying agent hereunder
as required by this Section 5.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any paying agent
to the Trustee, the Company or such paying agent shall be released from all
further liability with respect to such money.
(d) Anything in this Section 5.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.04 is subject to
Sections 13.03 and 13.04.
Section 5.05. Reports by the Company. The Company shall file with the
Trustee and the Commission, and transmit to Holders, such information, documents
and other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission. 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).
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 6.01. Noteholders' Lists. The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee, semiannually, not more
than 15 days after each May 18 and November 17 in each year beginning with
November 17, 1999, and at such other times as the Trustee may request in
writing, within 30 days after receipt by the Company of any such request, a list
in such form as the Trustee may reasonably require of the names and addresses of
the holders of Notes as of a date not more than 15 days prior to the time such
information is furnished, except that no such list need be furnished so long as
the Trustee is acting as Note registrar.
Section 6.02. Preservation of Lists. The Trustee shall preserve, in as
current a form as is reasonably practicable, all information as to the names and
addresses of the holders of Notes contained in the most recent list furnished to
it as provided in Section 6.01 or maintained by the Trustee in its capacity as
Note registrar, if so acting. The Trustee may destroy any list furnished to it
as provided in Section 6.01 upon receipt of a new list so furnished.
If the Trustee shall be required by law to disclose any information
contained in any list of Noteholders maintained by it, then each and every
holder of the Notes, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any paying agent
nor the Note registrar shall be held accountable by reason of the disclosure of
any such information, regardless of the source from which such information was
derived.
Section 6.03. Reports by the Trustee. (a) On July 15, 2000, and on or
before July 15 in every year thereafter, so long as any Notes are outstanding
hereunder, the Trustee shall transmit to the Noteholders and the Company, as
hereinafter in this Section 6.03 provided, a brief report dated as of the
preceding May 18 with respect to:
(1) its eligibility under Section 8.08, or in lieu thereof, if to the
best of its knowledge it has continued to be eligible under such Section, a
written statement to such effect; and
(2) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Notes, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance
with the provisions of Section 7.08.
(b) Reports pursuant to this Section 6.03 shall be transmitted by mail to
all holders of Notes as the names and addresses of such holders appear upon the
registry books of the Company at the expense of the Company.
Section 6.04. Statement as to Compliance. The Company will deliver to the
Trustee annually, commencing July 15, 2000, a certificate, from its principal
executive officer, principal financial officer or principal accounting officer,
stating whether or not to the best knowledge of the signer thereof the Company
is in compliance (without regard to periods of grace or notice requirements)
with all conditions and covenants under this Indenture, and if the Company shall
not be in compliance, specifying such non-compliance, and the nature and status
thereof of which such signer may have knowledge.
Section 6.05. Statement by Officers as to Default. The Company shall
deliver to the Trustee, as soon as possible and in any event within 5 days after
the Company becomes aware of the occurrence of any Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of such Event of
Default or default and the action which the Company proposes to take with
respect thereto.
Section 6.06. Calculation of Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of original issue discount (including daily rates
and accrual periods) accrued on Outstanding Notes as of the end of such year and
(ii) such other specific information relating to such original issue discount as
may then be relevant under the Internal Revenue Code of 1986, as amended from
time to time.
ARTICLE VII
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS IN THE EVENT OF DEFAULT
Section 7.01. Events of Default. In case one or more of the following
Events of Default (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body) shall have occurred and be
continuing:
(a) default in the payment of any installment of interest upon any of
the Notes as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, or Fundamental
Change Redemption Price in respect of any of the Notes as and when the same
shall become due and payable either at maturity, in connection with any
redemption by declaration or otherwise; or
(c) failure on the part of the Company duly to observe or perform any
of the covenants or agreements on the part of the Company in the Notes or
in this Indenture (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section specifically dealt
with) which failure continues for a period of 45 days after the date on
which written notice of such failure, requiring the Company to remedy the
same, shall have been given to the Company by the Trustee, or to the
Company and the Trustee by the holders of at least 25% in aggregate
principal amount at maturity of the Notes at the time outstanding; or
(d) the Company shall have commenced a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect
to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian, or other similar official of it or any
substantial part of its property, or shall have consented to any such
relief or to the appointment of or taking possession by any such official
in an involuntary case or other proceeding commenced against it, or shall
make a general assignment for the benefit of creditors, or shall admit in
writing of its inability to pay its debt generally; or
(e) the entry by a court having jurisdiction in the premises of (1) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under the Bankruptcy Code or any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (2) a decree
order adjudging the Company a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 60
consecutive days;
then and in each and every such case (other than an Event of Default described
in Section 7.01(d) or Section 7.01(e)), unless the sum of the Issue Price plus
accrued Original Issue Discount from the date of issue of the Notes shall have
already become due and payable, either the Trustee or the holders of not less
than 25% in aggregate principal amount at maturity of the Notes then outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Noteholders), may declare due and immediately payable the sum of the Issue Price
plus accrued Original Issue Discount from the date of issue of the Notes to the
date of declaration and the interest accrued thereon, and upon any such
declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Notes contained to the contrary
notwithstanding. This provision, however, is subject to the condition that if,
at any time after the Notes shall have been so declared due and payable, and
before any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all the Notes and principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, and Fundamental Change
Redemption Price in respect of any and all Notes which shall have become due
otherwise than by acceleration (with interest on overdue installments of
interest (to the extent that payment of such interest is enforceable under
applicable law) and on such principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price and Fundamental Change Redemption
Price at the rate borne by the Notes (giving effect to accrual of Original Issue
Discount), to the date of such payment or deposit) and amounts due to the
Trustee pursuant to Section 8.06, and if any and all defaults under this
Indenture, other than the nonpayment of principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and interest, if any, in respect of the Notes which shall have
become due by acceleration, shall have been cured or waived pursuant to Section
7.07 -- then and in every such case the holders of a majority in aggregate
principal amount at maturity of the Notes then outstanding, by written notice to
the Company and to the Trustee, may waive all defaults and rescind and annul
such declaration and its consequences; but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default, or shall
impair any right consequent thereon. If an Event of Default specified in Section
7.01(d) or Section 7.01(e) occurs with respect to the Company, the sum of the
Issue Price plus accrued Original Issue Discount from the date of issue of the
Notes to the date of declaration, and accrued interest on the Notes 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 Noteholder.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Company,
the holders of Notes, and the Trustee shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the Company, the holders of Notes, and the Trustee shall continue as though no
such proceeding had been taken.
Section 7.02. Payment of Notes on Default; Suit Therefor. The Company
covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of 30 days,
or (b) in case default shall be made in the payment of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price, or
Fundamental Change Redemption Price in respect of any of the Notes as and when
the same shall have become due and payable, whether at maturity of the Notes, in
connection with any redemption of a Note pursuant to Article 16, or in
connection with any redemption, by declaration or otherwise -- then, upon demand
of the Trustee, the Company will pay to the Trustee, for the benefit of the
holders of the Notes, the whole amount that then shall have become due and
payable on all such Notes for principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price,
or interest, or both, as the case may be, with interest upon the overdue
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price and Fundamental Change Redemption Price and (to the extent that
payment of such interest is enforceable under applicable law) upon the overdue
installments of interest at the rate borne by the Notes (giving effect to the
accrual of Original Issue Discount); and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including a reasonable compensation to the Trustee, its agents, attorneys and
counsel, and any expenses or liabilities incurred by the Trustee hereunder other
than through its negligence or bad faith. Until such demand by the Trustee, the
Company may pay principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price and
interest, if any, in respect of the Notes to the registered holders, whether or
not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid at the Company's
expense, and may prosecute any such action or proceeding to judgment or final
decree, and may enforce any such judgment or final decree against the Company or
any other obligor on the Notes and collect in the manner provided by law out of
the property of the Company or any other obligor on the Notes wherever situated
the monies adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under Title 11
of the United States Code, or any other applicable law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Company, the property of the Company or such other obligor, or in the case of
any other similar judicial proceedings relative to the Company or other obligor
upon the Notes, or to the creditors or property of the Company or such other
obligor, the Trustee shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and interest, if
any, owing and unpaid in respect of the Notes, and, in case of any judicial
proceedings, to 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 and of the
Noteholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property,
and to collect and receive any monies or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of any
amounts due the Trustee under Section 8.06; and any receiver, assignee or
trustee in bankruptcy or reorganization liquidator, custodian or similar
official is hereby authorized by each of the Noteholders to make such payments
to the Trustee, and, if the Trustee shall consent to the making of such payments
directly to the Noteholders, to pay to the Trustee any amount due it for
compensation, expenses, advances and disbursements including counsel fees and
expenses incurred by it up to the date of such distribution. To the extent that
such payment of reasonable compensation, expenses, advances and disbursements
out of the estate 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, monies, securities and other property which
the holders of the Notes 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 adopt on behalf of any Noteholder any plan of
reorganization or arrangement, affecting the Notes or the rights of any
Noteholder, or to authorize the Trustee to vote in respect of the claim of any
Noteholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Notes, may be enforced by the Trustee without the possession of any
of the Notes, or the production thereof on any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings involving
the interpretation of any provision of this Indenture to which the Trustee shall
be a party) the Trustee shall be held to represent all the holders of the Notes,
and it shall not be necessary to make any holders of the Notes parties to any
such proceedings.
Section 7.03. Application of Monies Collected by Trustee. Any monies
collected by the Trustee pursuant to this Article 7 shall be applied in the
order following, at the date or dates fixed by the Trustee for the distribution
of such monies, upon presentation of the several Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof if fully paid:
First: To the payment of costs and expenses of collection and reasonable
compensation to the Trustee, its agents, attorneys and counsel, and of all
other expenses and liabilities incurred, and all advances made, by the
Trustee except as a result of its negligence or bad faith;
Second: Subject to the provisions of Article 4, in case the principal of
the outstanding Notes shall not have become due and be unpaid, to the
payment of interest on the Notes in default in the order of the maturity of
the installments of such interest, with interest (to the extent that such
interest has been collected by the Trustee) upon the overdue installments
of interest at the rate borne by the Notes (giving effect to the accrual of
Original Issue Discount), such payments to be made ratably to the persons
entitled thereto;
Third: Subject to the provisions of Article 4, in case the principal amount
at maturity, Issue Price, accrued Original Issue Discount, Redemption Price
or Fundamental Change Redemption Price and interest, if any, in respect of
the outstanding Notes shall have become due, by declaration or otherwise,
and be unpaid to the payment of the whole amount then owing and unpaid upon
the Notes for principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price and
interest, if any, with interest on the overdue principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price
and Fundamental Change Redemption Price, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Notes (giving effect to the accrual of
Original Issue Discount); and in case such monies shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Notes, then to the
aggregate principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and
interest, if any, without preference or priority of principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price or
Fundamental Change Redemption Price over interest, or of interest over
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price or Fundamental Change Redemption Price or of any
installment of interest over any other installment of interest, or of any
Note over any other Note, ratably to the aggregate of such principal amount
at maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price and accrued and unpaid interest;
Fourth: Subject to the provisions of Article 4, to the payment of the
remainder, if any, to the Company or any other person lawfully entitled
thereto.
Section 7.04. Proceedings by Noteholder. No holder of any Note shall have
any right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of default and of the continuance thereof, as hereinbefore provided, and
unless also the holders of not less than 25% in aggregate principal amount at
maturity of the Notes then outstanding shall have made written request upon the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity, shall have neglected or refused to institute any
such action, suit or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 7.07; it being
understood and intended, and being expressly covenanted by the taker and holder
of every Note with every other taker and holder and the Trustee, that no one or
more holders of Notes shall have any right in any manner whatever by virtue of
or by availing of any provision of this Indenture to affect, disturb or
prejudice the rights of any other holder of Notes, or to obtain or seek to
obtain priority over or preference to any other such holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all holders of Notes (except as otherwise
provided herein). For the protection and enforcement of this Section 7.05, each
and every Noteholder and the Trustee shall be entitled to such relief as can be
given either at law or in equity.
Notwithstanding any other provisions of this Indenture and any provision of
any Note, however, the right of any holder of any Note to receive payment of the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price and accrued interest on
such Note, on or after the respective due dates expressed in such Note, or to
institute suit for the enforcement of any such payment on or after such
respective dates against the Company shall not be impaired or affected without
the consent of such holder.
Anything in this Indenture or the Notes to the contrary notwithstanding,
the holder of any Note, without the consent of either the Trustee or the holder
of any other Note, in his own behalf and for his own benefit may enforce, and
may institute and maintain any proceeding suitable to enforce, his rights of
conversion as provided herein.
Section 7.05. Proceedings by Trustee. In case of an Event of Default
hereunder the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
Section 7.06. Remedies Cumulative and Continuing. Except as provided in
Section 2.06, all powers and remedies given by this Article 74 to the Trustee or
to the Noteholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any thereof or of any other powers and remedies available
to the Trustee or the holders of the Notes, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any holder of any of the Notes to exercise any right or power accruing
upon any default occurring and continuing as aforesaid shall impair any such
right or power, or shall be construed to be a waiver of any such default or an
acquiescence therein; and, subject to the provisions of Section 7.04, every
power and remedy given by this Article 74 or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Noteholders.
Section 7.07. Direction of Proceedings and Waiver of Defaults by Majority
Noteholders. The holders of a majority in aggregate principal amount at maturity
of the Notes at the time outstanding determined in accordance with Section 9.04
shall have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; provided, however, that (subject to the
provisions of Section 8.01) the Trustee shall have the right to decline to
follow any such direction if the Trustee shall be advised by counsel that the
action or proceeding so directed may not lawfully be taken or if the Trustee in
good faith by its board of directors or executive committee, or a trust
committee of directors and/or Responsible Officers shall determine that the
action or proceedings so directed could involve the Trustee in personal
liability. Prior to any declaration accelerating the maturity of the Notes, the
holders of a majority in aggregate principal amount at maturity of the Notes at
the time outstanding may on behalf of the holders of all of the Notes waive any
past default or Event of Default hereunder and its consequences except (i) a
default in the payment of principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price
or interest, if any, in respect of the Notes, (ii) a failure by the Company to
convert any Notes into Common Stock or (iii) a default in respect of a covenant
or provision hereof which under Article 11 cannot be modified or amended without
the consent of the holders of all Notes then outstanding. Upon any such waiver
the Company, the Trustee and the holders of the Notes shall be restored to their
former positions and rights hereunder, respectively; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any
right consequent thereon. Whenever any default or Event of Default hereunder
shall have been waived as permitted by this Section 7.07, said default or Event
of Default shall for all purposes of the Notes and this Indenture be deemed to
have been cured and to be not continuing; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
Section 7.08. Notice of Defaults. The Trustee shall, within 90 days after
the occurrence of a default, mail to all Noteholders, as the names and addresses
of such holders appear upon the registry books of the Company, notice of all
defaults known to the Trustee, unless such defaults shall have been cured or
waived before the giving of such notice (the term "defaults" for the purpose of
this Section 7.08 being hereby defined to be the events specified in clauses
(a), (b), (c), (d) and (e) of Section 7.01, not including periods of grace, if
any, or the giving of any notice, or both provided for therein); and provided
that, except in the case of default in the payment of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price or interest, if any, in respect of any of
the Notes, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Noteholders.
Section 7.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided, that the provisions of this Section 7.09
shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Noteholder, or group of Noteholders, holding in the aggregate more than 10%
in aggregate principal amount at maturity of the Notes outstanding, or to any
suit instituted by any Noteholder for the enforcement of the payment of the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price and interest, if any, in
respect of any Note on or after the due date expressed in such Note or to any
suit for the enforcement of the right to convert any Note in accordance with the
provisions of Article 15.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.01. Duties and Responsibilities of Trustee. The Trustee, prior to
the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied covenant
or obligations shall be read into this Indenture against the Trustee. In case an
Event of Default has occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred:
(1) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but, in the case of any such
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine (but need not
confirm or investigate the accuracy of mathematical calculations or
facts stated therein) whether or not they conform to the requirements
of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the holders of not less than a majority in aggregate principal amount at
maturity of the Notes at the time outstanding determined as provided in
Section 9.04 relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture; and
(d) whether or not therein provided, every provision of this Indenture
relating to the conduct or affecting the liability of, or affording
protection to, the Trustee shall be subject to the provisions of this
Section.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
redemption of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 8.02. Reliance on Documents, Opinions, Etc. Except as otherwise
provided in Section 8.01,
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond,
debenture, coupon or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in
good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, 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, consent, order, approval, bond, debenture, coupon or other paper
or document unless requested in writing to do so by the holders of not less
than a majority in aggregate principal amount at maturity of the Notes then
outstanding; provided, however, that if the payment within a reasonable
time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of
the Trustee, not reasonably assured to the Trustee by the security afforded
to it by the terms of this Indenture, the Trustee may require reasonable
indemnity against such expense or liability as a condition to so
proceeding; the reasonable expenses of every such examination shall be paid
by the Company or, if paid by the Trustee or any predecessor Trustee, shall
be repaid by the Company upon demand; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due
care hereunder.
(h) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, conclusively rely upon an Officers' Certificate;
(i) 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.
(j) The Trustee shall not be charged with knowledge and shall not be
deemed to have notice of any default or Event of Default, except an Event
of Default under Section 7.01(a) or Section 7.01(b) in cases where the
Trustee is acting as paying agent, unless written notice thereof stating
that such notice is a "Notice of Default" shall have been given to a
Responsible Officer by the Company or a Noteholder or any agent of a
Noteholder; and, in the absence of such written notice, the Trustee may
conclusively assume that there is no default or Event of Default.
Section 8.03. No Responsibility for Recitals, Etc. The recitals contained
herein and in the Notes (except in the Trustee's certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and made
available for delivery by the Trustee in conformity with the provisions of this
Indenture.
Section 8.04. Trustee, Paying Agents, Conversion Agents or Registrar May
Own Notes. The Trustee, any paying agent, any conversion agent or Note
registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Note registrar.
Section 8.05. Monies to Be Held in Trust. Subject to the provisions of
Section 13.04 all monies received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received.
Money held by the Trustee in trust hereunder need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except to the
extent otherwise agreed in writing by the Company and the Trustee.
Section 8.06. Compensation and Expenses of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder in any capacity (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express
trust), and the Company will pay or reimburse the Trustee upon its request for
all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any of the provisions of this Indenture (including
the reasonable compensation and the expenses and disbursements of its counsel
and of all persons not regularly in its employ) except any such expense,
disbursement or advance as may arise from its negligence or bad faith. The
Company also covenants to indemnify the Trustee and any predecessor trustee to
the Trustee for, and to hold it harmless against, any and all loss, liability,
damage, claims or expense including taxes incurred without negligence or bad
faith on the part of the Trustee and arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim of liability in connection with the exercise
or performance of any of its permits and duties hereunder. The obligations of
the Company under this Section 8.06 to compensate or indemnify the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
be secured by a lien prior to that of the Notes upon all property and funds held
or collected by the Trustee as such, except funds held in trust for the benefit
of the holders of particular Notes. The obligation of the Company under this
Section shall survive the satisfaction and discharge of this Indenture.
Section 8.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee, and such Certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken or omitted by it under the provisions of this
Indenture upon the faith thereof.
Section 8.08. Eligibility of Trustee. The Trustee hereunder shall at all
times be a corporation organized and doing business under the laws of the United
States or any State or Territory thereof or of the District of Columbia
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least five million dollars, subject to supervision or
examination by Federal, State, Territorial or District of Columbia authority. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section 8.08, the combined capital and surplus of
such corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. In case at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 8.08, the Trustee shall resign immediately in the manner and with the
effect specified in Section 8.09.
Section 8.09. Resignation or Removal of Trustee. (a) The Trustee may at any
time resign by giving written notice of such resignation to the Company and by
mailing notice thereof to the holders of Notes at their addresses as they shall
appear on the Register. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation to the
Noteholders, the resigning Trustee may petition, at the expense of the Company,
any court of competent jurisdiction for the appointment of a successor trustee,
or any Noteholder who has been a bona fide holder of a Note or Notes for at
least six months may, subject to the provisions of Section 7.09, on behalf of
himself and all others similarly situated, petition any such court for the
appointment of a successor trustee. Such court may thereupon, after such notice,
if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.08 and shall fail to resign after written
request therefor by the Company or by any such Noteholder, or
(2) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of
its property shall be appointed, or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 7.09, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee
within 30 days after the giving of such notice of removal, the Trustee being
removed may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Notes of such series.
(c) The holders of a majority in aggregate principal amount at
maturity of the Notes at the time outstanding may at any time remove the
Trustee and nominate a successor trustee which shall be deemed appointed as
successor trustee unless within 10 days after notice to the Company of such
nomination the Company objects thereto, in which case the Trustee so
removed or any Noteholder, upon the terms and conditions and otherwise as
in subsection (a) of this Section 8.09 provided, may petition any court of
competent jurisdiction for an appointment of a successor trustee. If an
instrument of acceptance by a successor Trustee shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
removal, the Trustee being removed may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Notes of such series.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee to any of the provisions of this Section 8.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.10.
Section 8.10. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.09 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property or funds held or collected by such
trustee to secure any amounts then due it pursuant to the provisions of Section
8.06.
No successor trustee shall accept appointment as provided in this Section
8.10 unless at the time of such acceptance such successor trustee shall be
eligible under the provisions of Section 8.08.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.10, the Company and the former trustee shall mail notice of the
succession of such trustee hereunder to the holders of Notes at their addresses
as they shall appear on the registry books of the Company. If the Company fails
to mail such notice within 10 days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Company.
Section 8.11. Succession by Merger, Etc. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee, shall be the successor to
the Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 8.08 without the execution or filing of any paper or any
further act on the part of any of the parties hereto.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee, and make available for delivery
such Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Trustee appointed by such
successor trustee may authenticate such Notes either in the name of any
predecessor hereunder or in the name of the successor trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Notes or in this Indenture provided that the certificate of the Trustee shall
have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Notes in the name of
any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.01. Action by Noteholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount at maturity of the Notes may take any action (including the making of any
demand or request, the giving of any notice, consent or waiver or the taking of
any other action), the fact that at the time of taking any such action the
holders of such specified percentage have joined therein may be evidenced (a) by
any instrument or any number of instruments of similar tenor executed by
Noteholders in person or by agent or proxy appointed in writing, or (b) by the
record of the holders of Notes voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article
10, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Noteholders. Whenever the Company or the Trustee
solicits the taking of any action by the holders of the Notes, the Company or
the Trustee may fix in advance of such solicitation, a date as the record date
for determining holders entitled to take such action. The record date shall be
not more than 15 days prior to the date of commencement of solicitation of such
action.
Section 9.02. Proof of Execution by Noteholders. Subject to the provisions
of Sections 8.01, 8.02 and 10.05, proof of the execution of any instrument by a
Noteholder or his agent or proxy shall be sufficient if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The holding of Notes shall
be proved by the registry of such Notes or by a certificate of the Note
registrar.
The record of any Noteholders' meeting shall be proved in the manner
provided in Section 10.06.
Section 9.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any
paying agent, any conversion agent and any Note registrar may deem the person in
whose name such Note shall be registered upon the books of the Company to be,
and may treat him as, the absolute owner of such Note (whether or not such Note
shall be overdue and notwithstanding any notation of ownership or other writing
thereon) for the purpose of receiving payment of or on account of the principal
amount at maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price and interest, if any, in respect of
such Note, for conversion of such Note and for all other purposes; and neither
the Company nor the Trustee nor any paying agent nor any conversion agent nor
any Note registrar shall be affected by any notice to the contrary. All such
payments so made to any holder for the time being, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for monies payable upon any such Note.
Section 9.04. Company-Owned Notes Disregarded. In determining whether the
holders of the requisite aggregate principal amount at maturity of Notes have
concurred in any direction, consent, waiver or other action under this
Indenture, Notes which are owned by the Company or any other obligor on the
Notes or by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor on
the Notes shall be disregarded and deemed not to be outstanding for the purpose
of any such determination; provided that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, consent, waiver
or other action only Notes which a Responsible Officer knows are so owned shall
be so disregarded. Notes so owned which have been pledged in good faith may be
regarded as outstanding for the purposes of this Section 9.04 if the pledgee
shall establish to the satisfaction of the Trustee the pledgee's right to vote
such Notes and that the pledgee is not the Company, any other obligor on the
Notes or a person directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company or any such other obligor. In
the case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee. Upon request of
the Trustee, the Company shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Notes, if any, known by the Company to
be owned or held by or for the account of any of the above described persons;
and, subject to Section 8.01, the Trustee shall be entitled to accept such
Officers' Certificate as conclusive evidence of the facts therein set forth and
of the fact that all Notes not listed therein are outstanding for the purpose of
any such determinations.
Section 9.05. Revocation of Consents; Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
9.01, of the taking of any action by the holders of the percentage in aggregate
principal amount at maturity of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the evidence
to be included in the Notes the holders of which have consented to such action
may, by filing written notice with the Trustee at its Principal Office and upon
proof of holding as provided in Section 9.02, revoke such action so far as
concerns such Note. Except as aforesaid any such action taken by the holder of
any Note shall be conclusive and binding upon such holder and upon all future
holders and owners of such Note and of any Notes issued in exchange or
substitution therefor, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor.
ARTICLE X
NOTEHOLDERS' MEETINGS
Section 10.01. Purposes of Meetings. A meeting of Noteholders may be called
at any time and from time to time pursuant to the provisions of this Article 10
for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or to give any
directions to the Trustee, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to
be taken by Noteholders pursuant to any of the provisions of Article 7;
(2) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article 8;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.01(a); or
(4) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount at maturity of the
Notes under any other provision of this Indenture or under applicable law.
Section 10.02. Call of Meetings by Trustee. The Trustee shall, upon
receiving a written request pursuant to Section 10.03 and at the expense of the
Company in accordance with Section 8.06, call a meeting of Noteholders to take
any action specified in Section 10.01, to be held at such time and at such place
as the Trustee shall determine. Notice of every meeting of the Noteholders,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting and the establishment of any record
date pursuant to Section 9.01, shall be mailed to holders of Notes at their
addresses as they shall appear on the registry books of the Company. Such notice
shall also be mailed to the Company. Such notices shall be mailed not less than
20 nor more than 90 days prior to the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the holders of
all Notes then outstanding are present in person or by proxy or if notice is
waived before or after the meeting by the holders of all Notes outstanding, and
if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
Section 10.03. Call of Meetings by Company or Noteholders. In case at any
time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount at maturity of the Notes
then outstanding, shall have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within 20 days after receipt of such request, then the
Company or such Noteholders may determine the time and the place for such
meeting and may call such meeting to take any action authorized in Section
10.01, by mailing notice thereof as provided in Section 10.02.
Section 10.04. Qualification for Voting. To be entitled to vote at any
meeting of Noteholders a person shall (a) be a holder of one or more Notes or
(b) be a person appointed by an instrument in writing as proxy by a holder of
one or more Notes. The only persons who shall be entitled to be present or to
speak at any meeting of Noteholders shall be the persons entitled to vote at
such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 10.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may, but shall not be obligated to, make such reasonable
regulations as it may deem advisable for any meeting of Noteholders, in regard
to proof of the holding of Notes and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall think
fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 10.03, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in aggregate principal amount at maturity of the Notes represented at the
meeting and entitled to vote at the meeting.
Subject to the provisions of Section 9.04, at any meeting each Noteholder
or proxy shall be entitled to one vote for each $1,000 principal amount at
maturity of Notes held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Note challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Notes held by him or instruments in writing as aforesaid duly designating him as
the person to vote on behalf of other Noteholders. Any meeting of Noteholders
duly called pursuant to the provisions of Section 10.02 or 10.03 may be
adjourned from time to time by a majority of those present, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 10.06. Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the holders of Notes or of their representatives by proxy and
the aggregate principal amount at maturity of the Notes held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Noteholders shall be prepared
by the secretary of the meeting and there shall be attached to said record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more persons having knowledge of the facts setting
forth a copy of the notice of the meeting and showing that said notice was
mailed as provided in Section 10.02. The record shall show the aggregate
principal amount at maturity of the Notes voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
Section 10.07. No Delay of Rights by Meeting. Nothing contained in this
Article 10 shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or rights conferred upon or reserved to the Trustee or to the Noteholders under
any of the provisions of this Indenture or of the Notes.
ARTICLE XI
SUPPLEMENTAL INDENTURES
Section 11.01. Supplemental Indentures Without Consent of Noteholders. The
Company, when authorized by the resolutions of the Board of Directors, and the
Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to make provision with respect to the conversion rights of the
holders of Notes pursuant to the requirements of Section 15.06;
(b) subject to Article 4, to convey, transfer, assign, mortgage or
pledge to the Trustee as security for the Notes, any property or assets;
(c) to evidence the succession of another corporation to the Company,
or successive successions, and the assumption by the successor corporation
of the covenants, agreements and obligations of the Company pursuant to
Article 12 hereof;
(d) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors and the Trustee shall
consider to be for the benefit of the holders of Notes, and to make the
occurrence, or the occurrence and continuance, of a default in any such
additional covenants, restrictions or conditions a default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction or condition such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(e) to provide for the issuance under this Indenture of Notes in
coupon form (including Notes registrable as to principal only) and to
provide for exchangeability of such Notes with the Notes issued hereunder
in fully registered form and to make all appropriate changes for such
purpose;
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any
supplemental indenture, or to make such other provisions in regard to
matters or questions arising under this Indenture which shall not adversely
affect the interests of the holders of the Notes in any material respect;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes; or
(h) to modify, eliminate or add to the provisions of this Indenture to
such extent as shall be necessary to effect the qualification of this
Indenture under the Trust Indenture Act, or under any similar federal
statute hereafter enacted.
The Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Notes at the time outstanding, notwithstanding any of the
provisions of Section 11.02.
Section 11.02. Supplemental Indentures with Consent of Noteholders. With
the consent (evidenced as provided in Article 9) of the holders of not less than
a majority in aggregate principal amount at maturity of the Notes at the time
outstanding, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may from time to time and at any time enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the holders of the Notes; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any Note, or
reduce the rate or extend the time of payment of interest thereon, change the
rate of accrual or extend the time of payment in connection with Original Issue
Discount, or reduce the principal amount at maturity thereof, or reduce any
amount payable on redemption thereof or change the obligation of the Company to
make redemption of any Note pursuant to Article 16, or impair or affect the
right of any Noteholder to institute suit for the payment thereof, or make the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price or interest, if any, in
respect thereof payable in any coin or currency other than that provided in the
Notes, or modify the provisions of this Indenture with respect to the
subordination of the Notes in a manner adverse to the Noteholders in any
material respect, or impair the right to convert the Notes into Common Stock
subject to the terms set forth herein, including Section 15.06, without the
consent of the holder of each Note so affected, or (ii) reduce the aforesaid
percentage of Notes, the holders of which are required to consent to any such
supplemental indenture, without the consent of the holders of all Notes then
outstanding.
Upon the request of the Company, accompanied by a copy of the resolutions
of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Noteholders as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Noteholders under this
Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 11.03. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article 11, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the holders
of Notes shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
Section 11.04. Notation on Notes. Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of this
Article 11 may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and made available for delivery in exchange for the
Notes then outstanding, upon surrender of such Notes then outstanding.
Section 11.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished to the Trustee. The Trustee, subject to the provisions of Sections
8.01 and 8.02, shall be entitled to receive and shall be fully protected in
relying upon an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any supplemental indenture executed pursuant hereto complies with
the requirements of this Indenture.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.01. Company May Consolidate, Etc., on Certain Terms. Subject to
the provisions of Section 12.02, nothing contained in this Indenture or in any
of the Notes shall prevent any consolidation or merger of the Company with or
into any other corporation or corporations (whether or not affiliated with the
Company), or successive consolidations or mergers in which the Company or its
successor or successors shall be a party or parties, or shall prevent any sale,
conveyance or lease (or successive sales, conveyances or leases) of all or
substantially all of the property of the Company, to any other corporation
(whether or not affiliated with the Company) authorized to acquire and operate
the same and which shall be organized under the laws of a State of the United
States or the District of Columbia; provided, however, and the Company hereby
covenants and agrees, that upon any such consolidation, merger, sale, conveyance
or lease, the due and punctual payment of the principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
Change Redemption Price and interest, if any, in respect of all of the Notes,
according to their tenor, and the due and punctual performance and observance of
all of the covenants and conditions of this Indenture to be performed by the
Company, shall be expressly assumed, by either an Officers' Certificate and an
Opinion of Counsel or a supplemental indenture that is, in either case,
satisfactory in form to the Trustee, executed and delivered to the Trustee by
the corporation (if other than the Company) formed by such consolidation, or
into which the Company shall have been merged, or by the corporation which shall
have acquired or leased such property, and any such supplemental indenture shall
provide for the applicable conversion rights set forth in Section 15.06.
Section 12.02. Successor Corporation to Be Substituted. In case of any such
consolidation, merger, sale, conveyance or lease and upon the assumption by the
successor corporation, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and interest, if
any, in respect of all of the Notes and the due and punctual performance of all
of the covenants and conditions of this Indenture to be performed by the
Company, such successor corporation shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part. Such successor corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of The Interpublic Group of
Companies, Inc. any or all of the Notes issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor corporation instead of the Company and subject
to all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Notes which previously shall
have been signed and delivered by the officers of the Company to the Trustee for
authentication, and any Notes which such successor corporation thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the Notes
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Notes theretofore or thereafter issued in accordance with the
terms of this Indenture as though all of such Notes had been issued at the date
of the execution hereof. In the event of any such consolidation, merger, sale,
conveyance or lease, the person named as the "Company" in the first paragraph of
this Indenture or any successor which shall thereafter have become such in the
manner prescribed in this Article 12 may be dissolved, wound up and liquidated
at any time thereafter and such person shall be released from its liabilities as
obligor and maker of the Notes and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
Section 12.03. Opinion of Counsel to Be Given Trustee. The Trustee, subject
to Sections 8.01 and 8.02, shall receive an Officers' Certificate and an Opinion
of Counsel as conclusive evidence that any such consolidation, merger, sale,
conveyance or lease and any such assumption complies with the provisions of this
Article 12.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.01. Discharge of Indenture. When (a) the Company shall deliver
to the Trustee for cancellation all Notes theretofore authenticated (other than
any Notes which shall have been destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
and not theretofore canceled, or (b) all the Notes not theretofore canceled or
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, cash and U.S. Government Obligations sufficient to pay at
maturity or upon redemption all of the Notes (other than any Notes which shall
have been mutilated, destroyed, lost or stolen and in lieu of or in substitution
for which other Notes shall have been authenticated and made available for
delivery) not theretofore canceled or delivered to the Trustee for cancellation,
including principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and interest, if
any, due or to become due to such date of maturity or redemption date, as the
case may be, and if in either case the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company, then this Indenture shall
cease to be of further effect (except as to (i) remaining rights of registration
of transfer, substitution and exchange and conversion of Notes, (ii) rights
hereunder of Noteholders to receive payments of principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
Change Redemption Price and interest, if any, in respect of the Notes and the
other rights, duties and obligations of Noteholders, as beneficiaries hereof
with respect to the amounts, if any, so deposited with the Trustee and (iii) the
rights, obligations and immunities of the Trustee hereunder), and the Trustee,
on demand of the Company accompanied by an Officers' Certificate and an Opinion
of Counsel as required by Section 17.06 and at the cost and expense of the
Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture; the Company, however, hereby agreeing to reimburse
the Trustee for any costs or expenses thereafter reasonably and properly
incurred by the Trustee and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Notes.
Section 13.02. Deposited Monies to Be Held in Trust by Trustee. Subject to
Section 13.04, all monies deposited with the Trustee pursuant to Section 13.01
shall be held in trust and applied by it to the payment, either directly or
through any paying agent (including the Company if acting as its own paying
agent), to the holders of the particular Notes for the payment or redemption of
which such monies have been deposited with the Trustee, of all sums due and to
become due thereon for principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price
and interest, if any.
Section 13.03. Paying Agent to Repay Monies Held. Upon the satisfaction and
discharge of this Indenture, all monies then held by any paying agent of the
Notes (other than the Trustee) shall, upon written demand of the Company, be
repaid to it or paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such monies.
Section 13.04. Return of Unclaimed Monies. Any monies deposited with or
paid to the Trustee for payment of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and interest, if any, in respect of Notes and not applied but
remaining unclaimed by the holders of Notes for two years after the date upon
which such amounts shall have become due and payable, shall be repaid to the
Company by the Trustee on written demand and all liability of the Trustee shall
thereupon cease with respect to such monies; and the holder of any of the Notes
shall thereafter look only to the Company for any payment which such holder may
be entitled to collect.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.01. Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price, Fundamental Change Redemption
Price and interest, if any, in respect of any Note, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in any
supplemental indenture, or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, officer or director, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Notes.
ARTICLE XV
CONVERSION OF NOTES
Section 15.01. Right to Convert. Subject to and upon compliance with the
provisions of this Indenture, the holder of any Note shall have the right, at
his option, at any time prior to the close of business on June 1, 2006 (except
that, with respect to any Note or portion of a Note which shall be called for
redemption such right shall terminate, except as provided in Section 15.02 or
Section 3.05, at the close of business, New York City time, on the Business Day
next preceding the date fixed for redemption of such Note or portion of a Note
unless the Company shall default in payment due upon redemption or redemption
thereof) to convert the principal amount at maturity of any such Note, or any
portion of such principal amount at maturity which is $1,000 or a multiple
thereof, into that number of fully paid and non-assessable shares of Common
Stock (as such shares shall then be constituted) obtained by dividing the
principal amount at maturity of the Note or portion thereof surrendered for
conversion by $1,000 and multiplying the result so obtained by the Conversion
Rate in effect at such time, by surrender of the Note so to be converted in
whole or in part in the manner provided in Section 15.02. A Note in respect of
which a holder is exercising his option to require redemption upon a Fundamental
Change pursuant to Section 16.01 may be converted only if such holder withdraws
his election to exercise in accordance with Section 16.01. A holder of Notes is
not entitled to any rights of a holder of Common Stock until such holder has
converted his Notes to Common Stock, and only to the extent such Notes are
deemed to have been converted to Common Stock under this Article 15.
Section 15.02. Exercise of Conversion Privilege; Issuance of Common Stock
on Conversion; No Adjustment for Interest or Dividends. In order to exercise the
conversion privilege with respect to any Note in certificated form, the holder
of any such Note to be converted in whole or in part shall surrender such Note,
with the conversion notice duly completed and executed, at an office or agency
maintained by the Company pursuant to Section 5.02, accompanied by the funds, if
any, required by the penultimate paragraph of this Section 15.02, and shall give
written notice of conversion in the form provided on the Notes (or such other
notice which is acceptable to the Company) to the Company at such office or
agency that the holder elects to convert such Note or the portion thereof
specified in said notice. Such notice shall also state the name or names (with
address) in which the certificate or certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued, and shall be
accompanied by transfer taxes, if required pursuant to Section 15.07. Each Note
surrendered for conversion shall, unless the shares issuable on conversion are
to be issued in the same name as the registration of such Note, be duly endorsed
by, or be accompanied by instruments of transfer in form satisfactory to the
Company duly executed by, the holder or his duly authorized attorney.
In order to exercise the conversion privilege with respect to any interest
in a Note in global form, the holder must complete the appropriate instruction
form for conversion pursuant to the Depositary's book-entry conversion program,
deliver by book-entry delivery an interest in such Note in global form, furnish
appropriate endorsements and transfer documents if required by the Company and
the Trustee or conversion agent, and pay the funds, if any, required by this
Section 15.02 and any transfer taxes if required.
As promptly as practicable after the surrender of such Note and the receipt
of such notice and funds, if any, as aforesaid, the Company shall issue and
shall deliver at such office or agency to such holder, or on his written order,
a certificate or certificates for the number of full shares issuable upon the
conversion of such Note or portion thereof in accordance with the provisions of
this Article and a check or cash in respect of any fractional interest in
respect of a share of Common Stock arising upon such conversion, as provided in
Section 15.03. In case any Note of a denomination greater than $1,000 principal
amount at maturity shall be surrendered for partial conversion, and subject to
Section 2.03, the Company shall execute and the Trustee shall authenticate and
make available for delivery to or upon the written order of the holder of the
Note so surrendered, without charge to him, a new Note or Notes in authorized
denominations in principal amount at maturity equal to the unconverted portion
of the surrendered Note.
Each conversion shall be deemed to have been effected on the date on which
such Note shall have been surrendered (accompanied by the funds, if any,
required by the penultimate paragraph of this Section) and such notice shall
have been received by the Company, as aforesaid, and the person in whose name
any certificate or certificates for shares of Common Stock shall be issuable
upon such conversion shall be deemed to have become on said date the holder of
record of the shares represented thereby; provided, however, that any such
surrender on any date when the stock transfer books of the Company shall be
closed shall constitute the person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next succeeding day
on which such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the date upon which such Note shall have been
surrendered.
Except as described in this Section, holders of the Notes will not be
entitled to any payment or adjustment on account of accrued Original Issue
Discount or accrued and unpaid interest upon conversion of the Notes. The
Company's delivery of the fixed number of shares of Common Stock into which the
Notes are convertible will be deemed to satisfy the Company's obligation to pay
the principal amount at maturity of the Notes and all accrued interest and
Original Issue Discount that has not previously been (or is not simultaneously
being) paid. The Common Stock is treated as issued first in payment of accrued
interest and Original Issue Discount and then in payment or principal.
Any Note or portion thereof surrendered for conversion during the period
from, but excluding, a record date for any interest payment date to, but
excluding, such interest payment date shall (unless such Note or portion thereof
being converted shall have been called for redemption on a date which occurs
during such period) be accompanied by payment, in New York Clearing House funds
of an amount equal to the interest otherwise payable on such interest payment
date on the principal amount at maturity being converted; provided, however,
that no such payment need be made if there shall exist at the time of conversion
a default in the payment of interest on the Notes. Except as provided above in
this Section, no adjustment shall be made for Original Issue Discount or
interest accrued on any Note converted or for dividends on any shares issued
upon the conversion of such Note as provided in this Article.
Upon the conversion of an interest in a Note in global form, the Trustee or
the custodian at the direction of the Trustee (or other conversion agent
appointed by the Company), shall make a notation on such Note in global form as
to the reduction in the principal amount at maturity represented thereby. The
Company shall notify the Trustee in writing of any conversions of Notes effected
through any conversion agent other than the Trustee. Each share of Common Stock
issued upon conversion of Notes pursuant to this Article 15 shall be entitled to
receive the appropriate number of preferred share purchase rights (the
"Rights"), if any, and the certificates representing the Common Stock issued
upon such purchase shall bear such legends, if any, in each case as provided by
and subject to the terms of the Second Amended and Restated Rights Agreement
(the "Rights Agreement") dated as of August 1, 1989, between the Company and The
First Chicago Trust Company of New York, as Rights Agent, as in effect at the
time of such purchase.
Section 15.03. Cash Payments in Lieu of Fractional Shares. No fractional
shares of Common Stock or scrip representing fractional shares shall be issued
upon conversion of Notes. If more than one Note shall be surrendered for
conversion at one time by the same holder, the number of full shares which shall
be issuable upon conversion shall be computed on the basis of the aggregate
principal amount at maturity of the Notes (or specified portions thereof to the
extent permitted hereby) so surrendered. If any fractional share of stock would
be otherwise issuable upon the conversion of any Note or Notes, the Company
shall, in lieu of such fractional share, make an adjustment and payment therefor
in cash at the current market value thereof. For these purposes, the current
market value of a share of Common Stock shall be the last reported sale price on
the first day (which is not a Legal Holiday as defined in Section 17.07)
immediately preceding the day on which the Notes (or specified portions thereof)
are deemed to have been converted and such last reported sale price shall be
determined as provided in subsection (g) of Section 15.05.
Section 15.04. Conversion Rate. The Conversion Rate shall be as specified
in the form of Note herein above set forth, subject to adjustment as provided in
this Article 15.
Section 15.05. Adjustment of Conversion Rate. The Conversion Rate shall be
adjusted from time to time by the Company as follows:
(a) In case the Company shall (i) pay a dividend, or make a
distribution, in shares of its Common Stock, on its Common Stock, (ii)
subdivide its outstanding Common Stock into a greater number of shares, or
(iii) combine its outstanding Common Stock into a smaller number of shares,
the Conversion Rate in effect immediately prior thereto shall be adjusted
so that the holder of any Note thereafter surrendered for conversion shall
be entitled to receive the number of shares of Common Stock which he would
have owned or have been entitled to receive after the happening of any of
the events described above had such Note 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 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 holders
of its Common Stock entitling them (for a period expiring within 45 days
after the record date mentioned below) to subscribe for or purchase Common
Stock at a price per share less than the Current Market Price per share of
Common Stock (as defined in subsection (g) below) at the record date for
the determination of stockholders entitled to receive such rights or
warrants, the Conversion Rate in effect immediately prior thereto shall be
adjusted so that the same shall equal the rate determined by multiplying
the Conversion Rate in effect immediately prior to the date of issuance of
such rights or warrants by a fraction of which the denominator shall be the
number of shares of Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of shares which the aggregate
offering price of the total number of shares so offered would purchase at
such Current Market Price, and of which the numerator shall be the number
of shares of Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of additional shares of Common Stock
offered for subscription or purchase. Such adjustment shall be made
successively whenever any such rights or warrants are issued, and shall
become effective immediately after such record date. In determining whether
any rights or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than such Current Market Price, and in
determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the Company
for such rights or warrants, the value of such consideration, if other than
cash, to be determined by the Board of Directors.
(c) In case the Company shall distribute to all holders of its Common
Stock any shares of any class of capital stock of the Company (other than
Common Stock) or evidences of its indebtedness or assets (excluding cash
dividends or other distributions to the extent paid from retained earnings
of the Company) or rights or warrants to subscribe for or purchase any of
its securities (excluding those referred to in subsection (b) above), then
in each such case the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the date of such distribution by a fraction of
which the denominator shall be the Current Market Price per share (as
defined in subsection (g) below) 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 of the Company, whose determination
shall be conclusive, and described in a certificate filed with the Trustee)
of the portion of the capital stock or assets or evidences of indebtedness
so distributed or of such rights or warrants applicable to one share of
Common Stock, and the numerator shall be the Current Market Price per share
(as defined in subsection (g) below) of the Common Stock on such record
date. Such adjustment shall become effective immediately after the record
date for the determination of shareholders entitled to receive such
distribution.
(d) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding (x) any quarterly cash
dividend on the Common Stock to the extent the aggregate cash dividend per
share of Common Stock in any fiscal quarter does not exceed the greater of
(A) the amount per share of Common Stock of the next preceding quarterly
cash dividend on the Common Stock to the extent such preceding quarterly
dividend did not require any adjustment of the Conversion Rate pursuant to
this Section 15.05(d) (as adjusted to reflect subdivisions or combinations
of the Common Stock), and (B) 3.75% of the average of the last reported
sales price of the Common Stock (determined as provided in Section 15.05(g)
during the ten Trading Days (as defined in Section 15.05(g) next preceding
the date of declaration of such dividend and (y) any dividend or
distribution in connection with the liquidation, dissolution or winding up
of the Company, whether voluntary or involuntary), then, in such case,
unless the Company elects to reserve such cash for distribution to the
holders of the Notes upon the conversion of the Notes so that any such
holder converting Notes will receive upon such conversion, in addition to
the shares of Common Stock to which such holder is entitled, the amount of
cash which such holder would have received if such holder had, immediately
prior to the record date for such distribution of cash, converted its Notes
into Common Stock, the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the record date by a fraction of which the
denominator shall be the Current Market Price of the Common Stock on the
record date less the amount of cash so distributed (and not excluded as
provided above) applicable to one share of Common Stock and the numerator
shall be such Current Market Price of the Common Stock, such adjusted to be
effective immediately prior to the opening of business on the day following
the record date; provided, however, that in the event the portion of the
cash so distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common Stock on the record
date, in lieu of the foregoing adjustment, adequate provision shall be made
so that each Noteholder shall have the right to receive upon conversion the
amount of cash such holder would have received had such holder converted
each Note on the record date. If such dividend or distribution is not so
paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.
If any adjustment is required to be made as set forth in this subsection
(d) as a result of a distribution that is a quarterly dividend, such adjustment
shall be based upon the amount by which such distribution exceeds the amount of
the quarterly cash dividend permitted to be excluded pursuant hereto. If an
adjustment is required to be made as set forth in this subsection (d) above as a
result of a distribution that is not a quarterly dividend, such adjustment shall
be based upon the full amount of the distribution.
(e) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer shall involve the payment by the
Company or such subsidiary of consideration per share of Common Stock
having a fair market value (as determined by the Board of Directors or, to
the extent permitted by applicable law, a duly authorized committee
thereof, whose determination shall be conclusive, and described in a
resolution of the Board of Directors or such duly authorized committee
thereof, as the case may be), at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange offer
(as it shall have been amended) that exceeds the Current Market Price of
the Common Stock on the Trading Day next succeeding the Expiration Time,
the Conversion Rate shall be adjusted so that the same shall equal the rate
determined by multiplying the Conversion Rate in effect immediately prior
to the Expiration Time by a fraction of which the denominator shall be the
number of shares of Common Stock outstanding (including any tendered or
exchanged shares) on the Expiration Time multiplied by the Current Market
Price of the Common Stock on the Trading Day next succeeding the Expiration
Time and the numerator shall be sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) on the Expiration Time and the
Current Market Price of the Common Stock on the Trading Day next succeeding
the Expiration Time, such adjustment to become effective immediately prior
to the opening of business on the day following the Expiration Time. If the
Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be effect if such tender or exchange offer had not been made.
(f) In case of a tender or exchange offer made by a person other than
the Company or any subsidiary for an amount which increases the offeror's
ownership of Common Stock to more than 25% of the Common Stock outstanding
and shall involve the payment by such person of consideration per share of
Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) at the last time (the "Offer
Expiration Time") tenders or exchanges may be made pursuant to such tender
or exchange offer (as it shall have been amended) that exceeds the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Offer Expiration Time, and in which, as of the Offer Expiration Time the
Board of Directors is not recommending rejection of the offer, the
Conversion Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior
to the Offer Expiration Time by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding (including any tendered or
exchanged shares) on the Offer Expiration Time multiplied by the Current
Market Price of the Common Stock on the Trading Day next succeeding the
Offer Expiration Time and the denominator shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Offer Expiration
Time (the shares deemed so accepted, up to any such maximum, being referred
to as the "Accepted Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Accepted Purchased Shares) on
the Offer Explanation Time and the Current Market Price of the Common Stock
on the Trading Day next succeeding the Offer Explanation Time, such
adjustment to become effective immediately prior to the opening of business
on the day following the Offer Expiration Time. In the event that such
person is obligated to purchase shares pursuant to any such tender or
exchange offer, but such person is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price which
would then be in effect if such tender or exchange offer had not been made.
Notwithstanding the foregoing, the adjustment described in this Section
15.05(f) shall not be made if, as of the Offer Expiration Time, the
offering documents with respect to such offer disclose a plan or intention
to cause the Company to engage in any transaction described in Article 12.
(g) For the purpose of any computation under subsections (b), (c),
(d), (e) and (f) above, the Current Market Price per share of Common Stock
at any date shall be deemed to be the average of the last reported sale
prices for the ten consecutive Trading Days (as defined below) preceding
the day before the record date with respect to any distribution, issuance
or other event requiring such computation. The last reported sale price for
each day shall be (i) the last reported sale price of Common Stock on the
National Market of the NASDAQ System, or any similar system of automated
dissemination of quotations of securities prices then in common use, if so
quoted, or (ii) if not quoted as described in clause (i), the mean between
the high bid and low asked quotations for Common Stock as reported by the
National Quotation Bureau Incorporated if at least two securities dealers
have inserted both bid and asked quotations for such class of stock on at
least 5 of the 10 preceding days, or (iii) if the Common Stock is listed or
admitted for trading on any national securities exchange, the last sale
price, or the closing bid price if no sale occurred, of such class of stock
on the principal securities exchange on which such class of stock is
listed. If the Common Stock is quoted on a national securities or central
market system, in lieu of a market or quotation system described above, the
last reported sale price shall be determined in the manner set forth in
clause (ii) of the preceding sentence if bid and asked quotations are
reported but actual transactions are not, and in the manner set forth in
clause (iii) of the preceding sentence if actual transactions are reported.
If none of the conditions set forth above is met, the last reported sale
price of Common Stock on any day or the average of such last reported sale
prices for any period shall be the fair market value of such class of stock
as determined by a member firm of the New York Stock Exchange, Inc.
selected by the Company. As used herein the term "Trading Days" with
respect to Common Stock means (i) if the Common Stock is quoted on the
National Market of the NASDAQ System or any similar system of automated
dissemination of quotations of securities prices, days on which trades may
be made on such system, (ii) if the Common Stock is listed or admitted for
trading on any national securities exchange, days on which such national
securities exchange is open for business or (iii) if the Common Stock is
not so listed, admitted for trading or quoted, any day other than a
Saturday or Sunday or a day on which banking institutions in the State of
New York are authorized or obligated by law or executive order to close.
(h) Each share of Common Stock issued upon conversion of Notes
pursuant to this Article 15 shall be entitled to receive the appropriate
number of Rights, if any, and the certificates representing the Common
Stock issued upon such conversion shall bear such legends, if any, in each
case as provided by and subject to their terms of the Rights Agreement as
in effect at the time of such conversion. If the Rights are separated from
the Common Stock in accordance with the provisions of the Rights Agreement
such that the Holders of Notes would thereafter not be entitled to receive
any such Rights in respect to the Common Stock issuable upon conversion of
such Notes, the Conversion Rate will be adjusted as provided in Section
15.05(c) on the separation date; provided that if such Rights expire,
terminate or are redeemed by the Company, the Conversion Rate shall again
be adjusted to be the Conversion Rate which would then be in effect if such
separation had not occurred. In lieu of any such adjustment, the Company
may amend the Rights Agreement to provide that upon conversion of the Notes
the Holders will receive, in addition to the Common Stock issuable upon
such conversion, the Rights which would have attached to such shares of
Common Stock if the Rights had not become separated from the Common Stock
pursuant to the provisions of the Rights Agreement.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of
the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such shares of Common
Stock,
(ii) are not exercisable, and
(iii) are also issued in respect of future issuances of Common
Stock,
shall not be deemed distributed for purposes of Section 15.05(c) until the
occurrence of the earliest Trigger Event. In addition, in the event of any
distribution of rights or warrants, or any Trigger Event with respect thereto,
that shall have resulted in an adjustment to the Conversion Rate under Section
15.05(c), (1) in the case of any such rights or warrants which shall all have
been redeemed or repurchased without exercise by any holders thereof, the
Conversion Rate shall be readjusted upon such final redemption or repurchase to
give effect to such distribution or Trigger Event, as the case may be, as though
it were a cash distribution, equal to the per share redemption or repurchase
price received by a holder of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to
all holders of Common Stock as of the date of such redemption or repurchase, and
(2) in the case of any such rights or warrants all of which shall have expired
without exercise by any holder thereof, the Conversion Rate shall be readjusted
as if such issuance had not occurred.
(i) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least l% in such
rate; provided, however, that any adjustments which by reason of this
subsection (i) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under
this Article 15 shall be made by the Company and shall be made to the
nearest cent or to the nearest one hundredth of a share, as the case may
be. Anything in this Section 15.05 to the contrary notwithstanding, the
Company shall be entitled to make such increases in the Conversion Rate, in
addition to those required by this Section 15.05, as it in its discretion
shall determine to be advisable in order that any stock dividends,
subdivision of shares, distribution of rights to purchase stock or
securities, or a distribution of securities convertible into or
exchangeable for stock hereafter made by the Company to its stockholders
shall not be taxable. To the extent permitted by applicable law, the
Company from time to time may increase the Conversion Rate by any amount
for any period of time if the period is at least 20 days, the increase is
irrevocable during the period and the Board of Directors shall have made a
determination that such increase would be in the best interests of the
Company, which determination shall be conclusive. Whenever the Conversion
Rate is so increased, the Company shall mail to Noteholders and file with
the Trustee and the Conversion Agent a notice of the increase. The Company
shall mail the notice at least 15 days before the date the increased
Conversion Rate takes effect. The notice shall state the increased
Conversion Rate and the period it will be in effect.
(j) Whenever the Conversion Rate is adjusted, as herein provided, the
Company shall promptly file with the Trustee and any conversion agent other
than the Trustee an Officers' Certificate setting forth the Conversion Rate
after such adjustment and setting forth a brief statement of the facts
requiring such adjustment. Promptly after delivery of such certificate, the
Company shall prepare a notice of such adjustment of the Conversion Rate
setting forth the adjusted Conversion Rate and the date on which such
adjustment becomes effective and shall mail such notice of such adjustment
of the Conversion Rate to the holder of each Note at his last address
appearing on the Note register provided for in Section 2.05 of this
Indenture.
(k) In any case in which this Section 15.05 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (i) issuing
to the holder of any Note converted after such record date and before the
occurrence of such event the additional shares of Common Stock issuable
upon such conversion by reason of the adjustment required by such event
over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (ii) paying to such holder any amount in cash
in lieu of any fraction pursuant to Section 15.03.
Section 15.06. Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur, namely (i) any reclassification or change
of outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of
a subdivision or combination), (ii) any consolidation, merger or combination of
the Company with another corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock, or (iii)
any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for such
Common Stock, then the Company or the successor or purchasing corporation, as
the case may be, shall execute with the Trustee a supplemental indenture
providing that each Note shall be convertible into the kind and amount of shares
of stock and other securities or property or assets (including cash) receivable
upon such reclassification, change, consolidation, merger, combination, sale or
conveyance by a holder of a number of shares of Common Stock issuable upon
conversion of such Notes immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance. Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at his address appearing on the
Note register provided for in Section 2.05 of this Indenture.
The above provisions of this Section shall similarly apply to successive
reclassifications, consolidations, mergers, combinations, and sales.
Section 15.07. Taxes on Shares Issued. The issue of stock certificates on
conversions of Notes shall be made without charge to the converting Noteholder
for any U.S. tax in respect of the issue thereof. The Company shall not,
however, be required to pay any tax which may be payable in respect of any
transfer involved in the issue and delivery of stock in any name other than that
of the holder of any Note converted, and the Company shall not be required to
issue or deliver any such stock certificate unless and until the person or
persons requesting the issue thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
Section 15.08. Reservation of Shares; Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock. The Company shall
provide, free from preemptive rights, out of its authorized but unissued shares,
sufficient shares to provide for the conversion of the Notes from time to time
as such Notes are presented for conversion.
Before taking any action which would cause an adjustment increasing the
Conversion Rate so that the shares of Common Stock issuable upon conversion of
the Notes would be issued for less than the par value of such Common Stock, the
Company will take all corporate action which may be necessary in order that the
Company may validly and legally issue fully paid and nonassessable shares of
such Common Stock at such adjusted Conversion Rate.
The Company covenants that all shares of Common Stock which may be issued
upon conversion of Notes will upon issue be fully paid and nonassessable by the
Company and free from all taxes, liens and charges with respect to the issue
thereof.
The Company covenants that if any shares of Common Stock to be provided for
the purpose of conversion of Notes hereunder require registration with or
approval of any governmental authority under any Federal or State law before
such shares may be validly issued upon conversion, the Company will in good
faith and as expeditiously as possible endeavor to secure such registration or
approval, as the case may be.
The Company further covenants that if at any time the Common Stock shall be
listed on the New York Stock Exchange or any other national securities exchange
the Company will, if permitted by the rules of such exchange, list and keep
listed so long as the Common Stock shall be so listed on such exchange, all
Common Stock issuable upon conversion of the Notes.
Section 15.09. Responsibility of Trustee. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine whether any facts exist which may require any
adjustment of the Conversion Rate or with respect to the nature or extent or
calculation of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same. The Trustee and any other conversion agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time
be issued or delivered upon the conversion of any Note; and the Trustee and any
other conversion agent make no representations with respect thereto. Subject to
the provisions of Section 8.01, neither the Trustee nor any conversion agent
shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Note for the purpose of conversion or
to comply with any of the duties, responsibilities or covenants of the Company
contained in this Article. Without limiting the generality of the foregoing,
neither the Trustee nor any conversion agent shall be under any responsibility
to determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 15.06 relating either to the kind or
amount of shares of stock or securities or property (including cash) receivable
by Noteholders upon the conversion of their Notes after any event referred to in
such Section 15.06 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 8.01 may accept as conclusive evidence of
the correctness of any such provisions, and shall be protected in relying upon,
the Officers' Certificate (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect
thereto.
Section 15.10. Notice to Holders Prior to Certain Actions. In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock (other than in cash out of retained earnings); or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any share
of any class or any other rights or warrants; or
(c) of any reclassification of the Common Stock (other than a
subdivision or combination of its outstanding Common Stock, or a change in
par value, or from par value to no par value, or from no par value to par
value), or of any consolidation or merger to which the Company is a party
and for which approval of any shareholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of the
Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note register, provided for in
Section 2.05 of this Indenture, as promptly as possible but in any event at
least 15 days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
ARTICLE XVI
REDEMPTION OF NOTES AT OPTION OF HOLDERS
Section 16.01. Option to Elect Redemption Upon a Fundamental Change. (a) If
a Fundamental Change shall occur at any time prior to June 1, 2006, each holder
of Notes shall have the right, at such holder's option, to require the Company
to redeem any or all of such holder's Notes on the date (the "Fundamental Change
Redemption Date") (or if such date is not a Business Day, the next succeeding
Business Day) that is 45 days after the date of the Company's notice of such
Fundamental Change. Any redemption of such holder's Notes in part shall be in
the amount of $1,000 principal amount at maturity at their accreted value or any
multiple thereof. Such redemption shall be made at the applicable Fundamental
Change Redemption Price set forth in the form of Note. In each case, the Company
shall also pay accrued interest, if any, on such Notes to, but excluding, the
Fundamental Change Redemption Date; provided that if such Fundamental Change
Redemption Date is a June 1 or a December 1, then the interest payable on such
date shall be paid to the holder of record of the Note on the next preceding May
18 or November 17. The Company shall mail to all holders of record of the Notes
a notice of the occurrence of a Fundamental Change and of the redemption right
arising as a result thereof on or before the 10th day after the occurrence of
such Fundamental Change. The Company shall promptly furnish the Trustee a copy
of such notice.
(b) For a Note to be so redeemed at the option of the holder, the
Company must receive at the office or agency of the Company maintained for
that purpose in New York, New York such Note with the form entitled "Option
to Elect Redemption Upon a Fundamental Change" on the reverse thereof (a
"Fundamental Change Redemption Notice") duly completed, together with such
Notes duly endorsed for transfer, on or before the 30th day after the date
of such notice (or if such 30th day is not a Business Day, the immediately
preceding Business Day). All questions as to the validity, eligibility
(including time of receipt), withdrawal and acceptance of any Note for
redemption shall be determined by the Company, whose determination shall be
final and binding.
A Fundamental Change Redemption Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Trustee at any time
prior to the close of business on the Fundamental Change Redemption Date to
which it relates specifying:
(1) the certificate number of the Note in respect of which such
notice of withdrawal is being submitted,
(2) the principal amount at maturity of the Note with respect to
which such notice of withdrawal is being submitted, and
(3) the principal amount at maturity, if any, of such Note which
remains subject to the original Fundamental Change Redemption Notice
and which has been or will be delivered for redemption by the Company.
Section 16.02. Deposit of Funds for Redemption. On or prior to the date any
Note is required to be paid pursuant to Section 16.01, the Company will deposit
with the Trustee or with one or more paying agents (or, if the Company is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 5.04) an amount of money sufficient to redeem on the applicable
Fundamental Change Redemption Date all the Notes to be repaid on such date at
the appropriate Redemption Price, together with accrued interest to the date
fixed for redemption.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements in this Indenture contained by
the Company shall bind its successors and assigns whether so expressed or not.
Section 17.02. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
Section 17.03. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required under such Act to be a part of and govern this Indenture, assuming
this Indenture qualified thereunder, the latter provision shall control.
Section 17.04. Addresses for Notices, Etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Notes on the Company may be given or served
by being deposited postage prepaid by registered or certified mail in a post
office letter box addressed (until another address is filed by the Company with
the Trustee) to:
The Interpublic Group of Companies, Inc.
1271 Avenue of the Americas
New York, New York 10020
Attention: Chief Financial Officer
Telephone Number: (212) 399-8000
Any notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given or
made in writing at the Principal Office of the Trustee, which office is, at the
date as of which this Indenture is dated, located at:
The Bank of New York
101 Barclay Street, 21st Floor West
New York, New York 10286
Attention: Corporate Trust Trustee Administration
Telephone Number: (212) 815-5092
Facsimile Number: (212) 815-5915
Section 17.05. Governing Law. This Indenture and each Note shall be deemed
to be a contract made under the laws of New York, and for all purposes shall be
construed in accordance with, and governed by, the laws of New York without
regard to the principles of conflict of laws.
Section 17.06. Evidence of Compliance with Conditions Precedent;
Certificates to Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
Section 17.07. Legal Holidays. In any case where the date of maturity of
interest on or principal of the Notes or the date fixed for redemption or
repayment of any Note will be a legal holiday or a day on which banking
institutions in New York, New York are authorized by law or executive order to
close ("Legal Holidays"), then payment of such interest on or principal of the
Notes need not be made on such date but may be made on the next succeeding day
not a Legal Holiday with the same force and effect as if made on the date of
maturity or the date fixed for redemption or repayment and no interest shall
accrue for the period from and after such date.
Section 17.08. No Security Interest Created. Nothing in this Indenture or
in the Notes, expressed or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect, in any jurisdiction where property of the
Company or its subsidiaries is located.
Section 17.09. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any person, other than the parties
hereto, any paying agent, any Note registrar and their successors hereunder, the
holders of Notes and the holders of Senior Debt, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
Section 17.10. Table of Contents, Headings, Etc. The table of contents and
the titles 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.
Section 17.11. Execution in Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
The Bank of New York hereby accepts the trusts in this Indenture declared
and provided, upon the terms and conditions herein above set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly signed, and their respective corporate seals to be hereunto affixed and
attested, all as of the date first written above.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
Attest: /s/ Nicholas J. Camera
Secretary
By: /s/ Alan M. Forster
-----------------------------
Name: Alan M. Forster
Title: Vice President & Treasurer
THE BANK OF NEW YORK
By: /s/ Marie E. Trimboli
-----------------------------
Name: Marie E. Trimboli
Title: Assistant Treasurer
Exhibit 4.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of June 1, 1999 by and among The Interpublic Group of Companies, Inc., a
Delaware corporation (the "Company"), Morgan Stanley & Co. Incorporated,
Goldman, Sachs & Co. and Salomon Smith Barney Inc. (the "Initial Purchasers")
pursuant to the Purchase Agreement, dated as of May 26, 1999 (the "Purchase
Agreement"), between the Company and the Initial Purchasers. In order to induce
the Initial Purchasers to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
The Company agrees with the Initial Purchasers, (i) for their benefit as
Initial Purchasers and (ii) for the benefit of the registered holders from time
to time of the Convertible Notes (including the Initial Purchasers) and the
holders from time to time of the Underlying Common Stock issued upon conversion
or exchange of the Convertible Notes (each of the foregoing a "Holder" and
together the "Holders"), as follows:
Section 1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified person, (i) any
other person directly or indirectly controlling or controlled by, or under
direct or direct common control with, such specified person or (ii) any officer
or director of such other person. For purposes of this definition, the term
"control" (including the terms "controlling," "controlled by" and "under common
control with") of a person means the possession, direct or indirect, of the
power (whether or not exercised) to direct or cause the direction of the
management and policies of a person, whether through the ownership of voting
securities, by contract, or otherwise.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and Friday that is
not a day on which banking institutions in The City of New York are authorized
or obligated by law or executive order to close.
Convertible Notes: The 1.87% Convertible Subordinated Notes due 2006 of the
Company being issued and sold pursuant to the Purchase Agreement and the
Indenture.
Common Stock: The shares of common stock, $0.10 par value per share, of the
Company and any other shares of common stock as may constitute "Common Stock"
for purposes of the Indenture, including the Underlying Common Stock.
Conversion Rate: The initial Conversion Rate is 8.808 shares of Common
Stock per $1,000 principal amount at maturity of Convertible Notes, subject to
adjustment upon the occurrence of certain events pursuant to the terms of the
Indenture.
Damages Accrual Period: See Section 2(e) hereof.
Damages Payment Date: Each of the semi-annual interest payment dates
provided in the Indenture.
Deferral Period: See Section 2(d)(iii) hereof.
Effectiveness Period: The period commencing with the date hereof and ending
on the date that all Registrable Securities have ceased to be Registrable
Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of June 1, 1999, between the Company,
and The Bank of New York as trustee, pursuant to which the Convertible Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms hereof.
Initial Purchasers: Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co.
and Salomon Smith Barney Inc.
Initial Shelf Registration: See Section 2(a) hereof.
Liquidated Damages Amount: See Section 2(e) hereof.
Losses: See Section 6 hereof.
Managing Underwriters: The investment banking firm or firms that shall
manage or co-manage an Underwritten Offering.
Notice Holder: See Section 2(d)(i) hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated under the Securities Act), as
amended or supplemented by any amendment or prospectus supplement, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: See the first paragraph of this Agreement.
Record Holder: (i) With respect to any Damages Payment Date relating to any
Convertible Note as to which any such Liquidated Damages Amount has accrued, the
registered Holder of such Convertible Note on the record date with respect to
the interest payment date under the Indenture on which such Damages Payment Date
shall occur and (ii) with respect to any Damages Payment Date relating to any
Common Stock as to which any such Liquidated Damages Amount has accrued, the
registered Holder of such Common Stock 15 days prior to the next succeeding
Damages Payment Date.
Registrable Securities: (A) The Common Stock of the Company into which the
Convertible Notes are convertible or converted, whether or not such Convertible
Notes have been converted, and at all times subsequent thereto, and any Common
Stock issued with respect thereto upon any stock dividend, split or similar
event until, in the case of any such Common Stock, (i) it is effectively
registered under the Securities Act and resold in accordance with the
Registration Statement covering it, (ii) it is saleable by the Holder thereof
pursuant to Rule 144(k) or (iii) it is sold to the public pursuant to Rule 144,
and, as a result of the event or circumstance described in any of the foregoing
clauses (i) through (iii), the legends with respect to transfer restrictions
required under the Indenture (other than any such legends required solely as the
consequence of the fact that such Common Stock (or the Convertible Notes, upon
the conversion of which, such Common Stock was issued or is issuable) is owned
by, or was previously owned by, the Company or an Affiliate of the Company) are
removed or removable in accordance with the terms of the Indenture; (B) the
Convertible Notes, until, in the case of any such Convertible Note, (i) it is
converted into shares of Common Stock in accordance with the terms of the
Indenture, (ii) it is effectively registered under the Securities Act and resold
in accordance with the Registration Statement covering it, (iii) it is saleable
by the Holder thereof pursuant to Rule 144(k) or (iv) it is sold to the public
pursuant to Rule 144, and, as a result of the event or circumstance described in
any of the foregoing clauses (ii) through (iv), the legends with respect to
transfer restrictions required under the Indenture (other than any such legends
required solely as the consequence of the fact that such Convertible Note is
owned by, or was previously owned by, the Company or an Affiliate of the
Company) are removed or removable in accordance with the terms of the Indenture.
Registration Expenses: See Section 5 hereof.
Registration Statement: Any registration statement of the Company which
covers any of the Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Davis Polk & Wardwell or such other successor counsel as
shall be specified by the Holders of a majority of the Registrable Securities,
the fees and expenses of which will be paid by the Company pursuant to Section 5
hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Bank of New York, the Trustee under the Indenture.
Underlying Common Stock: The Common Stock of the Company into which the
Convertible Notes are convertible or into which the Exchangeable Notes are
exchangeable.
Underwritten Registration or Underwritten Offering: A registration in which
securities of the Company are sold to an underwriter for reoffering to the
public.
Section 2. Shelf Registration. (a) The Company shall prepare and file with
the SEC, as soon as practicable but in any event within ninety (90) days after
the latest date of original issuance of the Convertible Notes (the "Filing
Date"), a Registration Statement for an offering to be made on a delayed or
continuous basis pursuant to Rule 415 of the Securities Act (a "Shelf
Registration") registering the resale from time to time by Holders thereof of
all of the Registrable Securities upon and following conversion or the exchange
of the Convertible Notes (the "Initial Shelf Registration"). The Initial Shelf
Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in the
manner or manners designated by them (including, without limitation, one or more
Underwritten Offerings). The Company shall use its reasonable efforts to cause
the Initial Shelf Registration to become effective under the Securities Act as
promptly as is practicable and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the earlier of the
expiration of the Effectiveness Period or the date a Subsequent Shelf
Registration Statement has been declared effective under the Securities Act.
(b) If the Initial Shelf Registration or any Subsequent Shelf Registration,
as defined below, ceases to be effective for any reason at any time during the
Effectiveness Period (other than because all Registrable Securities registered
thereunder shall have been sold or shall have ceased to be Registrable
Securities), the Company shall use its best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall within thirty (30) days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional Shelf
Registration covering all of the Registrable Securities (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Company shall
use its best efforts to cause the Subsequent Shelf Registration to become
effective as promptly as is practicable after such filing and to keep such
Registration Statement continuously effective until the end of the Effectiveness
Period.
(c) The Company shall supplement and amend the Shelf Registration if
required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by the Initial Purchasers or
by the Trustee on behalf of the Holders of the Registrable Securities covered by
such Registration Statement or by any Managing Underwriter of such Registrable
Securities.
(d) Each Holder of Registrable Securities agrees that if Holder wishes to
sell its Registrable Securities pursuant to a Shelf Registration and related
Prospectus, it will do so only in accordance with this Section 2(d). Each Holder
of Registrable Securities agrees to give written notice to the Company at least
three (3) Business Days prior to any intended distribution of Registrable
Securities under the Shelf Registration, which notice shall specify the date on
which such Holder intends to begin such distribution and any information with
respect to such Holder and the intended distribution of Registrable Securities
by such Holder required to amend or supplement the Registration Statement with
respect to such intended distribution of Registrable Securities by such Holder.
As promptly as is practicable after the date such notice is provided, and in any
event within two (2) Business Days after such date, the Company shall either:
(i) (A) prepare and file with the Commission a post-effective
amendment to the Shelf Registration or a supplement to the related
Prospectus or a supplement or amendment to any document incorporated
therein by reference or file any other required document so that such
Registration Statement will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and so that, as
thereafter delivered to purchasers of the Registrable Securities being sold
thereunder, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; provide the
Holders of the Registrable Securities who gave such notice copies of any
documents filed pursuant to Section 2(d)(i)(A); and inform each such Holder
that the Company has complied with its obligations in Section 2(d)(i)(A)
(or that, if the Company has filed a post-effective amendment to the Shelf
Registration which has not yet been declared effective, the Company will
notify each such Holder to that effect, will use its best efforts to secure
the effectiveness of such post-effective amendment and will immediately
notify each such Holder pursuant to Section 2(d)(i)(A) hereof when the
amendment has become effective); each Holder who has given notice of
intention to distribute such Holder's Registrable Securities in accordance
with Section 2(d) hereof (a "Notice Holder") will sell all or any of such
Registrable Securities pursuant to the Shelf Registration and related
Prospectus only during the 45-day period commencing with the date on which
the Company gives notice, pursuant to Section 2(d)(i)(A), that the
Registration Statement and Prospectus may be used for such purpose (such
45-day period is referred to as a "Selling Period"); the Notice Holders
will not sell any Restricted Securities pursuant to such Registration
Statement or Prospectus after such Selling Period without giving a new
notice of intention to sell pursuant to Section 2(d) hereof and receiving a
further notice from the Company pursuant to Section 2(d)(i)(A) hereof; or
(ii) in the event (A) of the happening of any event of the kind
described in Section 2(e)(i), 2(e)(ii), 2(e)(iii) or 2(e)(iv) hereof or (B)
that, in the judgment of the Company, it is advisable to suspend use of the
Prospectus for a discrete period of time due to pending material corporate
developments or similar material events that have not yet been publicly
disclosed and as to which the Company believes public disclosure will be
prejudicial to the Company, the Company shall deliver a certificate in
writing, signed by its Chief Executive Officer, Chief Financial Officer or
General Counsel, to the Notice Holders, the Special Counsel and the
Managing Underwriters, if any, to the effect of the foregoing and, upon
receipt of such certificate, each such Notice Holder's Selling Period will
not commence until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 2(d)(i)(A)
hereof, or until it is advised in writing by the Company that the
Prospectus may be used, and has received copies of any additional or
supplemental filings that are incorporated or deemed incorporated by
reference in such Prospectus. The Company will use its best efforts to
ensure that the use of the Prospectus may be resumed, and the Selling
Period will commence, as promptly as is practicable and, in the case of a
pending development or event referred to in Section 2(d)(ii)(B) hereof, as
soon as the earlier of (x) public disclosure of such pending material
corporate development or similar material event or (y) in the judgment of
the Company, public disclosure of such material corporate development or
similar material event would not be prejudicial to the Company.
Notwithstanding the foregoing, the Company shall not under any
circumstances be entitled to exercise its right under this Section 2(d)(ii)
to defer the commencement of a Selling Period more than one (1) time in any
three (3) month period or three (3) times in any twelve (12) month period,
and the period in which a Selling Period is suspended shall not exceed
thirty (30) days. In no event shall the Company be permitted to extend the
period during which such Selling Period is deferred from and after the date
a Notice Holder provides notice to the Company in accordance with this
Section 2(d) of its intention to distribute Registrable Securities (a
"Deferral Period") beyond such thirty (30) day period.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if (i) the Initial Shelf Registration has not
been filed on or prior to the Filing Date, (ii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration or proceedings have been initiated with
respect to the Shelf Registration under Section 8(d) or 8(e) of the Securities
Act, (iii) the aggregate number of days in any one Deferral Period exceeds the
periods permitted pursuant to Section 2(d)(ii) hereof or (iv) the number of
Deferral Periods exceeds the number permitted pursuant to Section 2(d)(ii)
hereof (each of the events of a type described in any of the foregoing clauses
(i) through (iv) is individually referred to herein as an "Event", and the
Filing Date in the case of clause (i), the date on which the effectiveness of
the Shelf Registration has been suspended or proceedings with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities Act have been
commenced in the case of clause (ii), the date on which the duration of a
Deferral Period exceeds the periods permitted by Section 2(d)(ii) hereof in the
case of clause (iii), and the date of the commencement of a Deferral Period that
causes the limit on the number of Deferral Periods under Section 2(d)(ii) hereof
to be exceeded in the case of clause (iv), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the "Event Termination" which
shall be the following dates with respect to the respective types of Events: the
date the Initial Registration Statement is filed in the case of an Event of the
type described in clause (i), the date that all stop orders suspending
effectiveness of the Shelf Registration have been removed and the proceedings
initiated with respect to the Shelf Registration under Section 8(d) or (e) of
the Securities Act have terminated, as the case may be, in the case of Events of
the types described in clause (ii), termination of the Deferral Period which
caused the periods permitted by Section 2(d)(ii) to be exceeded in the case of
the commencement of an Event of the type described in clause (iii), and
termination of the Deferral Period the commencement of which caused the number
of Deferral Periods permitted by Section 2(d)(ii) to be exceeded in the case of
Events of the type described in clause (iv).
Accordingly, upon the occurrence of any Event and until such time as there
are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Liquidated Damages Amount"):(A) (i) to each Holder of
a Convertible Note that is a Notice Holder, accruing at a rate equal to one-half
of one percent per annum (50 basis points) on an amount equal to the sum of (x)
the Issue Price (as defined in the Indenture) of the Convertible Notes held by
such Notice Holders and (y) the accrued Original Issue Discount (as defined in
the Indenture) on such Convertible Notes and (ii) to each Holder of an
Underlying Common Stock that is a Notice Holder, accruing at a rate equal to
one-half of one percent per annum (50 basis points) calculated on an amount
equal to the product of (x) the then accreted value of $1,000 principal amount
at maturity of Convertible Note divided by the then applicable Conversion Rate,
times (y) the number of shares of Common Stock held by such Holder; and (B) if
the Damages Accrual Period continues for in excess of thirty (30) days from the
Event Date, from and after the end of such thirty (30) day period until such
time as there are no Events which have occurred and are continuing, (i) to each
Holder of a Convertible Note (whether or not a Notice Holder), accruing at a
rate equal to one-half of one percent per annum (50 basis points) on an amount
equal to the sum of (x) the Issue Price of the Convertible Notes held by such
Holder and (y) the accrued Original Issue Discount on such Convertible Notes and
(ii) to each Holder of Underlying Common Stock (whether or not a Notice Holder),
accruing at a rate equal to one-half of one percent per annum (50 basis points)
calculated on an amount equal to the product of (x) the then accreted value of
$1,000 principal amount at maturity of Convertible Notes divided by the then
applicable Conversion Rate times (y) the number of shares of Common Stock held
by such Holder. Notwithstanding anything else in this Section 2(e), no
Liquidated Damages Amounts shall accrue under clause (A) for the preceding
sentence during any period for which Liquidated Damages Amounts accrue under
clause (B) of the foregoing sentence or as to any Registrable Securities from
and after the earlier of (x) the date such securities are no longer Registrable
Securities, and (y) expiration of the Effectiveness Period. The rate of accrual
of the Liquidated Damages Amount with respect to any period shall not exceed the
rate provided for in this paragraph notwithstanding the occurrence of multiple
concurrent Events.
The Company shall pay the liquidated damages due on any Convertible Notes
or Underlying Common Stock by depositing with the Trustee under the Indenture,
in trust for the benefit of the Notice Holders or the Holders of Convertible
Notes or Underlying Common Stock, as the case may be, entitled thereto, at least
one (1) business day prior to the applicable Damages Payment Date, sums
sufficient to pay the liquidated damages accrued or accruing from and including
the last preceding Damages Payment Date to, but not including, such Damages
Payment Date. The Liquidated Damages Amount shall be paid by the Company to the
Record Holders on each Damages Payment Date by wire transfer of immediately
available funds to the accounts specified by them or by mailing checks to their
registered addresses as they appear in the register, in the case of the
Convertible Notes, if no such accounts have been specified on or before the
Damages Payment Date; provided, however, that any Liquidated Damages Amount
accrued with respect to any Convertible Note or portion thereof called for
redemption on a redemption date, redeemed or repurchased in connection with a
Fundamental Change (as defined in the Indenture) on a repurchase date, or
converted into Common Stock on a conversion date prior to the Damages Payment
Date, shall, in any such event, be paid instead to the Holder who submitted such
Convertible Note or portion thereof for redemption, repurchase or conversion on
the applicable redemption date, repurchase date or conversion date, as the case
may be, on such date (or promptly following the conversion date, in the case of
conversion of a Convertible Note). The Trustee shall be entitled, on behalf of
the Holders of Convertible Notes, Holders of Common Stock and Notice Holders, to
seek any available remedy for the enforcement of this Agreement, including for
the payment of such Liquidated Damages Amount. Notwithstanding the foregoing,
the parties agree that the sole damages payable for a violation of the terms of
this Agreement with respect to which a Liquidated Damages Amount is expressly
provided shall be such Liquidated Damages Amount. Nothing shall preclude a
Notice Holder or Holder of Registrable Securities from pursuing or obtaining
specific performance or other equitable relief with respect to this Agreement,
in addition to the payment of Liquidated Damages.
All of the Company's obligations set forth in this Section 2(e) which are
outstanding with respect to any Registrable Securities at the time such security
ceases to be a Registrable Security shall survive until such time as all such
obligations with respect to such security have been satisfied in full
(notwithstanding termination of the Agreement pursuant to Section 9(o)).
The parties hereto agree that the liquidated damages provided for in this
Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities (other than the Initial
Purchasers) by reason of the failure of the Shelf Registration to be filed or
declared effective or because the Shelf Registration is unavailable (absolutely
or as a practical matter) for effecting resales of Registrable Securities, as
the case may be, in accordance with the provisions hereof.
Section 3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible:
(a) Prepare and file with the SEC a Registration Statement or Registration
Statements on any appropriate form under the Securities Act available for the
sale of the Registrable Securities by the Holders thereof in accordance with the
intended method or methods of distribution thereof, and use its reasonable
efforts to cause each such Registration Statement to become effective and remain
effective as provided herein; provided, that before filing any such Registration
Statement or Prospectus or any amendments or supplements thereto (other than
documents that would be incorporated or deemed to be incorporated therein by
reference and that the Company is required by applicable securities laws or
stock exchange requirements to file) the Company shall furnish to the Initial
Purchasers, the Special Counsel and the Managing Underwriters of such offering,
if any, copies of all such documents proposed to be filed, which documents will
be subject to the review of the Initial Purchasers, the Special Counsel and such
Managing Underwriters, and the Company shall not file any such Registration
Statement or amendment thereto or any Prospectus or any supplement thereto
(other than such documents which, upon filing, would be incorporated or deemed
to be incorporated by reference therein and that the Company is required by
applicable securities laws or stock exchange requirements to file) to which the
Holders of a majority of the Registrable Securities covered by such Registration
Statement, the Initial Purchasers or the Special Counsel shall reasonably object
in writing within two (2) full Business Days.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement continuously effective for the applicable period
specified in Section 2; cause the related Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act with respect to the disposition
of all securities covered by such Registration Statement during the applicable
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement as so amended or such
Prospectus as so supplemented.
(c) Notify the selling Holders, the Initial Purchasers, the Special Counsel
and the Managing Underwriters, if any, promptly, and (if requested by any such
person) confirm such notice in writing, (i) when a Prospectus, any Prospectus
supplement, a Registration Statement or a post-effective amendment to a
Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, (ii) of any request by the SEC or any other federal or state
governmental authority for amendments or supplements to a Registration Statement
or related Prospectus or for additional information, (iii) of the issuance by
the SEC or any other federal or state governmental authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation or
threatening of any proceedings for that purpose, (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification
or exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose, (v) except during any Deferral Period, of the existence of any fact or
happening of any event which makes any statement of a material fact in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue or which would require the
making of any changes in the Registration Statement or Prospectus in order that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
and (vi) of the Company's determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its best efforts to obtain the withdrawal of any order suspending
the effectiveness of a Registration Statement, or the lifting of any suspension
of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest possible moment.
(e) If reasonably requested by the Initial Purchasers, the Special Counsel,
the Managing Underwriters, if any, or the Holders of a majority of the
Registrable Securities being sold, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment to a Registration Statement such
information as the Initial Purchasers, the Special Counsel, the Managing
Underwriters, if any, or such Holders, in connection with any offering of
Registrable Securities, agree should be included therein as required by
applicable law, and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as promptly as is practicable after the Company
has received notification of the matters to be incorporated in such Prospectus
supplement or post-effective amendment; provided, that the Company shall not be
required to take any actions under this Section 3(e) that are not, in the
reasonable opinion of counsel for the Company, in compliance with applicable
law.
(f) Furnish to each selling Holder, the Special Counsel and the Initial
Purchasers, and each Managing Underwriter, if any, without charge, at least one
conformed copy of the Registration Statement or Statements and any amendment
thereto, including financial statements but excluding schedules, all documents
incorporated or deemed to be incorporated therein by reference and all exhibits
(unless requested in writing by such Holder, counsel, Initial Purchasers or
underwriter).
(g) Deliver to each selling Holder, the Special Counsel and the Initial
Purchasers and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the selling
Holders of Registrable Securities and the Underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to register or
qualify or cooperate with the selling Holders, the Managing Underwriters, if
any, and the Special Counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any selling Holder or Managing
Underwriter reasonably requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, that the Company will not be required to (i)
qualify generally to do business in any jurisdiction where it is not then so
qualified or (ii) take any action that would subject it to general service of
process in suits or to taxation in any such jurisdiction where it is not then so
subject.
(i) Cause the Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other governmental agencies
or authorities within the United States, except as may be required solely as a
consequence of the nature of such selling Holder, in which case the Company will
cooperate in all reasonable respects with the filing of such Registration
Statement and the granting of such approvals, as may be necessary to enable the
selling Holder or Holders thereof or the Managing Underwriters, if any, to
consummate the disposition of such Registrable Securities.
(j) During any Selling Period (other than during a Deferral Period),
immediately upon the existence of any fact or the occurrence of any event as a
result of which a Registration Statement shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or if a Prospectus
shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, promptly prepare and file a post-effective amendment to each
Registration Statement or a supplement to the related Prospectus or any document
incorporated therein by reference or file any other required or permissible
document (such as a Current Report on Form 8-K) that would be incorporated by
reference into the Registration Statement so that the Registration Statement
shall not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and so that the Prospectus will not contain any untrue
statement of a material fact or omit to state any material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, use its best efforts to
cause it to become effective as promptly as is practicable.
(k) Enter into such agreements (including, in the event of an Underwritten
Offering, an underwriting agreement in form, scope and substance as is customary
in Underwritten Offerings) and take all such other actions in connection
therewith (including, in the event of an underwritten offering, those reasonably
requested by the Managing Underwriters, if any, or the Holders of a majority of
the Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into, and if the registration is an
underwritten registration, (i) make such representations and warranties, subject
to the Company's ability to do so, to the Holders of such Registrable Securities
and the underwriters with respect to the business of the Company and its
subsidiaries, the Registration Statement, Prospectus and documents incorporated
by reference or deemed incorporated by reference, if any, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
underwritten offerings and confirm the same if and when requested; (ii) use its
reasonable efforts to obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any, Special Counsel
and the Holders of a majority of the Registrable Securities being sold)
addressed to each of the underwriters covering the matters customarily covered
in opinions requested in underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and Managing Underwriters; (iii)
use its reasonable efforts to obtain "cold comfort" letters and updates thereof
from the independent certified public accountants of the Company (and, if
necessary, any other certified public accountants of any subsidiary of the
Company or any business acquired or to be acquired by the Company for which
financial statements and financial data is, or is required to be, included in
the Registration Statement), addressed to each of the Managing Underwriters, if
any, such letters to be in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with Underwritten
Offerings; and (iv) deliver such documents and certificates as may be reasonably
requested by the Holders of a majority of the Registrable Securities being sold,
the Special Counsel and the Managing Underwriters, if any, to evidence the
continued validity of the representations and warranties of the Company and its
subsidiaries made pursuant to clause (i) above and to evidence compliance with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company. The above shall be done at each closing
under such underwriting or similar agreement as and to the extent required
thereunder.
(l) If requested in connection with a disposition of Registrable Securities
pursuant to a Registration Statement, make available for inspection by a
representative of the Holders of Registrable Securities being sold, any Managing
Underwriter participating in any disposition of Registrable Securities, if any,
and any attorney or accountant retained by such selling Holders or underwriter,
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries, and cause the executive officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such representative, Managing Underwriter, attorney
or accountant in connection with such disposition; subject to reasonable
assurances by each such person that such information will only be used in
connection with matter relating to such Registration Statement.
(m) Comply with all applicable rules and regulations of the SEC and make
generally available to its securityholders earning statements (which need not be
audited) satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days after the
end of any 12-month period if such period is a fiscal year) (i) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm commitment or best efforts underwritten offering, and
(ii) if not sold to underwriters in such an offering, commencing on the first
day of the first fiscal quarter of the Company commencing after the effective
date of a Registration Statement, which statements shall cover said 12-month
periods.
(n) Cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as the Holders may request.
(o) Provide a CUSIP number for all Registrable Securities not later than
the effective date of the Registration Statement and provide the Trustee under
the Indenture and the transfer agent for the Common Stock with printed
certificates for the Registrable Securities which are in a form eligible for
deposit with the Depositary Trust Company.
(p) Cause all Registrable Securities covered by the Registration Statement
to be listed on each securities exchange or quotation system on which the
Company's Common Stock is then listed no later than the date the Registration
Statement is declared effective and, in connection therewith, to the extent
applicable, to make such filings under the Exchange Act (e.g., the filing of a
Registration Statement on Form 8-A) and to have such filings declared effective
thereunder.
(q) Cooperate and assist in any filings required to be made with the
National Association of Securities Dealers, Inc.
Section 4. Holder's Obligations. Each Holder agrees, by acquisition of the
Convertible Notes and Registrable Securities, that no Holder of Registrable
Securities shall be entitled to sell any of such Registrable Securities pursuant
to a Registration Statement or to receive a Prospectus relating thereto, unless
such Holder has furnished the Company with the notice required pursuant to
Section 2(d) hereof (including the information required to accompany such
notice) and, promptly after the Company's request, such other information
regarding such Holder and the distribution of such Registrable Securities as the
Company may from time to time reasonably request. The Company may exclude from
such registration the Registrable Securities of any Holder who does not furnish
such information provided above for so long as such information is not so
furnished. Each Holder of Registrable Securities as to which any Registration
Statement is being effected agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not misleading. Any sale of any
Registrable Securities by any Holder shall constitute a representation and
warranty by such Holder that the information relating to such Holder and its
plan of distribution is as set forth in the Prospectus delivered by such Holder
in connection with such disposition, that such Prospectus does not as of the
time of such sale contain any untrue statement of a material fact relating to
such Holder or its plan of distribution and that such Prospectus does not as of
the time of such sale omit to state any material fact relating to such Holder or
its plan of distribution necessary to make the statements in such Prospectus, in
light of the circumstances under which they were made, not misleading.
Section 5. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective. Such
fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x) with respect
to filings required to be made with the National Association of Securities
Dealers, Inc. and (y) of compliance with federal securities or Blue Sky laws
(including, without limitation, fees and disbursements of Special Counsel in
connection with Blue Sky qualifications of the Registrable Securities laws of
such jurisdictions as the Managing Underwriters, if any, or Holders of a
majority of the Registrable Securities being sold may designate), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Securities in a form eligible for deposit with The Depositary Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the Special Counsel or the Holders of a majority of the Registrable
Securities included in any Registration Statement), (iii) reasonable fees and
disbursements of Trustee and its counsel and of the registrar and transfer agent
for the Common Stock, (iv) messenger, telephone and delivery expenses relating
to the performance of the Company's obligations hereunder, (v) reasonable fees
and disbursements of counsel for the Company and the Special Counsel in
connection with the Shelf Registration (provided that the Company shall not be
liable for the fees and expenses of more than one separate firm for all parties
participating in any transaction hereunder), (vi) fees and disbursements of all
independent certified public accountants referred to in Section 3(k)(iii) hereof
(including the expenses of any special audit and "cold comfort" letters required
by or incident to such performance) and (vii) Securities Act liability insurance
obtained by the Company in its sole discretion. In addition, the Company shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which similar securities issued by the Company are then listed and the fees
and expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable
Securities shall pay all registration expenses to the extent the Company is
prohibited by applicable Blue Sky laws from paying for or on behalf of such
seller of Registrable Securities.
Section 6. Indemnification. Indemnification by the Company. The Company
shall indemnify and hold harmless each Holder and each person, if any, who
controls any Holder (within the meaning of either Section 15 of the Securities
Act or Section 20(a) of the Exchange Act) from and against all losses,
liabilities, claims, damages and expenses (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (collectively, "Losses"), arising out of
or based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus or in any amendment
or supplement thereto or in any preliminary prospectus, or arising out of or
based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except insofar as such Losses arise out of or based upon the
information relating to any Holder furnished to the Company in writing by such
Holder expressly for use therein; provided, that the Company shall not be liable
to any Holder of Registrable Securities (or any person controlling such Holder)
to the extent that any such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus if either (A) (i) such Holder failed to send or
deliver a copy of the Prospectus with or prior to the delivery of written
confirmation of the sale by such Holder to the person asserting the claim from
which such Losses arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission, or
(B) (x) such untrue statement or alleged untrue statement, omission or alleged
omission is corrected in an amendment or supplement to the Prospectus and (y)
having previously been furnished by or on behalf of the Company with copies of
the Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, with or prior to the
delivery of written confirmation of the sale of a Registrable Security to the
person asserting the claim from which such Losses arise. The Company shall also
indemnify each underwriter and each person who controls such person (within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act) to the same extent and with the same limitations as provided above with
respect to the indemnification of the Holders of Registrable Securities.
(b) Indemnification by Holder of Registrable Securities. Each Holder agrees
severally and not jointly to indemnify and hold harmless the Company, its
directors, its officers who sign a Registration Statement, and each person, if
any, who controls the Company (within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act), from and against all losses
arising out of or based upon any untrue statement of a material fact contained
in any Registration Statement, Prospectus or preliminary prospectus or arising
out of or based upon any omission of a material fact required to be stated
therein or necessary to make the statements therein not misleading, to the
extent, but only to the extent, that such untrue statement or omission is
contained in any information relating to such Holder so furnished in writing by
such Holder to the Company expressly for use in such Registration Statement or
Prospectus. In no event shall the liability of any selling Holder of Registrable
Securities hereunder be greater in amount than the dollar amount of the proceeds
received by such Holder upon the sale of the Registrable Securities giving rise
to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (a) the fees and expenses of
more than one separate firm (in addition to any local counsel) for all Holders
and all persons, if any, who control any Holder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, and (b) the
fees and expenses of more than one separate firm (in addition to any local
counsel) for the Company, its directors, its officers who sign a Registration
Statement and each person, if any, who controls the Company within the meaning
of either such Section, and that all such fees and expenses shall be reimbursed
as they are incurred. In the case of any such separate firm for the Company, and
such directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) Contribution. To the extent that the indemnification provided for in
this Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party or parties on the other
hand or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the initial placement (before deducting expenses) of the
Convertible Notes pursuant to the Purchase Agreement. Benefits received by any
Holder shall be deemed to be equal to the value of receiving Underlying Common
Stock that is registered under the Securities Act. The relative fault of the
Holders on the one hand and the Company on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Holders or by the Company and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Holders' respective
obligations to contribute pursuant to this paragraph are several in proportion
to the respective number of Registrable Securities they have sold pursuant to a
Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 6(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public exceeds the amount of any
damages which such indemnifying party has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of the
Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Purchase Agreement or otherwise. The
provisions of this Section 6 shall survive so long as Registrable Securities
remain outstanding, notwithstanding any transfer of the Registrable Securities
by any Holder or any termination of this Agreement.
The indemnity and contribution provisions contained in this Section 6 shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of any Holder or
any person controlling any Holder, or the Company, its officers or directors or
any person controlling the Company and (iii) the sale of any Registrable
Securities by any Holder.
Section 7. Information Requirements. (a) The Company shall file the reports
required to be filed by it under the Securities Act and the Exchange Act, and if
at any time the Company is not required to file such reports, it will, upon the
request of any Holder of Registrable Securities, make publicly available, except
during a Deferral Period, other information so long as necessary to permit sales
of Convertible Notes and Underlying Common Stock pursuant to Rule 144 and Rule
144A under the Securities Act. The Company further covenants that it will
cooperate with any Holder of Registrable Securities and take such further
reasonable action as any Holder of Registrable Securities may reasonably request
(including, without limitation, making such reasonable representations as any
such Holder may reasonably request), all to the extent required from time to
time to enable such Holder to sell Registrable Securities without registration
under the Securities Act within the limitation of the exemptions provided by
Rule 144 and Rule 144A under the Securities Act. Upon the request of any Holder
of Registrable Securities, the Company shall deliver to such Holder a written
statement as to whether it has complied with such filing requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
(b) The Company shall file the reports required to be filed by it under the
Exchange Act and shall comply with all other requirements set forth in the
instructions to Form S-3 in order to allow the Company to be eligible to file
registration statements on Form S-3.
Section 8. Submission to Jurisdiction. The Company irrevocably consents and
agrees, for the benefit of the Holders, that any legal action, suit or
proceeding against it with respect to its obligations, liabilities or any other
matter arising out of or in connection with this Agreement may be brought in the
courts of the State of New York or the courts of the United States located in
The City of New York and hereby irrevocably consents and submits to the
non-exclusive jurisdiction of each such court in personam, generally and
unconditionally, with respect to any such action, suit or proceeding for itself
and in respect of its properties, assets and revenues.
The Company has irrevocably designated, appointed and empowered Nicholas J.
Camera, Vice President, General Counsel and Secretary of the Company, as its
designee, appointee and agent to receive, accept and acknowledge for and on its
behalf, and its properties, assets and revenues, service of any and all legal
process, summons, notices and documents which may be served in any such action,
suit or proceeding referred to in the preceding paragraph of this Section 8
brought in any United States or State court that may be made on such designee,
appointee and agent in accordance with legal procedures prescribed for such
courts. Said designation and appointment shall be irrevocable until the end of
the Effectiveness Period, provided, however, that if for any reason such
designee, appointee and agent hereunder shall cease to be available to act as
such, the Company agrees to designate a new designee, appointee and agent in The
City of New York on the terms and for the purposes of this Section 8
satisfactory to the Initial Purchasers. The Company further hereby irrevocably
consents and agrees to the service of any and all legal process, summons,
notices and documents out of any of the aforesaid courts in any such action,
suit, or proceeding by serving a copy thereof upon the relevant agent for
service of process referred to in this Section 8 (whether or not the appointment
of such agent shall for any reason prove to be ineffective or such agent shall
accept or acknowledge such service) or by mailing copies thereof by registered
or certified air mail, postage prepaid, to the Company at its address specified
in or designated pursuant to Section 9 of this Agreement. The Company agrees
that the failure of such designee, appointee and agent to give any notice of
such service to it shall not impair or effect in any way the validity of such
service or any judgment rendered in any action or proceeding based thereon.
Nothing herein shall in any way be deemed to limit the ability of the Notice
Holders or the Holders of the Convertible Notes or the Underlying Common Stock,
to serve any such legal process, summons, notices and documents in any other
manner permitted by applicable law or to obtain jurisdiction over the Company or
bring actions, suits or proceedings against the Company in such other
jurisdictions, and in such manner, as may be permitted by applicable law. The
Company hereby irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now, or until the end of the
Effectiveness Period, have to the laying of venue or any of the aforesaid
actions, suits or proceedings arising out of or in connection with this
Agreement brought in the United States Federal courts located in The City of New
York or the courts of the States of New York and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum.
The provisions of this Section 8 shall survive any termination of this
Agreement, in whole or in part.
Section 9. Miscellaneous. (a) Remedies. In the event of a breach by the
Company of its obligations under this Agreement, each Holder of Registrable
Securities, in addition to being entitled to exercise all rights granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement, provided, that the sole damages payable for a
violation of the terms of this Agreement for which liquidated damages are
expressly provided pursuant to Section 2(e) hereof shall be such liquidated
damages. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as of the date hereof,
and shall not, on or after the date of this Agreement, enter into any agreement
with respect to its securities which conflicts with the rights granted to the
Holders of Registrable Securities in this Agreement. The Initial Purchasers
acknowledge that the registration rights agreements between the Company and
certain of holders of its Common Stock, as provided to the Initial Purchasers,
do not conflict with the rights granted to the Holders of Registrable Securities
in this Agreement.The Company represents and warrants that the rights granted to
the Holders of Registrable Securities hereunder do not in any way conflict with
the rights granted to the Holders of the Company's securities under any other
agreements.
(c) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of Holders of a majority of
the then outstanding Underlying Common Stock constituting Registrable Securities
(with Holders of Convertible Notes deemed to be the Holders, for purposes of
this Section, of the number of outstanding shares of Underlying Common Stock
into which such Debentures are convertible or exchangeable). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof with respect
to a matter that relates exclusively to the rights of Holders of Registrable
Securities whose securities are being sold pursuant to a Registration Statement
and that does not directly or indirectly affect the rights of other Holders of
Registrable Securities may be given by Holders of at least a majority of the
Registrable Securities being sold by such Holders; provided, that the provisions
of this sentence may not be amended, modified, or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing and shall be deemed given (i) when made, if
may by hand delivery, (ii) upon confirmation, if made by telecopier or (iii) one
(1) business day after being deposited with a reputable next-day courier,
postage prepaid, to the parties as follows (provided that with respect to any
notice of intention to sell given by a Holder to the Company pursuant to Section
2(d) hereof in accordance with this Section 9(d) which is given on or after
December 24 of any year and on or prior to January 1 of the next year, such
notice shall only be deemed given upon the earlier of actual receipt of such
notice by an attorney in the Legal Department of the Company or the first
Business Day next succeeding such January 1):
(x) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company in accordance
with the provisions of Section 9(e);
(y) if to the Company, to:
The Interpublic Group of Companies, Inc.
1271 Avenue of the Americas
New York, NY 10020
Attention: Nicholas J. Camera, General Counsel
Telecopy No.: (212) 399-8280
with a copy to:
The Interpublic Group of Companies, Inc.
1271 Avenue of the Americas
New York, New York 10020
Attention: Alan M. Forster, Vice President & Treasurer
Telecopy No.: (212) 310-6288
and
(z) if to the Special Counsel, to:
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
Attention: Francis J. Morison
Telecopy No.: (212) 450-5255
or to such other address as such person may have furnished to the
other persons identified in this Section 9(d) in writing in
accordance herewith.
(e) Owner of Registrable Securities. The Company will maintain, or will
cause its registrar and transfer agent to maintain, a register with respect to
the Registrable Securities in which all transfers of Registrable Securities of
which the Company has received notice will be recorded. The Company may deem and
treat the person in whose name Registrable Securities are registered in such
register of the Company as the owner thereof for all purposes, including,
without limitation, the giving of notices under this Agreement.
(f) Approval of Holders. Whenever the consent or approval of Holders of a
specified percentage of Registrable Securities is required hereunder,
Registrable Securities held by the Company or its affiliates (as such term is
defined in Rule 405 under the Securities Act) (other than the Initial Purchasers
or subsequent Holders of Registrable Securities if such subsequent Holders are
deemed to be such affiliates solely by reason of their holdings of such
Registrable Securities) shall not be counted in determining whether such consent
or approval was given by the Holders of such required percentage.
(g) Successors and Assigns. Any person who purchases any Registrable
Securities from an Initial Purchasers shall be deemed, for purposes of this
Agreement, to be an assignee of such Initial Purchasers. This Agreement shall
inure to the benefit of and be binding upon the successors and assigns of each
of the parties and shall inure to the benefit of and be binding upon each Holder
of any Registrable Securities.
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or restriction of this
Agreement is held to be invalid, illegal, void or unenforceable, the remainder
of the terms, provisions, covenants and restrictions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their best efforts to find
and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction. It
is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions
without including any of such which may be hereafter declared invalid, void or
unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties as a final
expression of their agreement and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and the registration rights granted by the
Company with respect to the Convertible Notes and the Underlying Common Stock of
the Company into which Convertible Notes are convertible or exchangeable sold
pursuant to the Purchase Agreement. Except as provided in the Purchase
Agreement, there are no restrictions, promises, warranties or undertakings,
other than those set forth or referred to herein, with respect to the
registration rights granted by the Company with respect to the Convertible Notes
and the Underlying Common Stock of the Company into which the Convertible Notes
are convertible or exchangeable. This Agreement supersedes all prior agreements
and undertakings among the parties with respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the court, shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(n) Further Assurances. Each of the parties hereto shall use all reasonable
efforts to take, or cause to be taken, all appropriate action, do or cause to be
done all things reasonably necessary, proper or advisable under applicable law,
and execute and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and the other documents contemplated
hereby and consummate and make effective the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of the parties
hereunder shall terminate upon the end of the Effectiveness Period, except for
any liabilities or obligations under Sections 4, 5 or 6 hereof and the
obligations to make payments of and provide for liquidated damages under Section
2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE INTERPUBLIC GROUP OF COMPANIES, INC.
By: /s/ Alan M. Forster
----------------------------------
Name: Alan M. Forster
Title: Vice President and Treasurer
Attest: Nicholas J. Camera
----------------------------------
Secretary
Accepted as of the date first above written:
MORGAN STANLEY & CO. INCORPORATED
GOLDMAN, SACHS & CO
SALOMON SMITH BARNEY INC.
By: MORGAN STANLEY & CO. INCORPORATED
By: /s/ John Tyree
-------------------------
Name: John Tyree
Title: Vice President
Exhibit 5
August 5, 1999
The Interpublic Group of Companies, Inc.
1271 Avenue of the Americas
New York, New York 10020
Re: Registration Statement on Form S-3
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Ladies and Gentlemen:
In my capacity as General Counsel to The Interpublic Group of Companies,
Inc., a Delaware corporation (the "Company"), I have been asked to render this
opinion in connection with a Registration Statement on Form S-3 (the
"Registration Statement") being filed by the Company contemporaneously herewith
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended, covering (i) $361,000,000 aggregate principal amount of the Company's
1.87% Convertible Subordinated Notes due 2006 (the "Notes") and (ii) 6,359,376
shares of common stock, par value $.10 per share, issuable upon conversion of
such Notes (the "Common Stock"), of the Company initially issuable upon
conversion of the Notes plus such indeterminate amount of shares of Common Stock
as may become issuable upon conversion of the Notes as a result of adjustments
to the conversion price (the "Shares"). The Notes and the Shares registered by
the Registration Statement are to be offered for the respective accounts of the
holders thereof.
In that connection, I have examined the Certificate of Incorporation and
the By-Laws, both as amended, of the Company, the Indenture dated as of June 1,
1999 (the "Indenture") between the Company and The Bank of New York, as trustee,
the Registration Rights Agreement dated as of June 1, 1999 between the Company
and Morgan Stanley & Co. Incorporated, Goldman, Sachs & Co., and Salomon Smith
Barney Inc., the Registration Statement, corporate proceedings relating to the
authorization of the Notes and the Shares, and such other instruments and
documents as I deemed relevant under the circumstances.
In making the aforesaid examinations, I have assumed the genuineness of all
signatures and the conformity to original documents of all copies furnished to
me as original or photostatic copies. I have also assumed that the corporate
records furnished to me by the Company include all corporate proceedings taken
by the Company to date.
Based upon and subject to the foregoing, I am of the opinion (i) that the
Notes have been duly authorized and are valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
general principals of equity, and (ii) that the Shares have been duly authorized
and, when issued upon conversion of the Notes in accordance with the terms of
the Indenture, will be validly issued, fully paid and nonassessable shares of
common stock, $ .10 par value, of the Company.
Insofar as the foregoing opinions relate to the validity, binding effect or
enforceability of any agreement or obligation of the Company, (a) I have assumed
that each other party to such agreement or obligation has satisfied those legal
requirements that are applicable to it to the extent necessary to make such
agreement or obligation enforceable against it, and (b) such opinions are
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and to general principals of equity.
The foregoing opinions are limited to the federal law of the United States
of America and the law of the State of New York, and, where necessary, the
corporate laws of the State of Delaware.
I hereby consent to the use of my opinion as herein set forth as an exhibit
to the Registration Statement and to the use of my name under the caption "Legal
Matters" in the Prospectus forming part of the Registration Statement.
Very truly yours,
/s/ Nicholas J. Camera
----------------------
Nicholas J. Camera
Vice President, General
Counsel and Secretary
Exhibit 12
Statement of Ratio of Earnings to Fixed Charges
Six Months
Year Ended December 31, Ended June 30,
------------------------------------------------------ ----------------
1994 1995 1996 1997 1998 1998 1999
---- ---- ---- ---- ---- ---- ----
Ratio of earnings to fixed charges 3.29x 3.84x 4.8x 4.5x 5.4x 5.61x 5.56x
The ratio of earnings to fixed charges is computed by dividing (a) earnings
before taxes adjusted for fixed charges, minority interest and capitalized
interest net of amortization by (b) fixed charges, which includes interest
expense and capitalized interest incurred, plus the portion of interest expense
under operating leases deemed by Interpublic to be representative of the
interest factor, plus amortization of debt issuance costs.
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our report dated
February 19, 1999, relating to the financial statements, which appears on page
53 of the 1998 Annual Report to the Stockholders of The Interpublic Group of
Companies, Inc. (the "Company"), which is incorporated by reference in the
Company's Annual Report on Form 10-K for the year ended December 31, 1998. We
also consent to the incorporation by reference of our report on the Financial
Statement Schedules, which appears on page F-2 of such Annual Report on Form
10-K. We also consent to the reference to us under the heading "Experts" in such
Prospectus.
PricewaterhouseCoopers LLP
New York, New York
August 5, 1999
Exhibit 25
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FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
THE INTERPUBLIC GROUP OF COMPANIES, INC.
(Exact name of obligor as specified in its charter)
Delaware 13-1024020
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
1271 Avenue of the Americas
New York, New York 10020
(Address of principal executive offices) (Zip code)
-------------
1.87% Convertible Subordinated Notes due 2006
(Title of the indenture securities)
================================================================================
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- ----------------------------------------------------------------------- ----------------------------------------
Name Address
- ----------------------------------------------------------------------- ----------------------------------------
Superintendent of Banks of the State of 2 Rector Street
New York, New York N.Y. 10006, and
Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza
New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and 17 C.F.R.
229.10(d).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 27th day of July, 1999.
THE BANK OF NEW YORK
By: /s/ WALTER N. GITLIN
----------------------------------
Name: WALTER N. GITLIN
Title: VICE PRESIDENT
- --------------------------------------------------------------------------------
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 1999,
published in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
In Thousands
ASSETS
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.. $4,508,742
Interest-bearing balances........................... 4,425,071
Securities:
Held-to-maturity securities......................... 836,304
Available-for-sale securities....................... 4,047,851
Federal funds sold and Securities purchased under
agreements to resell................................ 1,743,269
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............39,349,679
LESS: Allowance for loan and
lease losses............603,025
LESS: Allocated transfer risk
reserve........................15,906
Loans and leases, net of unearned income,
allowance, and reserve............................ 38,730,748
Trading Assets......................................... 1,571,372
Premises and fixed assets (including capitalized
leases)............................................. 685,674
Other real estate owned................................ 10,331
Investments in unconsolidated subsidiaries and
associated companies................................ 182,449
Customers' liability to this bank on acceptances
outstanding......................................... 1,184,822
Intangible assets...................................... 1,129,636
Other assets........................................... 2,632,309
Total assets........................................... $61,688,578
LIABILITIES
Deposits:
In domestic offices................................. $25,731,036
Noninterest-bearing.......................10,252,589
Interest-bearing..........................15,478,447
In foreign offices, Edge and Agreement
subsidiaries, and IBFs............................ 18,756,302
Noninterest-bearing..........................111,386
Interest-bearing..........................18,644,916
Federal funds purchased and Securities sold under
agreements to repurchase............................ 3,276,362
Demand notes issued to the U.S.Treasury................ 230,671
Trading liabilities.................................... 1,554,493
Other borrowed money:
With remaining maturity of one year or less......... 1,154,502
With remaining maturity of more than one year
through three years............................... 465
With remaining maturity of more than three years.... 31,080
Bank's liability on acceptances executed and
outstanding......................................... 1,185,364
Subordinated notes and debentures...................... 1,308,000
Other liabilities...................................... 2,743,590
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Total liabilities...................................... 55,971,865
==========
EQUITY CAPITAL
Common stock........................................... 1,135,284
Surplus................................................ 764,443
Undivided profits and capital reserves................. 3,807,697
Net unrealized holding gains (losses) on
available-for-sale securities....................... 44,106
Cumulative foreign currency translation adjustments....
( 34,817)
-- ------
Total equity capital................................... 5,716,713
Total liabilities and equity capital................... $61,688,578
===========
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true to the best of my
knowledge and belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and to the best of
our knowledge and belief has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System
and is true and correct.
Thomas A. Reyni
Alan R. Griffith Directors
Gerald L. Hassell
