As filed with the Securities and
Exchange Commission on October 27, 2009
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
General Cable
Corporation
(Exact name of registrant as
specified in its charter)
|
|
|
|
|
Delaware
|
|
3357
|
|
06-1398235
|
(State or other jurisdiction
of
incorporation or organization)
|
|
(Primary Standard Industrial
Classification Code Number)
|
|
(I.R.S. Employer
Identification Number)
|
4 Tesseneer Drive
Highland Heights, Kentucky
41076-9753
(859) 572-8000
(Address, including
zip code, and telephone number, including area code, of
registrants principal executive offices)
Robert J. Siverd
Executive Vice President, General Counsel and Secretary
General Cable Corporation
4 Tesseneer Drive
Highland Heights, Kentucky
41076-9753
(859) 572-8000
(Name, address,
including zip code, and telephone number, including area code,
of agent for service)
With copies to:
|
|
|
Alan H. Lieblich, Esquire
Jeffrey M. Taylor, Esquire
Blank Rome LLP
One Logan Square
Philadelphia, Pennsylvania
19103-6998
Telephone:
(215) 569-5500
|
|
John D. Lobrano, Esquire
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, New York 10017-3954
Telephone: (212) 455-2000
|
Approximate date of commencement of proposed sale to the
public:
The offering of the securities registered
hereby is to commence promptly following the initial filing of
this Registration Statement. No tendered securities will be
accepted for exchange until this Registration Statement has been
declared effective.
If the securities being registered on this Form are being
offered in connection with the formation of a holding company
and there is compliance with General Instruction G, check
the following
box.
o
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act,
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to
Rule 462(d) under the Securities Act, check the following
box and list the Securities Act registration statement number of
the earlier effective registration statement for the same
offering.
o
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
|
|
|
|
Large
accelerated
filer
þ
|
Accelerated
filer
o
|
Non-accelerated
filer
o
|
Smaller reporting
company
o
|
(Do not check if a smaller
reporting company)
If applicable, place an X in the box to designate the
appropriate rule provision relied upon in conducting this
transaction:
|
|
|
Exchange Act
Rule 13e-4(i)
(Cross-Border Issuer Tender Offer)
|
|
o
|
Exchange Act
Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer)
|
|
o
|
CALCULATION OF REGISTRATION
FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed Maximum
|
|
|
Proposed Maximum
|
|
|
Amount of
|
Title of Each Class of
|
|
|
Amount to be
|
|
|
Offering
|
|
|
Aggregate
|
|
|
Registration
|
Securities to be Registered
|
|
|
Registered
|
|
|
Price per Unit
|
|
|
Offering Price
|
|
|
Fee
|
Subordinated Convertible Notes due 2029
|
|
|
$
|
439,375,000
|
(1)
|
|
|
|
|
|
|
|
$
|
415,921,875
|
(2)
|
|
|
$
|
23,208.44
|
|
Common Stock(3)
|
|
|
|
14,645,863
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(4)
|
Total
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
23,208.44
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Represents the maximum aggregate
principal amount of Subordinated Convertible Notes due 2029 (the
Notes) that may be issued in the exchange offer to
which this Registration Statement relates.
|
|
(2)
|
|
Estimated solely for purpose of
calculating the registration fee pursuant to
Rules 457(f)(1) and (3) under the Securities Act of
1933, as amended (the Securities Act), based on the
market value of General Cable Corporations
1.00% Senior Convertible Notes due 2012 that may be
tendered and accepted for exchange, as calculated in accordance
with Rule 457(c).
|
|
(3)
|
|
The aggregate number of shares of
common stock to be issued upon conversion in full of the Notes
was calculated based on an assumed conversion price of $30.00
per share (which represents the maximum amount of shares
issuable, as adjusted by the maximum make whole payment under
the terms of the Notes). Pursuant to Rule 416 under the
Securities Act, in addition to the shares set forth in the
table, the amount to be registered includes an indeterminate
number of shares issuable upon conversion of the Notes, as such
amount may be adjusted due to stock splits, stock dividends or
other similar transactions.
|
|
(4)
|
|
Pursuant to Rule 457(i) under
the Securities Act, there is no filing fee with respect to the
shares of common stock issuable upon conversion of the Notes.
|
The Registrant hereby amends this Registration Statement on
such date or dates as may be necessary to delay its effective
date until the Registrant shall file a further amendment which
specifically states that this Registration Statement shall
thereafter become effective in accordance with Section 8(a)
of the Securities Act or until this Registration Statement shall
become effective on such date as the Securities and Exchange
Commission, acting pursuant to said Section 8(a), may
determine.
The
information in this prospectus may change. We may not complete
the exchange offer and issue these securities until the
registration statement filed with the Securities and Exchange
Commission is effective. This prospectus is not an offer to sell
or exchange any securities and is not soliciting an offer to buy
or exchange these securities in any jurisdiction in which the
offer is not permitted.
|
SUBJECT TO COMPLETION, DATED
OCTOBER 27, 2009
PROSPECTUS
General Cable
Corporation
OFFER TO EXCHANGE
OUR SUBORDINATED CONVERTIBLE NOTES DUE 2029
FOR OUR OUTSTANDING
1.00% SENIOR CONVERTIBLE NOTES DUE 2012 (CUSIP NOS.
369300AJ7 AND 369300AK4)
Upon the terms and subject to the conditions set forth in this
prospectus and the related letter of transmittal, we are
offering to exchange $925 principal amount of our new
subordinated convertible notes due 2029, or the 2029 notes, for
each $1,000 principal amount of our 1.00% senior
convertible notes due 2012, or the 2012 notes. We will also pay
in cash accrued and unpaid interest on 2012 notes accepted for
exchange from the last interest payment date to, but excluding,
the date on which the exchange of any 2012 notes that are
accepted for exchange is settled. Upon the terms and subject to
the conditions of the exchange offer, we will accept for
exchange any and all 2012 notes validly tendered and not validly
withdrawn prior to the expiration of the exchange offer. As of
the date of this prospectus, the aggregate principal amount of
2012 notes outstanding was $475,000,000. If all of the 2012
notes are accepted for exchange pursuant to the exchange offer,
$439,375,000 aggregate principal amount of 2029 notes will be
issued.
The 2029 notes will mature on November 15, 2029, unless
earlier converted, redeemed or repurchased. The 2029 notes will
be expressly subordinated in right of payment to all our
existing and future senior indebtedness, will be effectively
subordinated in right of payment to our secured indebtedness to
the extent of the value of the assets securing such indebtedness
and will be effectively subordinated to the obligations of our
subsidiaries, including trade payables.
Until November 15, 2019, the 2029 notes will bear interest
at the rate of 4.50% per year, and after November 15, 2019,
the 2029 notes will bear interest at the rate of 2.25% per year.
Interest on the 2029 notes will be payable in cash semi-annually
in arrears on May 15 and November 15 of each year, beginning on
May 15, 2010. Beginning with the six-month period
commencing on November 15, 2019, contingent interest on the
2029 notes will be payable in cash during any
six-month
interest period if the trading price of the 2029 notes, as
defined in this prospectus, for each of the five trading days
ending on the second trading day immediately preceding the first
day of the applicable six-month interest period equals or
exceeds 120% of the principal amount of the 2029 notes. During
any interest period when contingent interest is payable, the
contingent interest will equal 0.50% of the average trading
price of $1,000 in principal amount of the 2029 notes during the
five trading days ending on the second trading day immediately
preceding the first day of the applicable six-month interest
period, as more fully described in this prospectus.
The exchange offer will expire at midnight, New York City
time, on November 24, 2009, unless earlier terminated or
extended by us.
We have not applied, and do not currently intend to apply, to
list either the 2029 notes or the 2012 notes for trading on any
national securities exchange, but we intend to apply to have the
common stock underlying the 2029 notes listed on the New York
Stock Exchange. Our common stock is traded on the New York Stock
Exchange under the symbol BGC. The last reported
sales price of our common stock on October 26, 2009 was
$34.44 per share.
An exchange of the 2012 notes and an investment in the 2029
notes and the underlying common stock involves risks. See
Risk Factors beginning on page 28 for a
discussion of issues that you should consider with respect to
the exchange offer.
You must make your own decision whether to tender any 2012
notes for exchange in the exchange offer, and, if so, the amount
of 2012 notes to tender. Neither General Cable Corporation, nor
the dealer managers, the exchange agent, the information agent,
nor any other person is making any recommendation as to whether
you should tender your 2012 notes for exchange in the exchange
offer.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
The dealer managers for the exchange offer are:
|
|
Goldman,
Sachs & Co.
|
J.P. Morgan
|
The date of this prospectus
is ,
2009
(Cover
page continued)
The 2029 notes will be convertible, at the holders option,
into cash and, in certain circumstances, shares of our common
stock pursuant to the terms of the 2029 notes, based on an
initial conversion price equal to 122.5% of the average VWAP,
provided that the initial conversion price will in no event be
less than a minimum conversion price of $36.75. The
average VWAP means the arithmetic average, as
determined by us, of the daily VWAP for each trading day during
the 10 trading day period ending on and including the scheduled
expiration date for the exchange offer, rounded to four decimal
places. The daily VWAP for any trading day means the
per share volume weighted average price of our common stock on
that day as displayed under the heading Bloomberg VWAP on
Bloomberg Page BGC.N <Equity> AQR (or its
equivalent successor page if such page is not available) in
respect of the period from the scheduled open of trading on the
relevant trading day until the scheduled close of trading on the
relevant trading day (or if such volume weighted average price
is unavailable, the market price of one share of our common
stock on such trading day determined, using a volume weighted
average method, by a nationally recognized investment banking
firm retained by us for this purpose). The initial conversion
rate will be $1,000 divided by the initial conversion price,
rounded to four decimal places. Because the initial conversion
price will not be less than $36.75, the maximum initial
conversion rate will not be greater than 27.2109 shares of
our common stock per $1,000 principal amount of 2029 notes.
The exchange offer is subject to the general conditions
discussed under The Exchange Offer Conditions
to the Exchange Offer. In addition, the exchange offer is
conditioned on the registration statement of which this
prospectus forms a part being declared effective and not being
subject to a stop order or any proceedings for that purpose. The
exchange offer is also conditioned on at least $100,000,000
aggregate principal amount of the 2012 notes being validly
tendered and not validly withdrawn upon the expiration of the
exchange offer.
Holders may withdraw their tendered 2012 notes at any time on or
prior to the expiration date of the exchange offer. In addition,
holders may withdraw any tendered 2012 notes that have not been
accepted for exchange by us after the expiration of 40 business
days from October 27, 2009, if such 2012 notes have not
been previously returned to you.
If the initial conversion price is set at the minimum conversion
price because the average VWAP otherwise would result in an
initial conversion price of less than the minimum conversion
price, we will extend the exchange offer until midnight, New
York City time, on the second trading day following the
previously scheduled expiration date to permit holders to tender
or withdraw their 2012 notes during those days. Any changes in
the prices of our common stock on those additional days of the
exchange offer will not, however, affect the initial conversion
price or the initial conversion ratio.
TABLE OF
CONTENTS
As used in this prospectus, except where the context otherwise
requires or as otherwise indicated, General Cable
Corporation, General Cable, the
company, we, our, and
us refer to General Cable Corporation and its
subsidiaries.
This prospectus incorporates important business and financial
information about us that is not included in or delivered with
this prospectus. Information incorporated by reference is
available without charge to holders of our 2012 notes upon
written or oral request to us at General Cable Corporation, 4
Tesseneer Drive, Highland Heights, Kentucky
41076-9753,
Attention: Chief Financial Officer, or by telephone at
(859) 572-8000.
To obtain timely delivery, security holders should request
this information as early as possible before the expiration
date, but in any event such request must be submitted to us no
later than November 17, 2009, which is the date that is
five business days before the expiration date of the exchange
offer, assuming no extension of the expiration date.
In making a decision to tender 2012 notes in the exchange offer,
you must rely on your own analysis of our business, financial
conditions, results of operations and prospects and the terms of
the exchange offer, including the merits and risks involved. You
should consult with your own advisors as to legal, tax,
business, financial and related aspects of tendering your 2012
notes in the exchange offer.
You should rely only on the information contained or
incorporated by reference in this prospectus. None of the
company, the dealer managers, the information agent or the
exchange agent has authorized any other person to provide you
with different or additional information. If anyone provides you
with different or additional information, you should not rely on
it. We are not making the exchange offer in any jurisdiction
where the offer or exchange is not permitted. You should assume
that the information in this prospectus is only accurate as of
the date appearing on the front cover of this prospectus. Our
business, financial condition, results of operations and
prospects may have changed since that date.
You must comply with all applicable laws and regulations in
force in any applicable jurisdiction and you must obtain any
consent, approval or permission required by you for the exchange
of the 2012 notes under the laws and regulations in force in the
jurisdiction to which you are subject or in which you make your
exchange and neither we nor the dealer managers, the information
agent nor the exchange agent will have any responsibility
therefor.
SPECIAL
NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference
herein include forward-looking statements. Forward-looking
statements are those that predict or describe future events or
trends and that do not relate solely to historical matters. You
can generally identify forward-looking statements as statements
containing the words believe, expect,
anticipate, intend,
estimate, project, plan,
assume, seek to or other similar
expressions, although not all forward-looking statements contain
these identifying words. We commonly use forward-looking
statements throughout this prospectus and the documents
incorporated by reference herein regarding the following
subjects:
|
|
|
|
|
the exchange offer;
|
|
|
|
our business strategy, plans and objectives;
|
|
|
|
our understanding of our competition;
|
|
|
|
market trends;
|
|
|
|
projected sources and uses of available cash flow;
|
|
|
|
projected capital expenditures;
|
|
|
|
our future financial results and performance;
|
|
|
|
potential liability with respect to legal proceedings; and
|
|
|
|
potential effects of proposed legislation and regulatory action.
|
Actual results may differ materially from those discussed in
forward-looking statements as a result of factors, risks and
uncertainties over many of which we have no control. These
factors include, without limitation:
|
|
|
|
|
general economic conditions, particularly those in the
construction, energy and information technology sectors;
|
|
|
|
increased exposure to political and economic developments,
crises, instability, terrorism, civil strife, expropriation and
other risks of doing business in foreign markets;
|
|
|
|
the impact of foreign currency fluctuations and changes in
interest rates;
|
|
|
|
our ability to comply with foreign and U.S. laws and
regulations applicable to our international operations,
including the Foreign Corrupt Practices Act of 1977;
|
|
|
|
the cost and availability of raw materials, including copper,
aluminum, polyethylene and petrochemicals;
|
|
|
|
our ability to increase our selling prices during periods of
increasing raw material costs;
|
|
|
|
economic consequences arising from natural disasters and other
similar catastrophes, such as floods, earthquakes, hurricanes
and tsunamis;
|
|
|
|
our ability to negotiate extensions of labor agreements on
acceptable terms and to deal successfully with any labor
disputes;
|
|
|
|
our ability to increase manufacturing capacity and productivity;
|
|
|
|
the impact of technological changes;
|
|
|
|
changes in customer or distributor purchasing patterns in our
business segments;
|
|
|
|
domestic and local country price competition, particularly in
certain segments of the power cable market and other competitive
pressures;
|
|
|
|
our ability to continue our uncommitted accounts payable
confirming arrangement and our accounts receivable financing
arrangement for our European operations;
|
ii
|
|
|
|
|
the financial impact of any future plant closures;
|
|
|
|
the impact of unexpected future judgments or settlements of
claims and litigation;
|
|
|
|
our ability to complete and integrate acquisitions and
divestitures successfully and our ability to realize expected
cost savings or other perceived benefits of these transactions;
|
|
|
|
economic and political consequences resulting from terrorist
attacks, war and political and social unrest;
|
|
|
|
our ability to achieve target returns on investments in our
defined benefit plans;
|
|
|
|
our ability to avoid limitations on utilization of net losses
for income tax purposes;
|
|
|
|
our ability to service, and meet all requirements under, our
debt, and to maintain adequate domestic and international credit
facilities and credit lines;
|
|
|
|
our ability to pay dividends on our preferred stock;
|
|
|
|
our ability to make payments of interest and principal under the
2029 notes and under our other existing and future indebtedness,
and to have sufficient available funds to effect conversions and
repurchases of 2029 notes from time to time;
|
|
|
|
lowering of one or more debt ratings issued by nationally
recognized statistical rating organizations, and the adverse
impact such action may have on our ability to raise capital and
on our liquidity and financial condition; and
|
|
|
|
other material factors.
|
You should not place undue reliance on our forward-looking
statements because the matters they describe are subject to
risks, uncertainties and other unpredictable factors, many of
which are beyond our control. Our forward-looking statements are
based on the information available to us as of the date on the
cover of this prospectus or, in the case of forward-looking
statements incorporated by reference, as of the date of the
filing that includes any such statement. New risks and
uncertainties arise from time to time, and it is impossible for
us to predict these matters or how they may affect us. Over
time, our actual results, performance or achievements will
likely differ from the anticipated results, performance or
achievements that are expressed or implied by our
forward-looking statements, and such difference might be
significant and materially adverse to our stockholders and
holders of the 2029 notes. Such factors include, without
limitation, the following:
|
|
|
|
|
those identified under Risk Factors;
|
|
|
|
those identified from time to time in our public filings with
the SEC;
|
|
|
|
the negative impact of economic slowdowns or recessions;
|
|
|
|
the effect of changes in interest rates;
|
|
|
|
the effect of changes in the cost of raw materials;
|
|
|
|
the condition of the markets for our products;
|
|
|
|
our access to funding sources and our ability to renew, replace
or add to our existing credit facilities on terms comparable to
the current terms;
|
|
|
|
the impact of new state or federal legislation or court
decisions on our operations; and
|
|
|
|
the impact of new state or federal legislation or court
decisions restricting the activities of lenders or suppliers of
credit in our market.
|
iii
QUESTIONS
AND ANSWERS ABOUT THE EXCHANGE OFFER
These answers to questions that you may have as a holder of
our 2012 notes are highlights of selected information included
elsewhere or incorporated by reference in this prospectus. To
fully understand the exchange offer, the 2029 notes and the
other considerations that may be important to your decision
about whether to participate in the exchange offer, you should
carefully read this prospectus in its entirety, including the
section entitled Risk Factors, as well as the
information incorporated by reference in this prospectus. See
Where You Can Find More Information.
Why are
you making the exchange offer?
The purpose of the exchange offer is to provide us with
financial and strategic flexibility by extending the maturity of
a portion of our total debt represented by the 2012 notes, which
mature on October 15, 2012.
What
securities are the subject of the exchange offer?
The securities that are the subject of the exchange offer are
our 2012 notes. As of October 27, 2009, there was
$475.0 million in aggregate principal amount of 2012 notes
outstanding.
What
aggregate principal amount of 2012 notes is being sought in the
exchange offer?
We will accept for exchange all 2012 notes validly tendered in
the exchange offer and not validly withdrawn prior to the
expiration date of the exchange offer, provided that the
conditions to the exchange offer, including the minimum
condition, are satisfied or, where permitted, waived. See
Is the exchange offer subject to a minimum
condition? and What are the conditions
to the exchange offer?
What will
I receive in the exchange offer if my 2012 notes are accepted
for exchange?
Upon the terms and subject to the conditions set forth in this
prospectus and the related letter of transmittal, we are
offering to exchange $925 in principal amount of our new 2029
notes for each $1,000 in principal amount of our 2012 notes. We
will also pay in cash accrued and unpaid interest on the 2012
notes accepted for exchange from the last interest payment date
to, but excluding, the settlement date. Subject to the
satisfaction or waiver of the conditions to the exchange offer
and the terms of the exchange offer described in this
prospectus, 2012 notes that are validly tendered and not validly
withdrawn will be accepted for exchange in accordance with the
terms of the exchange offer.
Is the
exchange offer subject to a minimum condition?
The exchange offer is conditioned on at least $100.0 million
aggregate principal amount of the 2012 notes being validly
tendered and not validly withdrawn. The exchange offer is also
subject to the other conditions discussed under The
Exchange Offer Conditions to the Exchange
Offer, including, among other things, the effectiveness of
the registration statement of which this prospectus forms a part.
What
aggregate principal amount of 2029 notes will be issued in the
exchange offer?
Upon the terms and subject to the conditions of the exchange
offer, if all of the 2012 notes are accepted for exchange
pursuant to the exchange offer, approximately
$439.4 million aggregate principal amount of 2029 notes
will be issued. Upon the terms and subject to the conditions of
the exchange offer, if only $100.0 million aggregate principal
amount of the 2012 notes is accepted for exchange pursuant to
the exchange offer, approximately $92.5 million aggregate
principal amount of 2029 notes will be issued.
How does
the interest rate on the 2029 notes to be offered in the
exchange offer compare to the interest rate on the 2012
notes?
Under the terms of the 2029 notes, until November 15, 2019,
holders will be entitled to receive cash interest payments
semi-annually in arrears at an initial annual rate of 4.50%.
After November 15, 2019, holders of 2029 notes will be
entitled to receive cash interest payments semi-annually in
arrears at a rate of
1
2.25% per year. In addition, holders of the 2029 notes will be
entitled to receive a specified amount of contingent interest in
cash beginning with the six-month interest period commencing
November 15, 2019 if the trading price of the 2029 notes
for each of the five trading days ending on the second trading
day immediately preceding the first day of the applicable
six-month interest period equals or exceeds 120% of the
principal amount of the 2029 notes. See Description of the
2029 Notes Contingent Interest. Interest on
the 2029 notes will be payable on May 15 and November 15 of each
year, beginning on May 15, 2010, until the 2029 notes
mature on November 15, 2029, unless earlier converted,
redeemed or repurchased. See Description of the 2029
Notes Interest and Comparison of the
2029 Notes to the 2012 Notes.
Under the terms of the 2012 notes, holders are entitled to
receive cash interest payments semi-annually in arrears at an
annual rate of 1.00%. Interest on the 2012 notes is payable on
April 15 and October 15 of each year until October 15,
2012, unless earlier converted or repurchased. The terms of the
2012 notes do not provide for any adjustment of the interest
rate or any payment of contingent interest.
What is a
recent market price of your common stock?
Our common stock is traded on the New York Stock Exchange under
the symbol BGC. The last reported sale price of our
common stock on October 26, 2009 was $34.44 per share.
How do
the conversion price and conversion rate of my 2012 notes
compare with the conversion price and conversion rate of the
2029 notes offered in the exchange offer?
Under certain circumstances, holders may convert their 2012
notes into cash and, in certain circumstances, shares of our
common stock, based on a conversion rate of 11.9142 shares
of our common stock per $1,000 principal amount of 2012 notes
(subject to adjustment), which is equal to a conversion price of
approximately $83.93 per share.
Under certain circumstances, holders may convert their 2029
notes into cash, and, in certain circumstances, an applicable
number shares of our common stock per $1,000 principal amount of
2029 notes (representing an applicable conversion price per
share), subject to adjustment. The initial conversion price will
equal 122.5% of the average VWAP, rounded to four decimal
places; provided that in no event will the initial conversion
price be less than a minimum conversion price of $36.75. The
average VWAP means the arithmetic average, as
determined by us, of the daily VWAP for each trading day during
the 10 trading day period ending on and including the expiration
date for the exchange offer, rounded to four decimal places. We
note that, while November 11, 2009 is a U.S. federal
holiday, it is scheduled to be a trading day.
The daily VWAP for any trading day means the per
share volume weighted average price of our common stock on that
day as displayed under the heading Bloomberg VWAP on Bloomberg
Page BGC.N <Equity> AQR (or its equivalent
successor page if such page is not available) in respect of the
period from the scheduled open of trading on the relevant
trading day until the scheduled close of trading on the relevant
trading day (or if such volume weighted average price is
unavailable, the market price of one share of our common stock
on such trading day determined, using a volume weighted average
method, by a nationally recognized investment banking firm
retained by us for this purpose). The initial conversion rate of
the 2029 notes will be specified in the indenture for the 2029
notes, and will equal $1,000 divided by the initial conversion
price, rounded to four decimal places.
2
The table below provides examples of the initial conversion
price and the initial conversion rate per $1,000 principal
amount of 2029 notes assuming that the average VWAP reaches
specified levels.
|
|
|
|
|
|
|
|
|
Initial Conversion Rate
|
Sample Average
|
|
Initial Conversion
|
|
per $1,000 Principal
|
VWAP
|
|
Price
|
|
Amount of 2029 Notes
|
|
$28.00
|
|
$36.7500
|
|
27.2109
|
$29.00
|
|
$36.7500
|
|
27.2109
|
$30.00
|
|
$36.7500
|
|
27.2109
|
$31.00
|
|
$37.9750
|
|
26.3331
|
$32.00
|
|
$39.2000
|
|
25.5102
|
$33.00
|
|
$40.4250
|
|
24.7372
|
$34.00
|
|
$41.6500
|
|
24.0096
|
$35.00
|
|
$42.8750
|
|
23.3236
|
$36.00
|
|
$44.1000
|
|
22.6757
|
$37.00
|
|
$45.3250
|
|
22.0629
|
$38.00
|
|
$46.5500
|
|
21.4823
|
$39.00
|
|
$47.7750
|
|
20.9314
|
How can I
obtain information regarding the determination of the initial
conversion price and the initial conversion rate?
Throughout the exchange offer, the indicative average VWAP and
the resulting indicative initial conversion price and indicative
initial conversion rate with respect to the 2029 notes will be
available through the Internet at
http://www.dfking.com/generalcable and from the information
agent at one of its telephone numbers listed on the back cover
page of this prospectus. We will announce the definitive initial
conversion price and the definitive initial conversion rate with
respect to the 2029 notes by 4:30 p.m., New York City time,
on the expiration date, and the definitive initial conversion
price and the definitive initial conversion rate also will be
available by that time at http://www.dfking.com/generalcable and
from the information agent.
Is there
a minimum conversion price for the 2029 notes?
Yes. In no event will the initial conversion price for the 2029
notes be less than the minimum conversion price of $36.75. If
the initial conversion price equals the minimum conversion
price, the initial conversion rate would be 27.2109 shares
of our common stock per $1,000 in principal amount of 2029 notes.
Depending on the trading price of our common stock compared to
the average VWAP described above, the initial conversion price
may be set at the minimum conversion price. If the average VWAP
is equal to or less than $30.00, the initial conversion price
will equal $36.75, the minimum conversion price. If the initial
conversion price is set at the minimum conversion price because
the average VWAP otherwise would result in an initial conversion
price of less than the minimum conversion price, we will extend
the exchange offer until midnight, New York City time, on the
second trading day following the original expiration date to
permit holders to tender or withdraw their 2012 notes during
those days. Any changes in the prices of our common stock on
those additional days of the exchange offer will not, however,
affect the initial conversion price or the initial conversion
rate.
Can I
currently exercise conversion rights under the 2012
notes?
As of October 26, 2009, holders may not exercise their
conversion rights under their 2012 notes. Absent the occurrence
of certain circumstances which would permit earlier conversion
of the 2012 notes, the 2012 notes will only become convertible
at the option of the holders thereof beginning on
September 15, 2012 and ending at the close of business on
the business day immediately preceding October 15, 2012,
the maturity date of the 2012 notes.
3
When
would I be able to exercise the conversion rights under the 2029
notes?
Prior to August 31, 2029, the 2029 notes would only be
convertible upon the occurrence of certain circumstances. See
Description of the 2029 Notes Conversion
Rights.
What
other rights will I lose if I exchange my 2012 notes in the
exchange offer?
If you validly tender your 2012 notes and we accept them for
exchange, you will lose the rights of a holder of the 2012 notes
with respect to the 2012 notes you exchange. For example, you
would lose the right to receive semi-annual interest payments
and principal payments in accordance with the terms of the 2012
notes that are accepted for exchange in the exchange offer. See
Comparison of the 2029 Notes to the 2012 Notes.
May I
tender only a portion of the 2012 notes that I hold?
Yes. You do not have to tender all of your 2012 notes in order
to participate in the exchange offer. However, you may only
tender 2012 notes for exchange in integral multiples of $1,000
principal amount.
In what
denominations will the 2029 notes be issued? What will happen if
I am otherwise entitled to 2029 notes in a lower principal
amount?
The 2029 notes will be issued only in minimum denominations of
$1,000 and integral multiples thereof. In lieu of issuing 2029
notes in denominations of other than a minimum denomination of
$1,000 and integral multiples thereof, if the amount of 2012
notes accepted for exchange from a particular holder is such
that the minimum denomination threshold of the 2029 notes is not
reached, at settlement, we will deliver 2029 notes in a minimum
denomination of $1,000 and integral multiples thereof and cash
equal to the remaining principal amount of 2029 notes that would
otherwise have been issued to such holder but for the minimum
denomination threshold.
If the
exchange offer is completed and I do not participate in the
exchange offer or I do not exchange all of my 2012 notes in the
exchange offer, how will the terms of my remaining outstanding
2012 notes be affected?
The terms of your 2012 notes that remain outstanding after the
completion of the exchange offer will not change as a result of
the exchange offer.
How will
the exchange offer affect the trading market for the 2012 notes
that are not exchanged?
The 2012 notes are not listed for trading on any national
securities exchange, and there currently is a limited trading
market for the 2012 notes. To the extent that 2012 notes are
tendered and accepted for exchange pursuant to the exchange
offer, the trading market for the remaining 2012 notes will be
even more limited or may cease to exist altogether. A debt
security with a small outstanding aggregate principal amount, or
float, may command a lower price than would a
comparable debt security with a larger float. Therefore, the
market price for the unexchanged 2012 notes may be adversely
affected as a result of the exchange offer. The reduced float
may also make the trading price of the remaining 2012 notes more
volatile. See Risk Factors Risks Related to
Participation in the Exchange Offer by Holders of 2012
Notes The liquidity of any trading market that
currently exists for the 2012 notes may be adversely affected by
the exchange offer, and holders of 2012 notes who fail to
participate in the exchange offer may find it more difficult to
sell their 2012 notes after the exchange offer is
completed.
What do
you intend to do with the 2012 notes that are accepted for
exchange in the exchange offer?
The 2012 notes accepted for exchange by us in the exchange offer
will be cancelled and retired in accordance with the terms of
the indenture governing the 2012 notes.
4
Are you
making a recommendation as to whether I should participate in
the exchange offer?
No recommendation will be made by us, the dealer managers, the
information agent or the exchange agent as to whether you should
tender or refrain from tendering your 2012 notes for exchange in
the exchange offer. You must make your own determination as to
whether to tender your 2012 notes for exchange in the exchange
offer and, if so, the principal amount of 2012 notes to tender,
and you should consult with your own advisors as to the legal,
tax, business, financial and other aspects of tendering your
2012 notes. Before making your decision, we urge you to read
this prospectus carefully in its entirety, including the
information set forth in the section entitled Risk
Factors, and in the documents incorporated by reference in
this prospectus.
When will
I receive the exchange offer consideration for my 2012 notes
that are tendered and accepted for exchange pursuant to the
exchange offer?
The 2029 notes deliverable in respect of your 2012 notes
accepted for exchange will, upon the terms and subject to all
conditions of the exchange offer, be delivered to the exchange
agent (or upon its instruction to The Depository
Trust Company, or DTC), as agent for the holders whose 2012
notes have been accepted for exchange, on the settlement date.
The settlement date will occur promptly following the expiration
date, and we expect that the settlement date will occur within
three New York Stock Exchange trading days after the expiration
date. If the exchange offer is not completed, no exchange will
occur, no delivery of 2029 notes or cash will occur and we will
return your tendered 2012 notes. All conditions to the exchange
offer must be satisfied or waived on or prior to the expiration
date if we are to accept any 2012 notes for exchange in the
exchange offer.
Will you
receive any cash proceeds from the exchange offer?
No. We will not receive any cash proceeds from the exchange
offer.
Will the
2029 notes to be issued in the exchange offer be freely
tradable?
The 2029 notes received pursuant to the exchange offer generally
may be offered for resale, resold and otherwise transferred
without further registration under the Securities Act and
without delivery of a prospectus meeting the requirements of
Section 10 of the Securities Act if the holder is not our
affiliate within the meaning of Rule 144(a)(1)
under the Securities Act. Any holder who is our affiliate at the
time of the exchange must comply with the registration and
prospectus delivery requirements of the Securities Act in
connection with any resales, unless such sale or transfer is
made pursuant to an exemption from such requirements and the
requirements under applicable state securities laws.
Are any
2012 notes held by your directors or executive
officers?
To our knowledge, none of our directors, executive officers or
controlling persons, or any of their affiliates, beneficially
own any 2012 notes. For more information on the interests of our
directors and executive officers in the exchange offer, see the
section of this prospectus entitled Interests of Directors
and Executive Officers.
Do you or
any of your affiliates have any current plans to purchase any of
the 2012 notes that remain outstanding subsequent to the
expiration date?
No. Although we and our affiliates do not have any current plans
to purchase any 2012 notes that remain outstanding subsequent to
the expiration date, we and our affiliates reserve the right to
do so. Following completion of the exchange offer, we may
repurchase additional 2012 notes that remain outstanding in the
open market, in privately negotiated transactions, in tender
offers, in new exchange or conversion offers. Future purchases
or exchanges of 2012 notes that remain outstanding after the
exchange offer may be on terms that are more or less favorable
than those offered in the exchange offer.
Rule 13e-4
under the Securities Exchange Act of 1934, as amended, or the
Exchange Act, generally prohibits us and our affiliates from
purchasing any 2012 notes other than pursuant to the exchange
offer until 10 business days after the expiration date of the
exchange offer.
Rule 14e-5
under the Exchange Act also prohibits us and our affiliates and
the
5
dealer managers and their affiliates from purchasing the 2012
notes outside of the exchange offer from the time that the
exchange offer is first announced until the expiration of the
exchange offer, subject to certain exceptions. Future purchases
or exchanges, if any, will depend on many factors, which
include, without limitation, market conditions, the condition of
our business and our financial condition and results of
operations.
What are
the conditions to the exchange offer?
The exchange offer is subject to the conditions described in
The Exchange Offer Conditions to the Exchange
Offer, including the condition that the registration
statement of which this prospectus forms a part shall have been
declared effective and that there shall not have occurred or be
reasonably likely to occur any material adverse change to our
business, operations, properties, condition, assets,
liabilities, prospects or financial affairs. The exchange offer
is also conditioned, among other things, on at least $100.0
million aggregate principal amount of the 2012 notes being
validly tendered and not validly withdrawn upon the expiration
of the exchange offer.
When does
the exchange offer expire?
The exchange offer will expire at midnight, New York City time,
on November 24, 2009, unless extended or earlier terminated
by us. If the initial conversion price is set at the minimum
conversion price because the average VWAP otherwise would result
in an initial conversion price of less than the minimum
conversion price, we will extend the exchange offer until
midnight, New York City time, on the second trading day
following the previously scheduled expiration date to permit
holders to tender or withdraw their 2012 notes during those
days. Any changes in the prices of our common stock on those
additional days of the exchange offer will not, however, affect
the initial conversion price or the initial conversion ratio.
Under
what circumstances may the exchange offer be extended, amended
or terminated?
We reserve the right to extend the exchange offer for any
reason, subject to applicable law. We also expressly reserve the
right, at any time or from time to time, to amend the terms of
the exchange offer in any respect consistent with applicable law
prior to the expiration date of the exchange offer. However, we
may be required by law to extend the exchange offer if we make a
material change in the terms of the exchange offer or to the
information contained in this prospectus, or otherwise as
required under applicable law.
During any extension of the exchange offer, 2012 notes that were
previously tendered for exchange and not validly withdrawn will
remain subject to the exchange offer. We also reserve the right
to terminate the exchange offer at any time prior to the
expiration date of the exchange offer if any condition to the
exchange offer is not met. If the exchange offer is terminated,
no 2012 notes will be accepted for exchange, and any 2012 notes
that have been tendered for exchange, and not previously
returned to the holder in connection with a valid withdrawal,
will be returned to the holder promptly after the termination of
the exchange offer. See The Exchange Offer
Expiration Date; Extension; Termination; Amendment.
How will
I be notified if the exchange offer is extended, amended or
terminated?
We will issue a press release or otherwise publicly announce any
extension, amendment or termination of the exchange offer. In
the case of an extension, we will promptly make a public
announcement by issuing a press release no later than
9:00 a.m., New York City time, on the first business day
after the previously scheduled expiration date of the exchange
offer. See The Exchange Offer Expiration Date;
Extension; Termination; Amendment.
What
risks should I consider in deciding whether or not to tender my
2012 notes?
In deciding whether to tender 2012 notes in the exchange offer,
you should carefully consider the discussion of risks and
uncertainties affecting our business, the 2029 notes and our
common stock described in the section of this prospectus
entitled Risk Factors, and in the documents
incorporated by reference in this prospectus.
6
What are
the material U.S. federal income tax considerations of tendering
my 2012 notes in the exchange offer, holding and disposing of
2029 notes and converting 2029 notes into common
stock?
Please see the section of this prospectus entitled
Material U.S. Federal Income Tax Considerations
for a summary of the material U.S. federal income tax
considerations relating to the exchange of 2029 notes for 2012
notes in the exchange offer, and the ownership, conversion and
disposition of the 2029 notes, and, where noted, the common
stock into which the 2029 notes may be convertible. However,
before deciding whether to tender your 2012 notes in the
exchange offer, you should consult your own tax advisors
concerning the U.S. federal income tax considerations
applicable to you in light of your particular situation as well
as any consequences under the laws of another taxing
jurisdiction.
Are your
financial condition and your results of operations relevant to
my decision to tender my 2012 notes for exchange in the exchange
offer?
Yes. We believe that the respective market prices of our common
stock and the 2012 notes are closely linked to our financial
condition and results of operations. In addition, the market
price of our 2029 notes issued pursuant to the exchange offer is
expected to be closely linked to our financial condition and
results of operations. For information about the accounting
treatment of the exchange offer, see the section of this
prospectus entitled The Exchange Offer
Accounting Treatment.
How do I
tender my 2012 notes for exchange in the exchange
offer?
If you beneficially own 2012 notes that are held in the name of
a broker or other nominee and wish to tender such 2012 notes for
exchange, you should promptly instruct your broker or other
nominee to tender 2012 notes on your behalf. To tender 2012
notes in the exchange offer, D.F. King & Co., Inc.,
the exchange agent, must receive, on or prior to midnight, New
York City time, on the expiration date of the exchange offer:
|
|
|
|
(1)
|
a properly completed, duly signed and dated letter of
transmittal, or a facsimile of the letter of transmittal, with a
signature guarantee if the letter of transmittal so requires,
and any other documents required by the letter of
transmittal; or
|
|
|
(2)
|
an agents message transmitted by DTC on behalf of the
holder pursuant to such holders instructions, in which
message the holder of the 2012 notes acknowledges and agrees to
be bound by the terms of the letter of transmittal, and which
message shall be received by the exchange agent on or prior to
midnight, New York City time, on the expiration date, according
to the procedure for book-entry transfer described
below; and
|
|
|
|
|
|
confirmation of book-entry transfer of the holders 2012
notes into the exchange agents account at DTC pursuant to
the procedure for book-entry transfers described in this
prospectus under the heading The Exchange
Offer Procedures for Tendering 2012 Notes.
|
For more information regarding the procedures for exchanging
your 2012 notes, see the section of this prospectus entitled
The Exchange Offer Procedures for Tendering
2012 Notes and The Exchange Offer
Book-Entry Transfer.
May I
tender my 2012 notes by notice of guaranteed delivery?
No. There are no guaranteed delivery procedures applicable to
the exchange offer and, accordingly, 2012 notes may not be
tendered by delivering a notice of guaranteed delivery. All
tenders must be completed by midnight, New York City time,
on the expiration date in order to be considered valid.
What
happens if some or all of my 2012 notes are not accepted for
exchange?
Any 2012 notes not accepted by us for exchange in the exchange
offer will be returned to you, at our expense, promptly after
the expiration or termination of the exchange offer to the
address specified by you in
7
the letter of transmittal or by book-entry transfer into an
account with DTC specified by you. For more information, see the
section of this prospectus entitled The Exchange
Offer Withdrawal Rights.
Until
when may I withdraw 2012 notes previously tendered for
exchange?
You may withdraw 2012 notes that were previously tendered for
exchange at any time on or prior to the expiration date of the
exchange offer. In addition, you may withdraw any 2012 notes
that you tender that have not been accepted for exchange by us
after the expiration of 40 business days from October 27,
2009, if such 2012 notes have not been previously returned to
you. For more information, see the section of this prospectus
entitled The Exchange Offer Withdrawal
Rights.
How do I
withdraw 2012 notes previously tendered for exchange in the
exchange offer?
To withdraw 2012 notes previously tendered for exchange, the
exchange agent must receive a notice of withdrawal, transmitted
by DTC on behalf of the holder in accordance with the standard
operating procedures of DTC or a written notice of withdrawal,
sent by facsimile transmission, receipt confirmed by telephone,
or letter, on or prior to the expiration date. For more
information regarding the procedures for withdrawing tenders of
2012 notes, see the section of this prospectus entitled
The Exchange Offer Withdrawal Rights. A
form of notice of withdrawal may be obtained from the
information agent. The information agents contact
information appears on the back cover of this prospectus.
Will I
have to pay any fees or commissions if I tender my 2012 notes
for exchange in the exchange offer?
You will not be required to pay any fees or commissions to us,
the dealer managers, the information agent or the exchange agent
in connection with the exchange offer. If your 2012 notes are
held through a broker or other nominee who tenders the 2012
notes on your behalf (other than those tendered through a dealer
manager), your broker may charge you a commission for doing so.
You should consult with your broker or nominee to determine
whether any charges will apply.
With whom
may I talk if I have questions about the exchange
offer?
If you have questions regarding the terms of the exchange offer,
please contact the dealer managers, Goldman, Sachs &
Co. and J.P. Morgan Securities Inc. The addresses and
telephone numbers for the dealer managers are set forth on the
back cover of this prospectus. If you have questions regarding
the procedures for tendering your 2012 notes for exchange in the
exchange offer, please contact the information agent at the
address and telephone numbers set forth on the back cover of
this prospectus.
8
SUMMARY
This summary highlights the information contained or
incorporated by reference in this prospectus. Because this is
only a summary, it does not contain all of the information that
may be important to you. For a more complete understanding of
the exchange offer, we encourage you to read this entire
prospectus, including Risk Factors and the financial
and other information contained in and incorporated by reference
in this prospectus, before making a decision whether to tender
your 2012 notes for exchange.
General
Cable Corporation
Overview
We are a global leader in the development, design, manufacture,
marketing and distribution of copper, aluminum and fiber optic
wire and cable products. We have a strong market position in
each of the segments in which we compete due to our product,
geographic and customer diversity and our ability to operate as
a low-cost producer. We sell a wide variety copper, aluminum and
fiber optic wire and cable products, which we believe represents
one of the most diversified product lines in the industry. As a
result, we are able to offer our customers a single source for
most of their wire and cable requirements. We have 47
manufacturing facilities, including two facilities owned by
companies in which we have an equity investment, and sell our
products worldwide through our global operations. Technical
expertise and implementation of Lean Six Sigma strategies have
contributed to our ability to maintain our position as a
low-cost producer.
Our operations are divided into the following three reportable
segments:
|
|
|
|
|
North America;
|
|
|
|
Europe and North Africa; and
|
|
|
|
Rest of World, or ROW.
|
The net sales in fiscal year 2008 and the six fiscal months
ended July 3, 2009 generated by each of our reportable
segments (as a percentage of our total company results) were as
follows:
|
|
|
|
|
|
|
|
|
|
|
Percentage of Net Sales
|
|
|
|
|
|
|
For the
|
|
|
|
For the Year
|
|
|
Six Fiscal
|
|
|
|
Ended
|
|
|
Months
|
|
|
|
December 31,
|
|
|
Ended July 3,
|
|
Reportable Segment
|
|
2008
|
|
|
2009
|
|
|
North America
|
|
|
35
|
%
|
|
|
35
|
%
|
Europe and North Africa
|
|
|
35
|
%
|
|
|
36
|
%
|
ROW
|
|
|
30
|
%
|
|
|
29
|
%
|
|
|
|
|
|
|
|
|
|
Total Net Sales
|
|
|
100
|
%
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
Recent
Developments
On October 26, 2009, we announced our financial results for
the third fiscal quarter of 2009. The following is a summary of
our unaudited results of operations for the three and nine
fiscal months ended October 2, 2009. This summary is not
intended to be a comprehensive statement of our unaudited
financial results for these periods. Full financial results will
be included in our Quarterly Report on
Form 10-Q
for the fiscal quarter ended October 2, 2009, which is
expected to be filed with the SEC on or about November 11,
2009.
Our consolidated net sales in the third fiscal quarter of 2009
totaled $1,081.8 million compared to $1,626.0 million in
the third fiscal quarter of 2008, a decrease of 33.5%. Selling,
general and administrative, or SG&A, expenses in the third
fiscal quarter of 2009 totaled $81.3 million compared to
$96.0 million in the third fiscal quarter of 2008, a
decrease of 15.3%.
9
Interest expense was $21.4 million for the third fiscal
quarter of 2009 compared to $26.4 million for the third
fiscal quarter of 2008. On January 1, 2009, we
retrospectively implemented the new accounting standard, FSP
APB 14-1,
Accounting for Convertible Debt Instruments That May Be
Settled in Cash Upon Conversion (Including Partial Cash
Settlement),
for our 2012 notes and our 0.875% senior
convertible notes due 2013, or the 2013 notes. As a result of
this change, $10.1 million and $9.1 million of
non-cash interest expense was recorded in the third fiscal
quarters of 2009 and 2008, respectively. The effective tax rate
for the third fiscal quarter of 2009 was 16.8% compared to 31.5%
for the third fiscal quarter of 2008.
Operating income for the third fiscal quarter of 2009 was
$42.8 million compared to $113.8 million in the third
fiscal quarter of 2008. Net income attributable to our common
shareholders for the third fiscal quarter of 2009 was
$16.4 million compared to $50.5 million in the third
fiscal quarter of 2008. Diluted earnings per share were $0.31
for the third fiscal quarter of 2009 compared to $0.94 per share
for the third fiscal quarter of 2008, based on 52.9 million
and 53.7 million weighted average diluted shares
outstanding as of October 2, 2009 and September 26,
2008, respectively.
Consolidated net sales in the nine fiscal months ended
October 2, 2009 totaled $3,256.2 million compared to
$4,937.2 million in the nine fiscal months ended
September 26, 2008, a 34.0% decrease. SG&A expenses
for the nine fiscal months ended October 2, 2009 totaled
$258.0 million compared to $290.1 million for the nine
fiscal months ended September 26, 2008, a decrease of
11.1%. Operating income for the nine fiscal months ended
October 2, 2009 totaled $230.3 million compared to
$359.7 million in the nine fiscal months ended
September 26, 2008. The effective tax rate for the nine
fiscal months ended October 2, 2009 was 30.0% compared to
34.1% in the nine fiscal months ended September 26, 2008.
Net income attributable to our common shareholders for the nine
fiscal months ended October 2, 2009 was $117.6 million
compared to $178.1 million in the nine fiscal months ended
September 26, 2008. Diluted earnings per share were $2.23
for the nine fiscal months ended October 2, 2009 compared to
$3.27 per share for the nine fiscal months ended
September 26, 2008, based on 52.8 million and
54.6 million weighted average diluted shares outstanding as
of October 2, 2009 and September 26, 2008,
respectively.
We also indicated, looking ahead, that we expect the developing
economies we serve to perform relatively better than the
developed economies of the world. We believe that business
conditions in Latin America, Africa and Southeast Asia are being
buoyed by commodities, mining and infrastructure investment,
aided by somewhat better credit markets. In the U.S., we expect
continuing declines in non-residential construction spending as
well as a residential construction market that will recover
slowly. These are direct or indirect end markets for many of our
products. After years of significant growth, Spain continues to
suffer from a severe correction in its construction markets and
nearly 20% unemployment and we do not expect that this market
will return to growth quickly. With industrial companies in the
United States using less electricity for the last two years, we
do not expect any significant increase in electric utility
spending on the distribution network next year. However, we
expect the U.S. transmission and wind farm segments to
begin to improve as the spending related to the Stimulus Bill in
these areas increases over the next year. We expect that the
continuing impact of weak demand and rapidly increasing metal
costs will further pressure earnings in the fourth fiscal
quarter of 2009. As a result of these ongoing weak conditions,
we plan to reduce production further in the fourth fiscal
quarter of 2009. This also will negatively impact our earnings
in the fourth fiscal quarter of 2009 and, as a result of the
foregoing, we expect that earnings per share for the fourth
quarter of 2009 will be substantially lower than for the third
quarter. We are encouraged by early indicators of economic
recovery in some areas beginning to be discussed by major
industrial companies but caution that demand for many of our
products may lag the general economy, construction in
particular, by six to 18 months.
* * *
General Cable Corporation is a Delaware corporation. Our
principal executive offices are located at 4 Tesseneer
Drive, Highland Heights, Kentucky
41076-9753,
and our telephone number is
(859) 572-8000.
Our website is located at
http://www.generalcable.com.
Except as to certain of our SEC filings that appear on our
website and are incorporated by reference into this prospectus,
the information on our website is not part of, or incorporated
by reference into, this prospectus.
10
Summary
of the Exchange Offer
The following summary contains basic information about the
exchange offer and is not intended to be complete. It does not
contain all the information that may be important to you. For a
more complete understanding of the terms of the exchange offer,
see The Exchange Offer.
|
|
|
The offeror
|
|
General Cable Corporation
|
|
Securities subject to the exchange offer
|
|
We are making the exchange offer for all of our outstanding
1.00% senior convertible notes due 2012 and the related
guarantees of each of our subsidiaries that is a guarantor under
the 2012 notes.
|
|
The exchange offer
|
|
Upon the terms and subject to the conditions set forth in this
prospectus and the related letter of transmittal, we are
offering to exchange $925 principal amount of our new 2029 notes
for each $1,000 principal amount of our 2012 notes validly
tendered and not validly withdrawn pursuant to the exchange
offer. We will also pay in cash accrued and unpaid interest on
the 2012 notes accepted for exchange from the last interest
payment date to, but excluding, the settlement date.
|
|
|
|
Subject to the satisfaction or waiver of all conditions to the
exchange offer, 2012 notes that are validly tendered and not
validly withdrawn will be accepted for exchange in accordance
with the terms of the exchange offer. See The Exchange
Offer for more information on the terms of the exchange
offer.
|
|
Purpose of the exchange offer
|
|
The purpose of the exchange offer is to provide us with
financial and strategic flexibility by extending the maturity of
a portion of our debt represented by the 2012 notes, which
mature on October 15, 2012.
|
|
Market trading
|
|
The 2012 notes are not listed for trading on any national
securities exchange. Investors are urged to consult with their
bank, broker or financial advisor in order to obtain information
regarding the market prices for the 2012 notes. We do not intend
to have the 2029 notes listed for trading on any national
securities exchange.
|
|
|
|
Our common stock is traded on the New York Stock Exchange under
the symbol BGC. The last reported sale price of our
common stock on October 26, 2009 was $34.44 per share.
|
|
Expiration date
|
|
The expiration time of the exchange offer will be midnight, New
York City time, on November 24, 2009, unless extended or earlier
terminated by us. As used in this prospectus, the term
expiration date refers to such date and time or, if
we extend the exchange offer, the latest date and time to which
we extend the exchange offer. If the initial conversion price is
set at the minimum conversion price because the average VWAP
otherwise would result in an initial conversion price of less
than the minimum conversion price, we will extend the exchange
offer until midnight, New York City time, on the second trading
day following the previously scheduled expiration date to permit
holders to tender or withdraw their 2012 notes during those
days. Any changes in the prices of our common stock on those
additional days of the exchange offer will not,
|
11
|
|
|
|
|
however, affect the initial conversion price or the initial
conversion ratio.
|
|
Settlement date
|
|
The settlement of the exchange offer will occur promptly after
the expiration date. We expect that the settlement date will
occur within three New York Stock Exchange trading days after
the expiration date.
|
|
Conditions to the exchange offer
|
|
The exchange offer is subject to the conditions discussed under
The Exchange Offer Conditions to the Exchange
Offer, including, among other things, that the
registration statement of which this prospectus forms a part
must have been declared effective and not being subject to a
stop order or any proceedings for that purpose and is also
conditioned on at least $100.0 million aggregate principal
amount of the 2012 notes being validly tendered and not validly
withdrawn as of the expiration date. We will not be required to
accept for exchange any outstanding 2012 notes tendered, subject
to the terms of the exchange offer, and may terminate the
exchange offer if any condition of the exchange offer as
described under The Exchange Offer Conditions
to the Exchange Offer is not satisfied on or prior to the
expiration date. We will not be required to, but we reserve the
right to, waive any of the conditions to the exchange offer,
other than the non-waivable conditions described under The
Exchange Offer Conditions to the Exchange
Offer.
|
|
Extensions, waivers, amendments and termination
|
|
Subject to applicable law, we reserve the right to
(1) extend the exchange offer; (2) waive any and all
conditions to or amend the exchange offer in any respect (except
as to the condition that the registration statement of which
this prospectus forms a part having been declared effective and
not being subject to a stop order or any proceedings for that
purpose and the condition that at least $100.0 million
aggregate principal amount of the 2012 notes are validly
tendered and not validly withdrawn as of the expiration date,
which conditions we cannot waive); or (3) terminate the
exchange offer if any condition to the exchange offer has not
been satisfied or waived. Any extension, waiver, amendment or
termination will be followed as promptly as practicable by a
public announcement thereof. In the case of any extension of the
expiration date, such announcement will be issued no later than
9:00 a.m., New York City time, on the next business day
after the last previously scheduled expiration date. See
The Exchange Offer Expiration Date; Extension;
Termination; Amendment.
|
|
Summary comparison of 2012 notes to 2029 notes
|
|
There are material differences between the terms of the 2029
notes and the 2012 notes. See Summary Comparison of the
2029 Notes to the 2012 Notes for a summary comparison of
certain of the material terms of the 2029 notes and the 2012
notes.
|
|
Procedures for tendering 2012 notes
|
|
You may tender your 2012 notes by transferring them through
DTCs Automated Tender Offer Program or following the other
procedures described under The Exchange Offer
Procedures for
|
12
|
|
|
|
|
Tendering 2012 Notes and The Exchange Offer
Book-Entry Transfer.
|
|
|
|
For further information, please call the information agent at
the telephone numbers set forth on the back cover of this
prospectus or consult your broker, dealer, commercial bank,
trust company or other nominee for assistance.
|
|
Withdrawal rights and non-acceptance of tendered 2012 notes
|
|
You may withdraw your tendered 2012 notes at any time on or
prior to the expiration date. In addition, if not previously
returned, you may withdraw 2012 notes that you tender that have
not been accepted by us for exchange after expiration of 40
business days from October 27, 2009. In the event that
tendered 2012 notes are not withdrawn or otherwise not accepted
by us for exchange, such 2012 notes will be promptly returned to
such holders or credited to such holders DTC account in
the same manner as tendered to us, unless the holder has
indicated other delivery instructions in the related letter of
transmittal or agents message. See The Exchange
Offer Withdrawal Rights.
|
|
Required approvals
|
|
We are not aware of any regulatory approvals necessary to
complete the exchange offer, other than compliance with
applicable securities laws.
|
|
No appraisal rights
|
|
Holders of 2012 notes have no appraisal rights in connection
with the exchange offer.
|
|
Fees and commissions
|
|
You are not required to pay fees or commissions to us, the
dealer managers, the exchange agent or the information agent in
connection with the exchange offer. If your 2012 notes are held
through a broker or other nominee who tenders the 2012 notes on
your behalf (other than those tendered through a dealer
manager), your broker may charge you a commission for doing so.
You should consult with your broker or nominee to determine
whether any charges will apply.
|
|
Consequences of failure to exchange the 2012 notes
|
|
Any 2012 notes that are not exchanged in the exchange offer will
remain outstanding and continue to accrue interest and will be
entitled to the rights and benefits their holders have under the
indenture governing the 2012 notes. If a sufficiently large
aggregate principal amount of 2012 notes does not remain
outstanding after the exchange offer, the trading markets for
the remaining outstanding aggregate principal amount of 2012
notes may be less liquid. See The Exchange
Offer Consequences of Failure to Participate in the
Exchange Offer and Risk Factors.
|
|
Material U.S. federal income tax considerations
|
|
See Material U.S. Federal Income Tax Considerations
for a summary of material U.S. federal income tax considerations
regarding the exchange offer.
|
|
Dealer managers
|
|
The dealer managers for the exchange offer are Goldman,
Sachs & Co. and J.P. Morgan Securities Inc. The
addresses and telephone numbers for the dealer managers are set
forth on the back cover of this prospectus.
|
13
|
|
|
Exchange agent and information agent
|
|
D.F. King & Co., Inc. has been appointed as the
exchange agent and the information agent for the exchange offer.
D.F. Kings address and telephone numbers are set forth on
the back cover of this prospectus.
|
|
Further information
|
|
Additional copies of this prospectus, the related letter of
transmittal and other materials related to the exchange offer,
including the form of notice of withdrawal, may be obtained by
contacting the information agent. For questions regarding the
procedures to be followed for tendering your 2012 notes, please
contact the information agent. For all other questions, please
contact the dealer managers. The contact information for each of
these parties is set forth on the back cover of this prospectus.
|
14
Summary
of the 2029 Notes
The following summary contains basic information about the
2029 notes and is not intended to be complete. It does not
contain all the information that may be important to you. For a
more complete understanding of the 2029 notes, please refer to
the section of this prospectus entitled Description of the
2029 Notes.
|
|
|
The 2029 notes
|
|
$439,375,000 aggregate principal amount of subordinated
convertible notes due 2029.
|
|
Maturity date
|
|
November 15, 2029.
|
|
Interest rate
|
|
Until November 15, 2019, the 2029 notes will bear cash
interest at the rate of 4.50% per year, and after
November 15, 2019, the 2029 notes will bear cash interest
at the rate of 2.25% per year.
|
|
Contingent interest
|
|
Beginning with the six-month interest period commencing
November 15, 2019, contingent interest on the 2029 notes
will be payable during any six-month interest period if the
trading price of the 2029 notes for each of the five trading
days ending on the second trading day immediately preceding the
first day of the applicable six-month interest period equals or
exceeds 120% of the principal amount of the 2029 notes.
|
|
|
|
During any six-month period when contingent interest shall be
payable, the contingent interest payable per $1,000 principal
amount of the 2029 notes will equal 0.50% of the average trading
price of $1,000 principal amount of 2029 notes during the five
trading days ending on the second trading day immediately
preceding the first day of the applicable six-month interest
period.
|
|
Interest payment dates
|
|
Interest is payable on the 2029 notes semi-annually in arrears
in cash on May 15 and November 15 of each year, beginning on
May 15, 2010, to the holders of record at the close of
business on the preceding May 1 and November 1,
respectively.
|
|
Ranking
|
|
The payment of the principal, any premium and interest
(including contingent and additional interest, if any) on the
2029 notes, including amounts payable on any redemption or
repurchase, and any cash payable upon conversion of the 2029
notes, will be subordinated to the prior payment in full of all
of the companys existing and future senior debt, as
defined in the 2029 note indenture. The 2029 notes will also be
effectively subordinated to all secured indebtedness of the
company to the extent of the value of the assets securing such
indebtedness and will also be effectively subordinated to the
existing and future debt or other liabilities of our
subsidiaries, including trade payables.
|
|
|
|
As of July 3, 2009, we had $1,253.1 million in total
debt outstanding (net of $172.9 million of debt discount),
including $129.8 million in secured debt, and the ability
to incur up to $305.6 million of additional secured debt
under the companys senior secured credit facility and
$106.0 million in secured debt under our foreign secured
credit facilities. In addition, as of July 3, 2009, our
subsidiaries had $1,411.5 million in liabilities, excluding
consolidated indebtedness but including trade payables, all of
which liabilities will be effectively senior to the 2029 notes.
|
|
Conversion price and conversion rate
|
|
Holders may convert their 2029 notes into cash and, if
applicable, shares of our common stock, prior to the close of
business on the
|
15
|
|
|
|
|
trading day immediately preceding the maturity date, only if the
conditions for conversion described below under
Exercise of Conversion Rights are
satisfied. The initial conversion price will equal 122.5% of the
average VWAP, rounded to four decimal places; provided that in
no event will the initial conversion price be less than $36.75.
The average VWAP means the arithmetic average, as
determined by us, of the daily VWAP for each trading day during
the ten trading day period ending on and including the
expiration date for the exchange offer, rounded to four decimal
places. The daily VWAP for any trading day means the
per share volume weighted average price of our common stock on
that day as displayed under the heading Bloomberg VWAP on
Bloomberg Page BGC.N <Equity> AQR (or its
equivalent successor page if such page is not available) in
respect of the period from the scheduled open of trading on the
relevant trading day until the scheduled close of trading on the
relevant trading day (or if such volume weighted average price
is unavailable, the market price of one share of our common
stock on such trading day determined, using a volume weighted
average method, by a nationally recognized investment banking
firm retained by us for this purpose). The initial conversion
rate of the 2029 notes will be specified in the 2029 note
indenture, and will equal $1,000 divided by the initial
conversion price, rounded to four decimal places.
|
|
|
|
Throughout the exchange offer, the indicative average VWAP and
the resulting indicative initial conversion price and indicative
initial conversion rate with respect to the 2029 notes will be
available at
http://www.dfking.com/generalcable
and from the information agent at one of its numbers listed on
the back cover page of this prospectus. We will announce the
definitive initial conversion price and the definitive initial
conversion rate with respect to the 2029 notes by
4:30 p.m., New York City time, on the expiration date, and
the definitive initial conversion price and the definitive
initial conversion rate also will be available by that time at
http://www.dfking.com/generalcable
and from the information agent.
|
|
|
|
The table below provides examples of the initial conversion
price and the initial conversion rate per $1,000 principal
amount of the 2029 notes assuming that the average VWAP reaches
specified levels.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Initial Conversion
|
|
|
Initial
|
|
Rate per $1,000
|
Sample Average
|
|
Conversion
|
|
Principal Amount
|
VWAP
|
|
Price
|
|
of 2029 Notes
|
|
|
$28.00
|
|
|
|
$36.7500
|
|
|
|
27.2109
|
|
|
$29.00
|
|
|
|
$36.7500
|
|
|
|
27.2109
|
|
|
$30.00
|
|
|
|
$36.7500
|
|
|
|
27.2109
|
|
|
$31.00
|
|
|
|
$37.9750
|
|
|
|
26.3331
|
|
|
$32.00
|
|
|
|
$39.2000
|
|
|
|
25.5102
|
|
|
$33.00
|
|
|
|
$40.4250
|
|
|
|
24.7372
|
|
|
$34.00
|
|
|
|
$41.6500
|
|
|
|
24.0096
|
|
|
$35.00
|
|
|
|
$42.8750
|
|
|
|
23.3236
|
|
|
$36.00
|
|
|
|
$44.1000
|
|
|
|
22.6757
|
|
|
$37.00
|
|
|
|
$45.3250
|
|
|
|
22.0629
|
|
|
$38.00
|
|
|
|
$46.5500
|
|
|
|
21.4823
|
|
|
$39.00
|
|
|
|
$47.7750
|
|
|
|
20.9314
|
|
16
|
|
|
Exercise of conversion rights
|
|
Holders may convert their 2029 notes prior to the close of
business on the trading day before the stated maturity date
based on the applicable conversion rate only under the following
circumstances:
|
|
|
|
during any calendar quarter beginning after
March 31, 2010, and only during such calendar quarter, if
the closing price of our common stock for at least 20 trading
days in the 30 consecutive trading days ending on the last
trading day of the immediately preceding calendar quarter is
more than 130% of the conversion price per share (which
conversion price per share is equal to $1,000 divided by the
then applicable conversion rate);
|
|
|
|
during the five business day period after any period
of five consecutive trading days in which the trading price per
$1,000 principal amount of 2029 notes for each day of that
period was less than 98% of the product of the closing price of
our common stock for each day of that period and the then
applicable conversion rate;
|
|
|
|
if specified distributions to holders of our common
stock are made, or specified corporate transactions occur;
|
|
|
|
if a fundamental change occurs, as defined in the
2029 note indenture;
|
|
|
|
if we elect to redeem 2029 notes, the 2029 notes to
be redeemed may be converted, in full or in part, at any time
from the date notice of redemption is given by us to holders
until the close of business on the trading day immediately
preceding the redemption date; or
|
|
|
|
at any time beginning on August 31, 2029 and
ending at the close of business on the business day immediately
preceding the maturity date.
|
|
|
|
Upon conversion of each $1,000 principal amount of 2029 notes, a
holder will receive, in lieu of common stock, an amount in cash
equal to the lesser of (1) $1,000 or (2) the
conversion value, determined in the manner set forth in this
prospectus, of a number of shares equal to the conversion rate.
If the conversion value exceeds $1,000, we also will deliver, at
our election, cash or common stock or a combination of cash and
common stock with respect to the value of such excess amount.
|
|
|
|
Upon any conversion, subject to certain exceptions, you will not
receive any separate cash payment representing accrued and
unpaid interest (including contingent and additional interest,
if any), and such accrued and unpaid interest (including
contingent and additional interest, if any) to the conversion
date will be deemed to be paid in full with the shares of our
common stock issued or cash paid upon conversion rather than
cancelled, extinguished or forfeited. See Description of
the 2029 Notes Conversion Rights.
|
|
Make whole premium
|
|
If a holder elects to convert its 2029 notes in connection with
certain transactions occurring on or before the maturity date
that constitute a change of control, as defined in the 2029 note
indenture, we will pay, as and to the extent described in this
prospectus, a
|
17
|
|
|
|
|
make whole premium on the 2029 notes converted in connection
with such transactions by increasing the conversion rate
applicable to the 2029 notes.
|
|
|
|
The amount of the increase in the applicable conversion rate, if
any, will be based on the price of our common stock paid, or
deemed paid, in the relevant transaction and the effective date
of the fundamental change. A description of how the increase in
the applicable conversion rate will be determined and a table
showing the increase that would apply at various common stock
prices and fundamental change effective dates are set forth
under Description of the 2029 Notes
Determination of Make Whole Premium.
|
|
Optional redemption by us
|
|
At any time on or after November 15, 2019, we may redeem
all or a part of the 2029 notes for cash at a redemption price
equal to 100% of the principal amount of the 2029 notes, plus
accrued and unpaid interest (including contingent interest and
additional interest, if any) to, but not including, the
redemption date, if the last reported sale price of our common
stock has been at least 150% of the conversion price then in
effect for at least 20 trading days during the 30 consecutive
trading day period immediately preceding the date on which we
provide notice of redemption.
|
|
|
|
In addition, at any time on or prior to November 15, 2010,
if a tax triggering event has occurred, we may redeem all or a
part of the 2029 notes for cash at a redemption price equal to
101.5% of the principal amount thereof, plus, if the redemption
conversion value as of the redemption date of the 2029 notes
being redeemed exceeds their initial conversion value, 95% of
the amount determined by subtracting the initial conversion
value of such 2029 notes from their redemption conversion value
as of the redemption date, plus accrued and unpaid interest
(including contingent and additional interest, if any) to, but
excluding, the redemption date. See Description of the
2029 Notes Optional Redemption.
|
|
Purchase of 2029 notes by us for cash at the option of holders
upon a fundamental change
|
|
Upon a fundamental change, as defined in the 2029 note
indenture, holders will have the right to require us to purchase
for cash all or any portion of their 2029 notes at a price equal
to 100% of the principal amount of the 2029 notes plus accrued
and unpaid interest (including contingent interest and
additional interest), if any, to, but excluding, the fundamental
change purchase date. See Description of the 2029
Notes Purchase of 2029 Notes by Us for Cash at the
Option of Holders Upon a Fundamental Change.
|
|
Use of proceeds
|
|
We will not receive any cash proceeds from the exchange of 2029
notes for 2012 notes pursuant to the exchange offer.
|
|
DTC eligibility
|
|
The 2029 notes will be issued in fully registered book-entry
form and will be initially represented by a permanent global
note without coupons. A global note will be deposited with a
custodian for, and registered in the name of a nominee of, DTC
in New York, New York. Beneficial interests in the global note
will be shown on, and transfers thereof will be effected only
through, records maintained by DTC and its direct and indirect
participants, and your interest in
|
18
|
|
|
|
|
the global note may not be exchanged for certificated notes,
except in limited circumstances described in this prospectus.
See Description of the 2029 Notes Global
Notes; Book-Entry; Form.
|
|
Form and denomination
|
|
The 2029 notes will be issued in minimum denominations of $1,000
and integral multiples thereof.
|
|
NYSE trading symbol for common stock
|
|
Our common stock is listed on the New York Stock Exchange under
the symbol BGC.
|
|
Material U.S. federal income tax considerations
|
|
The 2029 notes and the common stock issuable upon conversion of
the 2029 notes will be subject to special and complex U.S.
federal income tax rules. Holders are urged to consult their own
tax advisors with respect to the federal, state, local and
foreign tax consequences of purchasing, owning, converting and
disposing of the 2029 notes, and owning and disposing of the
common stock issuable upon conversion of the 2029 notes. See
Risk Factors You should consider the U.S.
federal income tax consequences of owning 2029 notes and
Material U.S. Federal Income Tax Considerations.
|
|
Risk factors
|
|
See Risk Factors beginning on page 28 of this
prospectus and other information included or incorporated by
reference into this prospectus for a discussion of the factors
you should consider carefully before deciding to exchange your
2012 notes and invest in the 2029 notes.
|
19
Summary
of Comparison of the 2029 Notes and the 2012 Notes
A summary comparison of certain material terms of the 2029
notes and the 2012 notes is provided in the table below. The
table below is qualified in its entirety by the information
contained elsewhere in this prospectus and the indentures
governing the 2029 notes and the 2012 notes, copies of which
have been filed with the SEC as exhibits to the registration
statement of which this prospectus forms a part. For a more
detailed comparison of the terms of the 2029 notes and the 2012
notes, see Comparison of the 2029 Notes to the 2012
Notes.
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
Interest rate
|
|
The 2029 notes will bear cash interest at the rate of 4.50% per
year until November 15, 2019, and thereafter until maturity will
bear cash interest at the rate of 2.25% per year. Interest on
the 2029 notes will be payable semi-annually in arrears on May
15 and November 15 of each year, commencing on May 15, 2010.
|
|
The 2012 notes bear cash interest at the rate of 1.00% per
year. Interest on the 2012 notes is payable semi-annually in
arrears on April 15 and October 15 of each year.
|
|
|
|
|
|
Contingent interest
|
|
Beginning with the six-month period commencing on November 15,
2019, we will pay contingent interest in cash during any
six-month interest period if the trading price of the 2029 notes
for each of the five trading days ending on the second trading
day immediately preceding the first day of the applicable
six-month interest period equals or exceeds 120% of the
principal amount of the 2029 notes.
During any interest period when contingent interest is payable,
the contingent interest payable per $1,000 principal amount of
2029 notes will equal 0.50% of the average trading price of
$1,000 in principal amount of the 2029 notes during the five
trading days ending on the second trading day immediately
preceding the first day of the applicable six-month interest
period, as more fully described in this prospectus.
|
|
None.
|
|
|
|
|
|
Maturity
|
|
The 2029 notes will mature on November 15, 2029.
|
|
The 2012 notes will mature on October 15, 2012.
|
|
|
|
|
|
|
|
|
|
|
20
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
Guarantees
|
|
None.
|
|
The 2012 notes are guaranteed on an unsecured senior basis by
each of our subsidiaries that is a borrower or a guarantor under
specified senior credit facilities, our 2013 notes, our senior
floating rate notes due 2015, or the 2015 notes, or our
7.125% senior fixed rate notes due 2017, or the 2017 notes.
|
|
|
|
|
|
Ranking
|
|
The 2029 notes will be unsecured obligations subordinated in
right of payment to our existing and future senior indebtedness,
will be effectively subordinated in right of payment to all of
our secured indebtedness to the extent of the value of the
assets securing such indebtedness and will be effectively
subordinated in right of payment to all existing and future
indebtedness and other liabilities of our subsidiaries,
including trade payables.
|
|
The 2012 notes and related guarantees are our unsecured senior
obligations, are effectively subordinated in right of payment to
all of our and our guarantor subsidiaries existing and
future secured indebtedness to the extent of the value of the
assets securing such indebtedness, and are effectively
subordinated in right of payment to all existing and future
indebtedness and other liabilities of our non-guarantor
subsidiaries, including trade payables.
|
|
|
|
|
|
Conversion rights
|
|
Holders will be able to convert their 2029 notes prior to the
close of business on the trading day before November 15, 2029
based on the applicable conversion rate only under the following
circumstances:
during any calendar quarter commencing
after March 31, 2010, if the closing price of our common stock
for at least 20 trading days in the 30 consecutive trading days
ending on the last trading day of the immediately preceding
calendar quarter is more than 130% of the conversion price per
share;
|
|
Holders may convert their 2012 notes prior to the close of
business on the business day before October 15, 2012 based on
the applicable conversion rate only under the following
circumstances:
during any calendar quarter,
if the closing price of our common stock for at least
20 trading days in the 30 consecutive trading
days ending on the last trading day of the immediately
preceding calendar quarter is more than 130% of the
conversion price per share;
|
|
|
|
|
|
|
|
during the five business day period
after any period of five consecutive trading days in which the
trading price per $1,000 principal amount of 2029 notes for each
day of that period
|
|
during the five business day period
after any period of five consecutive trading days in which the
trading price per $1,000 principal amount of 2012 notes for each
day of that period
|
21
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
|
|
|
|
|
|
|
was less than 98% of the product of the closing price of our
common stock for each day of that period and the then applicable
conversion rate;
if specified distributions to holders
of our common stock are made;
|
|
was less than 98% of the product of the closing price of our
common stock for each day of that period and the then applicable
conversion rate;
if specified distributions to holders
of our common stock are made;
|
|
|
|
|
|
|
|
if we are a party to any transaction
or event (including any consolidation or merger) pursuant to
which all or substantially all shares of our common stock would
be converted into cash, securities or other property;
|
|
if we are a party to any transaction
or event (including any consolidation or merger) pursuant to
which all or substantially all shares of our common stock would
be converted into cash, securities or other property;
|
|
|
|
|
|
|
|
at any time beginning 15 days
before the anticipated effective date of a fundamental change
and until the trading day prior to the fundamental change
purchase date, if a fundamental change, as defined in the 2029
note indenture, occurs;
|
|
at any time beginning 15 days
before the anticipated effective date of a fundamental change
and until the trading day prior to the fundamental change
purchase date, if a fundamental change, as defined in the 2012
note indenture, occurs; or
|
|
|
|
|
|
|
|
if we elect to redeem 2029 notes, such
2029 notes to be redeemed may be converted, in full or in part,
at any time from the date notice of redemption is given by us to
holders until the close of business on the trading day
immediately preceding the redemption date; or
at any time beginning on August 31, 2029
and ending at the close of business on the trading day
immediately preceding the November 15, 2029 maturity date
for the 2029 notes.
Subject to the conditions to conversion being satisfied, the
2029 notes will be convertible into cash and, in certain
circumstances, shares of our common stock at the conversion
price and conversion
|
|
at any time beginning on September 15,
2012 and ending at the close of business on the business day
immediately preceding the October 15, 2012 maturity date
for the 2012 notes.
Subject to the conditions to conversion being satisfied, the
2012 notes are convertible into cash and, in certain
circumstances, shares of our common stock, based on a conversion
rate of 11.9142 shares of our common stock per $1,000
principal amount of 2012 notes. This is equivalent to an
initial conversion price of approximately $83.93 per share of
common stock. The conversion rate, and thus the conversion
price, may be adjusted under certain circumstances.
|
22
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
|
|
|
|
|
|
|
rate of the 2029 notes. The initial conversion price will equal
122.5% of the average VWAP, rounded to four decimal places;
provided that in no event will the initial conversion price be
less than $36.75. The initial conversion rate of the 2029 notes
will be specified in the 2029 note indenture, and will equal
$1,000 divided by the initial conversion price, rounded to four
decimal places. In no event will the initial conversion rate
exceed 27.2109 shares of our common stock per $1,000
principal amount of 2029 notes. The conversion rate, and thus
the conversion price, may be adjusted under certain
circumstances.
|
|
|
|
|
|
|
|
Optional redemption
|
|
The 2029 notes will be subject to redemption for cash by us at
any time on or after November 15, 2019, in whole or in part, at
a redemption price equal to 100% of the principal amount of the
2029 notes, plus accrued and unpaid interest (including
contingent and additional interest, if any) to, but not
including, the redemption date if the last reported sale price
of our common stock has been at least 150% of the conversion
price then in effect for at least 20 trading days during the 30
consecutive trading day period immediately preceding the date on
which we provide notice of redemption.
|
|
The 2012 notes are not subject to redemption.
|
|
|
|
|
|
|
|
The 2029 notes will also be subject to redemption for cash by us
at any time on or prior to November 15, 2010, in whole or in
part, if a tax triggering event (as defined in this prospectus)
has occurred, at a redemption price equal to 101.5% of the
principal amount thereof, plus, if the
|
|
|
|
|
|
|
|
|
|
|
|
|
23
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
|
|
|
|
|
|
|
redemption conversion value (as defined in this prospectus) as
of the redemption date of the 2029 notes being redeemed exceeds
their initial conversion value (as defined in this prospectus),
95% of the amount determined by subtracting the initial
conversion value of such 2029 notes from their redemption
conversion value as of the redemption date, plus accrued and
unpaid interest (including additional interest, if any) to, but
excluding, the redemption date.
|
|
|
|
|
|
|
|
Purchase of notes by us for cash at the option of holders upon a
fundamental change
|
|
Upon specified fundamental changes, holders will have the right
to require us to purchase for cash all or any portion of their
2029 notes at a price equal to 100% of the principal amount of
the 2029 notes, plus accrued and unpaid interest (including
contingent and additional interest), if any, to, but excluding,
the fundamental change purchase date.
|
|
Upon specified fundamental changes, holders will have the right
to require us to purchase for cash all or any portion of their
2012 notes at a price equal to 100% of the principal amount of
the 2012 notes, plus accrued and unpaid interest, if any, to,
but excluding, the fundamental change purchase date.
|
|
|
|
|
|
Listing
|
|
We do not intend to list the 2029 notes on any national
securities exchange or to have the 2029 notes quoted on any
automated quotation system.
|
|
The 2012 notes are not listed on any national securities
exchange or quoted on any automated quotation system.
|
24
Summary
Consolidated Financial Information
The summary consolidated financial information for the years
ended December 31, 2006, 2007 and 2008 and as of
December 31, 2007 and 2008 was derived from our audited
consolidated financial statements incorporated by reference into
this prospectus. The summary consolidated financial information
for the years ended December 31, 2004 and 2005 and as of
December 31, 2004 and 2005 was derived from our audited
consolidated financial statements that are not incorporated by
reference into this prospectus. The summary consolidated
financial information for the six fiscal months ended
June 27, 2008 and July 3, 2009 and as of July 3,
2009 was derived from our unaudited consolidated financial
statements incorporated by reference into this prospectus,
which, in our opinion, include all adjustments (consisting of
normal recurring adjustments) necessary for a fair statement of
the financial information for such periods. The financial
information for the years ended and as of December 31,
2006, 2007 and 2008, and for the six fiscal months ended
June 27, 2008, reflects the retrospective implementation of
Financial Accounting Standards Board Staff Position No. APB
14-1,
Accounting for Convertible Debt Instruments That May Be
Settled in Cash Upon Conversion (Including Partial Cash
Settlement),
as to the 2012 notes and the 2013 notes.
The following summary financial information presented below
should be read in conjunction with Managements
Discussion and Analysis of Financial Condition and Results of
Operations and our consolidated financial statements and
the notes thereto incorporated by reference from our Current
Report on
Form 8-K
filed with the SEC on August 12, 2009 and our Quarterly
Report on
Form 10-Q
for the fiscal quarter ended July 3, 2009 filed with the
SEC on August 12, 2009. The historical financial
information presented below may not be indicative of our future
performance.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Fiscal Months Ended
|
|
|
|
Years Ended December 31,
|
|
|
June 27,
|
|
|
July 3,
|
|
|
|
2004
|
|
|
2005(1)
|
|
|
2006(2)(3)
|
|
|
2007(2)(4)(5)
|
|
|
2008(2)(4)
|
|
|
2008(2)(4)
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
(Unaudited)
|
|
|
|
(In millions, except per share information)
|
|
|
Statement of Operations Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
1,970.7
|
|
|
$
|
2,380.8
|
|
|
$
|
3,665.1
|
|
|
$
|
4,614.8
|
|
|
$
|
6,230.1
|
|
|
$
|
3,311.2
|
|
|
$
|
2,174.4
|
|
Cost of sales
|
|
|
1,756.0
|
|
|
|
2,110.1
|
|
|
|
3,194.1
|
|
|
|
3,952.1
|
|
|
|
5,427.7
|
|
|
|
2,871.2
|
|
|
|
1,810.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
214.7
|
|
|
|
270.7
|
|
|
|
471.0
|
|
|
|
662.7
|
|
|
|
802.4
|
|
|
|
440.0
|
|
|
|
364.2
|
|
Selling, general and administrative expenses
|
|
|
158.2
|
|
|
|
172.2
|
|
|
|
235.1
|
|
|
|
296.6
|
|
|
|
381.0
|
|
|
|
194.1
|
|
|
|
176.7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
56.5
|
|
|
|
98.5
|
|
|
|
235.9
|
|
|
|
366.1
|
|
|
|
421.4
|
|
|
|
245.9
|
|
|
|
187.5
|
|
Other income (expense)
|
|
|
(1.2
|
)
|
|
|
(0.5
|
)
|
|
|
(0.1
|
)
|
|
|
(3.4
|
)
|
|
|
(27.2
|
)
|
|
|
(0.4
|
)
|
|
|
10.1
|
|
Interest expense, net
|
|
|
(35.9
|
)
|
|
|
(37.0
|
)
|
|
|
(36.7
|
)
|
|
|
(48.5
|
)
|
|
|
(91.8
|
)
|
|
|
(42.5
|
)
|
|
|
(42.8
|
)
|
Loss on extinguishment of debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(25.3
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income before income taxes
|
|
|
19.4
|
|
|
|
61.0
|
|
|
|
199.1
|
|
|
|
288.9
|
|
|
|
302.4
|
|
|
|
203.0
|
|
|
|
154.8
|
|
Income tax benefit (provision)
|
|
|
18.1
|
|
|
|
(21.8
|
)
|
|
|
(65.3
|
)
|
|
|
(97.6
|
)
|
|
|
(104.9
|
)
|
|
|
(71.2
|
)
|
|
|
(49.5
|
)
|
Equity in net earnings of affiliated companies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.4
|
|
|
|
4.6
|
|
|
|
2.8
|
|
|
|
0.3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income including noncontrolling interest
|
|
|
37.5
|
|
|
|
39.2
|
|
|
|
133.8
|
|
|
|
191.7
|
|
|
|
202.1
|
|
|
|
134.6
|
|
|
|
105.6
|
|
Income on disposal of discontinued operations
|
|
|
0.4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less: Series A preferred stock dividends
|
|
|
(6.0
|
)
|
|
|
(22.0
|
)
|
|
|
(0.3
|
)
|
|
|
(0.3
|
)
|
|
|
(0.3
|
)
|
|
|
(0.2
|
)
|
|
|
(0.2
|
)
|
Less: Net income attributable to noncontrolling interest
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.2
|
)
|
|
|
(13.1
|
)
|
|
|
(6.8
|
)
|
|
|
(4.2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders
|
|
$
|
31.9
|
|
|
$
|
17.2
|
|
|
$
|
133.5
|
|
|
$
|
191.2
|
|
|
$
|
188.7
|
|
|
$
|
127.6
|
|
|
$
|
101.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings of continuing operations per common share
basic
|
|
$
|
0.81
|
|
|
$
|
0.42
|
|
|
$
|
2.62
|
|
|
$
|
3.66
|
|
|
$
|
3.59
|
|
|
$
|
2.42
|
|
|
$
|
1.95
|
|
Earnings of continuing operations per common share
assuming dilution
|
|
$
|
0.75
|
|
|
$
|
0.41
|
|
|
$
|
2.57
|
|
|
$
|
3.51
|
|
|
$
|
3.54
|
|
|
$
|
2.32
|
|
|
$
|
1.92
|
|
Earnings of discontinued operations per common share
basic
|
|
$
|
0.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings of discontinued operations per common share
assuming dilution
|
|
$
|
0.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings per common share basic (6)
|
|
$
|
0.82
|
|
|
$
|
0.42
|
|
|
$
|
2.62
|
|
|
$
|
3.66
|
|
|
$
|
3.59
|
|
|
$
|
2.42
|
|
|
$
|
1.95
|
|
Earnings (loss) per common share assuming dilution
|
|
$
|
0.75
|
|
|
$
|
0.41
|
|
|
$
|
2.57
|
|
|
$
|
3.51
|
|
|
$
|
3.54
|
|
|
$
|
2.32
|
|
|
$
|
1.92
|
|
Weighted average shares outstanding basic (6)
|
|
|
39.0
|
|
|
|
41.1
|
|
|
|
51.0
|
|
|
|
52.2
|
|
|
|
52.6
|
|
|
|
52.7
|
|
|
|
51.9
|
|
Weighted average shares outstanding assuming dilution
|
|
|
50.3
|
|
|
|
41.9
|
|
|
|
52.0
|
|
|
|
54.6
|
|
|
|
53.4
|
|
|
|
55.0
|
|
|
|
52.8
|
|
25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
|
|
|
2004
|
|
|
2005(1)
|
|
|
2006(2)(3)
|
|
|
2007(2)(4)(5)
|
|
|
2008(2)(4)
|
|
|
July 3, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
|
(In millions)
|
|
|
Balance Sheet Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
36.4
|
|
|
$
|
72.2
|
|
|
$
|
310.5
|
|
|
$
|
325.7
|
|
|
$
|
282.6
|
|
|
$
|
301.3
|
|
Working capital (7)
|
|
$
|
298.0
|
|
|
$
|
378.6
|
|
|
$
|
734.0
|
|
|
$
|
838.8
|
|
|
$
|
1,060.6
|
|
|
$
|
1,249.2
|
|
Property, plant and equipment, net
|
|
$
|
356.0
|
|
|
$
|
366.4
|
|
|
$
|
416.7
|
|
|
$
|
738.8
|
|
|
$
|
880.9
|
|
|
$
|
971.1
|
|
Total assets
|
|
$
|
1,239.3
|
|
|
$
|
1,523.2
|
|
|
$
|
2,215.3
|
|
|
$
|
3,765.6
|
|
|
$
|
3,836.4
|
|
|
$
|
3,841.9
|
|
Total debt, net of debt discount
|
|
$
|
374.9
|
|
|
$
|
451.6
|
|
|
$
|
617.7
|
|
|
$
|
1,168.9
|
|
|
$
|
1,254.0
|
|
|
$
|
1,253.1
|
|
Net debt (8)
|
|
$
|
338.5
|
|
|
$
|
379.4
|
|
|
$
|
307.2
|
|
|
$
|
843.2
|
|
|
$
|
971.4
|
|
|
$
|
951.8
|
|
Shareholders equity
|
|
$
|
301.4
|
|
|
$
|
293.3
|
|
|
$
|
553.9
|
|
|
$
|
931.4
|
|
|
$
|
992.1
|
|
|
$
|
1,184.7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Fiscal Months Ended
|
|
|
|
Years Ended December 31,
|
|
|
June 27,
|
|
|
July 3,
|
|
|
|
2004
|
|
|
2005(1)
|
|
|
2006(2)(3)
|
|
|
2007(2)(4)(5)
|
|
|
2008(2)(4)
|
|
|
2008(2)(4)
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
(Unaudited)
|
|
|
|
(In millions, except ratio and metals data)
|
|
|
Other Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows of operating activities (9)
|
|
$
|
12.5
|
|
|
$
|
121.0
|
|
|
$
|
94.0
|
|
|
$
|
231.7
|
|
|
$
|
229.4
|
|
|
$
|
(60.1
|
)
|
|
$
|
136.3
|
|
Cash flows of investing activities
|
|
$
|
(36.3
|
)
|
|
$
|
(130.5
|
)
|
|
$
|
(95.8
|
)
|
|
$
|
(759.8
|
)
|
|
$
|
(263.3
|
)
|
|
$
|
(126.1
|
)
|
|
$
|
(84.9
|
)
|
Cash flows of financing activities
|
|
$
|
28.8
|
|
|
$
|
52.5
|
|
|
$
|
234.7
|
|
|
$
|
528.1
|
|
|
$
|
29.6
|
|
|
$
|
257.8
|
|
|
$
|
(29.0
|
)
|
Ratio of earnings to fixed charges and preferred dividends (10)
|
|
|
1.2
|
x
|
|
|
1.4
|
x
|
|
|
5.6
|
x
|
|
|
5.0
|
x
|
|
|
3.8
|
x
|
|
|
5.0
|
x
|
|
|
4.3
|
x
|
Average daily COMEX price per pound of copper cathode
|
|
$
|
1.29
|
|
|
$
|
1.68
|
|
|
$
|
3.09
|
|
|
$
|
3.22
|
|
|
$
|
3.13
|
|
|
$
|
3.67
|
|
|
$
|
1.86
|
|
Average daily selling price per pound of aluminum rod
|
|
$
|
0.85
|
|
|
$
|
0.92
|
|
|
$
|
1.22
|
|
|
$
|
1.23
|
|
|
$
|
1.21
|
|
|
$
|
1.33
|
|
|
$
|
0.69
|
|
|
|
|
(1)
|
|
This period includes the preliminary opening balance sheet as of
December 31, 2005 for Silec (the wire and cable business of
SAFRAN SA) and Beru S.A., which were acquired in 2005. Due to
the purchase dates, the effects of the acquisitions on the
statement of operations information were not material for the
year ended December 31, 2005.
|
|
(2)
|
|
As adjusted for FSP APB
14-1,
Accounting for Convertible Debt Instruments That May be
Settled in Cash upon Conversion (Including Partial Cash
Settlement)
. See Note 2 of the Consolidated Financial
Statements for additional information.
|
|
(3)
|
|
This period includes the effects of the adoption of Statement of
Financial Accounting Standards (SFAS) No. 123 (Revised
2004),
Share-Based Payment
, and SFAS No. 158,
Employers Accounting for Defined Benefit Pension and
Other Postretirement Plans an amendment of FASB
Statements No. 87, 88, 106, and 132(R)
.
|
|
(4)
|
|
As adjusted for SFAS No. 160,
Noncontrolling
Interests in Consolidated Financial Statements
. See
Note 2 of the Consolidated Financial Statements for
additional information.
|
|
(5)
|
|
Includes operating results of the acquisition of the worldwide
wire and cable business of Freeport-McMoRan Copper and Gold,
Inc., which operated as Phelps Dodge International Corporation,
or PDIC, since October 31, 2007 and the effects of the
adoption of FASB Interpretation No. 48,
Accounting for
Uncertainty in Income Taxes
.
|
|
(6)
|
|
As adjusted for FSP EITF
03-6-1,
Determining Whether Instruments Granted in Share-Based
Payment Transactions Are Participating Securities
. See
Note 2 of the Consolidated Financial Statements for
additional information.
|
|
(7)
|
|
Working capital means current assets less current liabilities.
|
|
(8)
|
|
Net debt means our total debt less cash and cash equivalents.
|
26
|
|
|
(9)
|
|
For the year ended December 31, 2007, our operating cash
flows were increased by $25.3 million from a pre-tax loss
on the extinguishment of debt, consisting of $20.5 million
for the inducement premium, and related fees and expenses; and
the write-off of approximately $4.8 million in unamortized
fees and expenses related to our 9.5% senior notes due 2010.
|
|
(10)
|
|
For purposes of calculating the ratio of earnings to fixed
charges and preferred dividends, earnings consist of the sum of
(i) pre-tax income from continuing operations before
adjustment for income or loss from equity investees;
(ii) combined fixed charges and preferred dividends;
(iii) amortization of capitalized interest;
(iv) distributed income of equity investees; and
(v) our share of pre-tax losses of equity investees for
which charges arising from guarantees are included in fixed
charges, minus (vi) capitalized interest;
(vii) preference security dividend requirements of
consolidated subsidiaries; and (viii) the noncontrolling
interest in pre-tax income of subsidiaries that have not
incurred fixed charges. Combined fixed charges and preferred
dividends include: (a) interest expense, whether expensed
or capitalized; (b) amortization of debt issuance cost;
(c) the portion of rent expense representative of the
interest factor; and (d) the amount of pre-tax earnings
required to cover preferred stock dividends and any accretion in
the carrying value of the preferred stock.
|
27
RISK
FACTORS
Any investment in our securities involves a high degree of
risk. You should consider the risks described below carefully
and all of the information contained in this prospectus before
deciding whether to tender your 2012 notes in the exchange
offer. In addition, you should carefully consider, among other
things, the matters discussed under Risk Factors in
our Annual Report on
Form 10-K/A
for our fiscal year ended December 31, 2008, in our
subsequently filed quarterly reports on
Form 10-Q
and in other documents that we file with the SEC prior to the
completion or termination of this offering, all of which are
incorporated by reference into this prospectus. See
Incorporation of Certain Documents by Reference. The
risks and uncertainties described below are not the only risks
and uncertainties we face. Additional risks and uncertainties
not presently known to us or that we currently deem immaterial
also may impair our business operations. If any of the following
risks actually occur, our business, financial condition and
results of operations would suffer. In that event, the trading
price of our securities could decline, and you may lose all or
part of your investment. The risks discussed below also include
forward-looking statements and our actual results may differ
substantially from those discussed in those forward-looking
statements. See Special Note Regarding Forward-Looking
Statements.
Risks
Related to Participating in the Exchange Offer by Holders of
2012 Notes
Our
board of directors has not made a recommendation as to whether
you should tender your 2012 notes in exchange for 2029 notes in
the exchange offer, and we have not obtained a third-party
determination that the exchange offer is fair to holders of our
2012 notes.
Our board of directors has not made, and will not make, any
recommendation as to whether holders of 2012 notes should tender
their 2012 notes in exchange for 2029 notes pursuant to the
exchange offer. We have not retained, and do not intend to
retain, any unaffiliated representative to act solely on behalf
of the holders of the 2012 notes for purposes of negotiating the
terms of the 2029 notes or the exchange offer, or preparing a
report or making any recommendation concerning the fairness of
the exchange offer. If you tender your 2012 notes, you may not
receive more or as much value than if you chose to keep them.
Holders of 2012 notes must make their own decisions regarding
their participation in the exchange offer and are urged to
consult with their own financial, tax and legal advisors.
Upon
consummation of the exchange offer, holders who exchange 2012
notes will lose their rights under the 2012 notes.
If you tender 2012 notes and your 2012 notes are accepted for
exchange pursuant to the exchange offer, you will lose all of
your rights as a holder of the exchanged 2012 notes, including,
without limitation, your right to future interest and principal
payments with respect to the exchanged 2012 notes, your right to
have your 2012 notes repaid on October 15, 2012, the
maturity date of the 2012 notes, the senior ranking of the 2012
notes and related guarantees, and the fact that the 2012 notes
may not be redeemed by us for any reason. In addition, the 2012
notes are our senior obligations and are guaranteed by certain
of our subsidiaries, whereas the 2029 notes will be our
subordinated obligations and will not benefit from any
subsidiary guarantees. Furthermore, we may not redeem the 2012
notes. See Comparison of the 2029 Notes to the 2012
Notes.
To the
extent that a holder exchanges 2012 notes for 2029 notes in the
exchange offer, the holder ultimately may find that we would
have been able to repay the 2012 notes when they would have
matured but are unable to repay or refinance the 2029 notes when
they mature.
If you tender your 2012 notes and your 2012 notes are accepted
for exchange, you will receive 2029 notes, which you may not
require us to repurchase (except in the case of a fundamental
change) and which have a later maturity than the 2012 notes that
you presently own. It is possible that holders of 2012 notes who
participate in the exchange offer will be adversely affected by
the extension of maturity. Following the maturity date of the
2012 notes, but prior to the maturity date of the 2029 notes, we
may become subject to a bankruptcy or similar proceeding or we
may otherwise be in a position in which we are unable to repay
or
28
refinance the 2029 notes when they mature. If so, holders of the
2012 notes who opted not to participate in the exchange offer
may have been paid in full, and there is a risk that the holders
of the 2029 notes will not be paid in full. If you decide to
tender 2012 notes for exchange, you will be exposed to the risk
of nonpayment for a longer period of time.
We
intend to take the position, although the matter is not free
from doubt, that the exchange of 2012 notes for 2029 notes will
qualify as a recapitalization for U.S. federal income tax
purposes. Nevertheless, a court could determine that the
exchange does not qualify as a recapitalization.
We intend to take the position, although the matter is not free
from doubt, that the exchange of 2012 notes for 2029 notes will
qualify as a recapitalization for U.S. federal income tax
purposes. If the exchange so qualifies, you generally should not
recognize gain or loss as a result of the exchange, except that
you will recognize any gain in an amount equal to the lesser of:
(i) the excess, if any, of the issue price of the 2029
notes received in the exchange offer over your adjusted tax
basis in your 2012 notes, and (ii) the fair market value of
the principal amount of the 2029 notes you receive over the
principal amount of the 2012 notes that you surrender in
exchange therefor. Subject to certain exceptions (such as the
market discount rules), any such gain should generally be
treated as capital gain and would be long-term capital gain if
the holder held the 2012 note for more than one year at the time
of the exchange.
The application of the recapitalization provisions to debt
instruments such as the 2029 notes and the 2012 notes is
unclear. Moreover, due to the facts and circumstances
surrounding a determination of whether an exchange of debt
instruments qualifies as a recapitalization, a court could
determine that the exchange offer does not qualify as a
recapitalization. In the event of a successful challenge by the
Internal Revenue Service to this characterization of the
exchange offer, you generally would recognize gain or loss with
respect to the 2012 notes being exchanged equal to the
difference between: (i) the issue price of the 2029 notes
received in the exchange offer, and (ii) the adjusted tax
basis in your 2012 notes exchanged. Subject to certain
exceptions (such as the market discount rules), any such gain
should generally be treated as capital gain and would be
long-term capital gain if the holder held the 2012 note for more
than one year at the time of the exchange. See Material
U.S. Federal Income Tax Considerations.
Any cash payments in respect of accrued interest will be taxable
as interest income to the extent not previously included in
income.
The
liquidity of any trading market that currently exists for the
2012 notes may be adversely affected by the exchange offer, and
holders of 2012 notes who fail to participate in the exchange
offer may find it more difficult to sell their 2012 notes after
the exchange offer is completed.
There currently is a limited trading market for the 2012 notes.
To the extent that 2012 notes are tendered and accepted for
exchange pursuant to the exchange offer, the trading market for
the remaining 2012 notes will be even more limited or may cease
to exist altogether. A debt security with a small outstanding
aggregate principal amount or float may command a
lower price than would a comparable debt security with a larger
float. Therefore, the market price for the unexchanged 2012
notes may be adversely affected. The reduced float may also make
the trading price of the remaining 2012 notes more volatile. The
2012 notes are not listed on any national securities exchange or
quoted on any automated quotation system.
Failure
to complete the exchange offer successfully could negatively
affect the market prices of the 2012 notes and our common
stock.
Several conditions must be satisfied or waived in order to
complete the exchange offer, including that there shall not have
occurred or be reasonably likely to occur any material adverse
change to our business, operations, properties, condition,
assets, liabilities, prospects or financial affairs. In
addition, the registration statement of which this prospectus
forms a part must be declared effective and should not be
subject to a stop order or any proceedings for that purpose and
a minimum of $100.0 million aggregate principal amount of 2012
notes shall have been validly tendered and not validly withdrawn
as of the expiration date. The conditions to the exchange offer
may not be satisfied, and if not satisfied or waived, to the
extent that the
29
conditions may be waived, the exchange offer may not be
completed or may be delayed. If the exchange offer is not
completed or is delayed, the respective market prices of our
common stock and the 2012 notes may decline to the extent that
the respective current market prices reflect an assumption that
the exchange offer has been or will be completed.
We
cannot assure you that, if we consummate the exchange offer,
existing ratings for the 2012 notes or any of our other existing
indebtedness, or our corporate rating, will be
maintained.
We cannot assure you that, as a result of the exchange offer,
the rating agencies, including Standard & Poors
Ratings Service and Moodys Investors Service, will not
downgrade or negatively comment upon the ratings for the 2012
notes or any of our other existing indebtedness, or our
corporate rating. Any such downgrade or negative comment would
likely adversely affect us or any market price for such
indebtedness.
During
the pendency of the exchange offer, it is likely that the market
prices of the 2012 notes, our 2013 notes, our Series A
preferred stock and our common stock will be
volatile.
It is likely, that during the pendency of the exchange offer,
the market price of our common stock will be volatile. Holders
of 2012 notes may terminate all or a portion of any hedging
arrangements they have entered into in respect of their 2012
notes, which may lead to increased purchase activity by or on
behalf of such holders during the exchange offer. In addition,
holders wishing to exchange their 2012 notes in the exchange
offer may seek to establish hedging positions with respect to
the 2029 notes or our common stock, which may lead to increased
selling activity by or on behalf of such holders during the
exchange offer. Such purchase or selling activity may lead to
volatility in the price of our common stock, as well as in the
price of our 2012 notes or our 2013 notes (both of which
securities are convertible into cash and, in certain
circumstances, our common stock), and our Series A
preferred stock (which is also convertible into our common
stock) or may lead to unusually high trading volumes during the
period of the exchange offer.
If the
initial conversion price is the minimum conversion price, the
2029 notes will be convertible into fewer shares of our common
stock than would have been the case in the absence of that
limitation and the relative value of the 2029 notes may be
diminished.
If the initial conversion price equals the minimum conversion
price because the average VWAP is below $36.75, the number of
shares of our common stock initially issuable upon conversion of
the 2029 notes will be set at the maximum conversion rate of
27.2109 shares of our common stock per $1,000 principal
amount of 2029 notes. In such event, this number of shares will
be less than the number of shares into which the 2029 notes
would have been initially convertible but for the minimum
conversion price limitation and the relative value of the 2029
notes may be diminished. If the initial conversion price is set
at the minimum conversion price because the average VWAP
otherwise would result in an initial conversion price of less
than the minimum conversion price, the expiration of the
exchange offer will be extended until midnight, New York City
time, on the second trading day following the previously
scheduled expiration date to permit holders to tender or to
withdraw their 2012 notes during those days. Any changes in the
price of our common stock on those additional days of the
exchange offer will not, however, affect the initial conversion
price or the initial minimum conversion rate.
Although
the conversion price and the conversion rate will be determined
based on the average VWAP of our common stock during the ten
trading day period ending on and including the currently
scheduled expiration date, the market price of our common stock
will fluctuate, and the market price of our common stock upon
settlement of the exchange offer could be less than the market
price used to determine the initial conversion price and the
initial conversion rate.
The initial conversion price and initial conversion rate will be
determined based on the average VWAP of our common stock during
the ten trading day period ending on and including the currently
scheduled expiration date and will not be adjusted regardless of
any increase or decrease in the market price of our common stock
between the expiration date of the exchange offer and the
settlement date. Therefore, the market price of the common stock
at the time you receive your 2029 notes on the settlement date
could be
30
less than the market price used to determine the initial
conversion price and the initial conversion rate. The market
price of our common stock has historically been subject to
fluctuations and volatility.
Risks
Related to the 2029 Notes
Our
substantial indebtedness could adversely affect our business and
financial condition and could prevent us from fulfilling our
obligations under the 2029 notes or our other
indebtedness.
We now have, and after giving effect to the exchange offer will
continue to have, a significant amount of debt outstanding. As
of July 3, 2009, we had $1,253.1 million of total debt
outstanding (net of $172.9 million of debt discount),
$129.8 million of which was secured indebtedness. Our
obligations under the 2029 notes will be subordinated to
all of our consolidated indebtedness. In addition, as of July 3,
2009, our subsidiaries had $1,411.5 million in liabilities,
excluding consolidated indebtedness but including trade
payables, all of which liabilities will be effectively senior to
the 2029 notes. In addition to such outstanding indebtedness, as
of July 3, 2009, we had $305.6 million of additional
borrowing capacity available under our senior secured credit
facility, $62.9 million of additional borrowing capacity
under our Spanish credit facility, approximately
$48.2 million of additional borrowing capacity under
agreements related to E.C.N. Cable Group, S.L., or ECN Cable,
and approximately $327.6 million of additional borrowing
capacity under our various credit agreements related to PDIC,
subject to certain conditions. Subject to the terms of the
senior secured credit facility, our Spanish term loan and credit
facility and the indentures governing our 2012 notes, our 2013
notes, our 2015 notes and our 2017 notes, we may also incur
additional indebtedness, including secured debt, in the future.
The indenture governing the 2029 notes will not contain any
limitations on our ability or the ability of our subsidiaries to
incur additional indebtedness.
The degree to which we are leveraged could have significant
adverse consequences to us, limiting managements choices
in responding to business, economic, regulatory and competitive
conditions. In addition, our ability to generate cash flow from
operations sufficient to make scheduled payments on our debts as
they become due will depend on our future performance, our
ability to successfully implement our business strategy and our
ability to obtain other financing, which may be influenced by
economic, financial, competitive, legislative, regulatory and
other factors that are beyond our control. Our indebtedness also
could adversely affect our financial position.
We may not have sufficient cash to pay, or may not be permitted
to pay, the cash portion of the required consideration that we
may need to pay if our 2012 notes, our 2013 notes or the 2029
notes are converted. Furthermore, the subordination provisions
of the 2029 notes may prohibit us from making any cash payments
upon conversion of the 2029 notes. We will be required to pay to
the holder of a 2012 note, 2013 note or 2029 note a cash payment
equal to the lesser of the principal amount of the note being
converted or the conversion value of such note. This part of the
payment must be made in cash, not in shares of our common stock.
As a result, we may be required to pay significant amounts in
cash to holders of our 2012 notes, our 2013 notes or the 2029
notes upon conversion. A failure to pay the required cash
consideration would be an event of default under the indentures
governing our 2012 notes, our 2013 notes and the 2029 notes,
which could lead to cross-defaults under our other indebtedness.
In connection with the incurrence of indebtedness under our
senior secured credit facility, the lenders under that facility
have received a pledge of all of the capital stock of our
domestic and Canadian subsidiaries and any future domestic and
Canadian subsidiaries. Additionally, the lenders under our
senior secured credit facility have a lien on substantially all
of our domestic and Canadian assets, including our existing and
future accounts receivable, cash, general intangibles,
investment property and real property. As a result of these
pledges and liens, if we fail to meet our payment or other
obligations under our senior secured credit facility, the
lenders with respect to this facility would be entitled to
foreclose on substantially all of our domestic and Canadian
assets and to liquidate these assets.
31
Our substantial indebtedness could have important consequences
to holders of the 2029 notes. For example, it could:
|
|
|
|
|
make it more difficult for us to satisfy our obligations with
respect to the 2029 notes and our obligations under our other
indebtedness;
|
|
|
|
increase our vulnerability to general adverse economic and
industry conditions;
|
|
|
|
limit our ability to fund future working capital, capital
expenditures, research and development and other general
corporate requirements;
|
|
|
|
require us to dedicate a substantial portion of our cash flow
from operations to service payments on our debt;
|
|
|
|
limit our flexibility to react to changes in our business and
the industry in which we operate;
|
|
|
|
place us at a competitive disadvantage to any of our competitors
that have less debt; and
|
|
|
|
limit, along with the financial and other restrictive covenants
in our indebtedness, among other things, our ability to borrow
additional funds.
|
A substantial amount of our debt will come due prior to the
final maturity date of the 2029 notes, which we will be required
to repay or refinance. Our 2012 notes, our 2013 notes, our 2015
notes, our 2017 notes, amounts outstanding from time to time
under our senior secured credit facility, indebtedness incurred
under our Spanish credit facilities and other present and future
indebtedness will mature prior to the maturity date of the 2029
notes and will be payable in cash. In addition, upon the
occurrence of various events, such as a change of control, some
or all of our outstanding debt obligations may become due or be
subject to repurchase or similar rights prior to their maturity
date.
Despite
our current level of indebtedness, we may be able to incur
substantially more indebtedness. This could further exacerbate
the risks associated with our indebtedness.
Although we now have a significant amount of debt, we may be
able to incur substantially more debt in the future. As of
July 3, 2009, we had the ability to incur up to
$305.6 million of additional secured debt under our senior
secured credit facility and $106.0 million in secured debt
under our foreign secured credit facilities. Any such additional
indebtedness incurred will be expressly or effectively senior to
the 2029 notes. Our senior secured credit facility and the
indenture governing our 2015 and our 2017 notes contain
restrictions on the incurrence of additional debt, which
restrictions are subject to a number of qualifications and
exceptions, and debt incurred in compliance with these
restrictions could be substantial. If new debt is added to our
current debt levels, the risks described above would intensify.
The
indenture governing the 2029 notes does not limit our or our
subsidiaries ability to incur indebtedness, and provides
only limited protection in the event of a change of
control.
The 2029 note indenture will not contain any financial or
operating covenants that would restrict or prohibit us or our
subsidiaries from undertaking certain types of transactions that
could be adverse to the interests of the holders of the 2029
notes. In particular, the 2029 note indenture will not restrict
us or our subsidiaries from incurring additional indebtedness.
In addition, the 2029 note indenture will not contain
restrictions on paying dividends or making distributions of our
assets or property, making investments, entering into
transactions with affiliates, incurring liens or issuing or
repurchasing securities. As a result, the 2029 note indenture
may not adequately protect you in the event of a change in
control, highly leveraged transaction or other similar
transaction involving the company.
The requirement that we offer to repurchase the 2029 notes upon
a change of control is limited to the transactions specified in
the applicable definition of a fundamental change.
Similarly, the requirement in the 2029 note indenture to adjust
the conversion rate upon the occurrence of a make whole
transaction does not apply to all change of control
transactions. Accordingly, subject to restrictions contained in
our other indebtedness, we could enter into certain
transactions, such as acquisitions, refinancings or
recapitalizations,
32
that could affect our capital structure and the value of the
2029 notes but would not trigger the protections under the 2029
note indenture applicable to a fundamental change or a make
whole transaction.
The
2029 notes will be our unsecured subordinated obligations and
will be subordinated in right of payment to the companys
existing and future senior indebtedness and effectively
subordinated to all indebtedness and other liabilities of our
subsidiaries.
The 2029 notes will be unsecured and subordinated in right of
payment to all of the companys existing and future senior
indebtedness, including the companys secured indebtedness
and the companys obligations under the 2012 notes, the
2013 notes, the 2015 notes and the 2017 notes. Consequently, the
payment of the principal, any premium and interest (including
contingent and additional interest, if any) on the 2029 notes,
including amounts payable on any redemption or repurchase, and
any cash payable upon conversion of the 2029 notes, will be
subordinated to the prior payment in full of all of such
existing and future senior debt. As a result, if we experience a
bankruptcy, liquidation, reorganization or similar proceeding,
or if our obligations under the 2029 notes are accelerated due
to an event of default under the indenture, we will not be
permitted to make payments on the 2029 notes, including
cash-payments upon conversion of the 2029 notes, until we have
satisfied all of our senior debt obligations. Also, if payment
or other defaults occur on any senior debt, payments on the 2029
notes, including cash-payments upon conversion of the 2029
notes, may be blocked indefinitely or for specified periods.
Therefore, payments on the 2029 notes may be delayed or not
permitted, or we may not have sufficient assets remaining to pay
amounts due on any or all of the 2029 notes.
In addition, the 2029 notes will not be guaranteed by any of our
subsidiaries and will not be secured by any of our assets or
those of our subsidiaries. Our senior secured credit facility is
presently secured by substantially all of our and our
U.S. and Canadian subsidiary guarantors assets. Our
Spanish secured term loan and other European secured credit
facilities are presently secured by a portion of the assets of
our European subsidiaries. Secured indebtedness effectively
ranks senior to the 2029 notes to the extent of the value of the
assets securing such indebtedness. If we default on the 2029
notes, become bankrupt, liquidate, restructure or reorganize, it
would result in a default under our senior secured credit
facility, which in turn would result in a default under our
Spanish credit facilities, and our secured creditors could use
the collateral securing such debt to satisfy our obligations
before you would receive any payment on the 2029 notes. If the
value of our collateral is insufficient to pay all of our
secured indebtedness, our secured creditors would share equally
in the value of our other assets, if any, with you and any other
creditors.
The 2029 notes will be effectively subordinated in right of
payment to all existing and future liabilities, including trade
payables, of our subsidiaries, including any subsidiaries that
we may in the future acquire or establish. Consequently, our
right to receive assets of any subsidiaries upon their
liquidation or reorganization, and the right of holders of the
2029 notes to share in those assets, would be effectively
subordinated to all claims of the creditors of our subsidiaries.
As of July 3, 2009, we had $1,253.1 million in total
debt outstanding (net of $172.9 million of debt discount),
including $129.8 million in secured debt, and the ability
to incur up to $305.6 million of additional secured debt
under our senior secured credit facility and $106.0 million
in secured debt under our foreign secured credit facilities. In
addition, as of July 3, 2009, our subsidiaries had
$1,411.5 million in liabilities, excluding consolidated
indebtedness but including trade payables, all of which
liabilities will be effectively senior to the 2029 notes.
To
service our indebtedness, we will require a significant amount
of cash, and our ability to generate cash depends on many
factors beyond our control.
Our ability to make payments on our indebtedness, including the
2029 notes, to refinance our indebtedness and fund planned
capital expenditures will depend on our ability to generate cash
in the future. This, to a certain extent, is subject to general
economic, financial, competitive, legislative, regulatory and
other factors that are beyond our control.
We believe our cash flows from operating activities and our
existing capital resources, including the liquidity provided,
and to be provided, by our senior secured credit facility and
our European subsidiaries credit facilities, will be
sufficient to fund our operations and commitments for at least
the next twelve months. We cannot assure you, however, that our
business will generate sufficient cash flows from operations or
that future borrowings will be available to us under our credit
facilities in an amount sufficient to enable us to
33
make payments with respect to our indebtedness, including the
2029 notes, or to fund our other liquidity needs. To do so, we
may need to refinance all or a portion of our indebtedness
(including the 2029 notes) on or before maturity, sell assets,
reduce or delay capital expenditures or seek additional equity
financing. We cannot assure you that we will be able to
refinance any of our indebtedness on commercially reasonable
terms or at all.
Our
ability to pay principal and interest on the 2029 notes depends
upon our receipt of dividends or other intercompany transfers
from our subsidiaries, and claims of creditors of our
subsidiaries will have priority over claims you may have with
respect to the assets and earnings of those
subsidiaries.
We are a holding company and substantially all of our properties
and assets are owned by, and all our operations are conducted
through, our subsidiaries. As a result, we are dependent upon
cash dividends and distributions or other transfers from our
subsidiaries to meet our debt service obligations, including
payment of the interest on and principal of the 2029 notes when
due. The ability of our subsidiaries to pay dividends and make
other payments to us may be restricted by, among other things,
applicable corporate, tax and other laws and regulations in the
United States and abroad and agreements made by us and our
subsidiaries, including under the terms of our existing and
potentially future indebtedness.
In addition, claims of creditors, including trade creditors, of
our subsidiaries will generally have priority with respect to
the assets and earnings of such subsidiaries over the claims of
our creditors. In the event of our dissolution, bankruptcy,
liquidation or reorganization, the holders of the 2029 notes
will not receive any amounts from our subsidiaries with respect
to the 2029 notes until after the payment in full of the claims
of the creditors of these subsidiaries.
The
agreements that govern our secured indebtedness, our 2015 notes
and our 2017 notes contain various covenants that limit our
discretion in the operation of our business.
The agreements and instruments that govern our secured
indebtedness, our 2015 notes and our 2017 notes contain various
restrictive covenants that, among other things, require us to
comply with or maintain certain financial tests and ratios and
restrict our and our subsidiaries ability to:
|
|
|
|
|
incur or guarantee additional debt;
|
|
|
|
pay dividends, purchase company stock or make other
distributions;
|
|
|
|
make certain investments and payments;
|
|
|
|
create liens;
|
|
|
|
enter into transactions with affiliates;
|
|
|
|
make acquisitions;
|
|
|
|
merge or consolidate; and
|
|
|
|
transfer or sell assets.
|
Our ability and the ability of our subsidiaries to comply with
these covenants is subject to various risks and uncertainties.
In addition, events beyond our control could affect our ability
to comply with and maintain the financial tests and ratios
required by this senior indebtedness. Any failure by us or our
subsidiaries, as applicable, to comply with and maintain all
applicable financial tests and ratios and to comply with all
applicable covenants could result in an event of default with
respect to, the acceleration of the maturity of, and the
termination of the commitments to make further extension of
credit under, a substantial portion of our debt. Even if we or
our subsidiaries, as applicable, are able to comply with all
applicable covenants, the restrictions on our ability to operate
our business in our sole discretion could harm our business by,
among other things, limiting our ability to take advantage of
financing, mergers, acquisitions and other corporate
opportunities.
34
Failure
to comply with covenants in our existing or future financing
agreements could result in
cross-defaults
under some of our financing agreements, which cross-defaults
could jeopardize our ability to satisfy our obligations under
the 2029 notes.
Various risks, uncertainties and events beyond our control could
affect our ability or the ability of our subsidiaries to comply
with the covenants, financial tests and ratios required by the
instruments governing our and their financing arrangements,
including, without limitation, the requirement that no final
judgment or judgments of a court of competent jurisdiction have
been rendered against us or our subsidiaries in excess of stated
amounts. Failure to comply with any of the covenants in existing
or future financing agreements could result in a default under
those agreements and under other agreements containing
cross-default provisions, including the indenture governing the
2029 notes. A default would permit lenders to cease to make
further extensions of credit, accelerate the maturity of the
debt under these agreements and foreclose upon any collateral
securing that debt. Under these circumstances, we might not have
sufficient funds or other resources to satisfy all of our
obligations, including our obligations under the 2029 notes. In
addition, the limitations imposed by financing agreements on our
ability and the ability of our subsidiaries to incur additional
debt and to take other actions might significantly impair our
and their ability to obtain other financing. We also may amend
the provisions and limitations of our credit facilities from
time to time without the consent of the holders of the 2029
notes.
Certain portions of our debt contain prepayment, repurchase or
acceleration rights at the election of the holders upon a
covenant default, change of control, or fundamental change,
which prepayment, repurchase or acceleration rights, if
exercised, could constitute an event of default under other
portions of our debt, including the 2029 notes. It is possible
that we would be unable to fulfill all of these obligations and
make payments on the 2029 notes simultaneously.
If we
fail to meet our payment or other obligations under our secured
indebtedness, the lenders under this indebtedness could
foreclose on, and acquire control of, substantially all of our
assets.
The lenders under our senior secured credit facility have a
pledge of all of the capital stock of our existing domestic and
Canadian subsidiaries and any future domestic and Canadian
subsidiaries. Additionally, the lenders under our senior secured
credit facility have a lien on substantially all of our domestic
and Canadian assets, including our existing and future accounts
receivable, cash, general intangibles, investment property and
real property. We also have incurred secured debt in connection
with some of our European operations. The lenders under these
European secured credit facilities also have liens on assets of
certain of our European subsidiaries. As a result of these
pledges and liens, if we fail to meet our payment or other
obligations under any of our secured indebtedness, the lenders
under the applicable credit agreement would be entitled to
foreclose on substantially all of our assets and liquidate these
assets. Under those circumstances, we may not have sufficient
funds to pay our obligations under the 2029 notes. As a result,
you may lose a portion of or the entire value of your investment
in the 2029 notes.
Recent
developments in the convertible debt markets may adversely
affect the market value of the 2029 notes.
The convertible debt markets recently experienced unprecedented
disruptions resulting from, among other things, the recent
instability in the credit and capital markets and the emergency
orders issued by the SEC on September 17 and 18, 2008 (and
extended on October 1, 2008). These orders were issued as a
stop-gap measure while Congress worked to provide a
comprehensive legislative plan to stabilize the credit and
capital markets. Among other things, these orders temporarily
imposed a prohibition on effecting short sales of common stock
of certain financial companies. As a result, the SEC orders made
the convertible arbitrage strategy that many convertible debt
investors employ difficult to execute for outstanding
convertible debt of those companies whose common stock was
subject to the short sale prohibition. Although the SEC orders
expired on October 8, 2008, the SEC is currently
considering instituting other limitations on effecting short
sales (such as the uptick rule) and other regulatory
organizations may do the same.
35
On April 8, 2009, the SEC voted to seek public comment on
whether short sale price restrictions or circuit breaker
restrictions should be imposed. The SEC voted to propose two
approaches to restrictions on short selling. One approach would
apply on a market wide and permanent basis, including adoption
of a new uptick rule, while the other would apply only to a
particular security during severe market declines in that
security, and would involve, among other limitations, bans on
short selling in a particular security during a day if there is
a severe decline in price in that security. On August 17,
2009, the SEC voted to seek public comment on a third approach,
which would allow under an alternative uptick rule
short selling only at an increment above the national best bid.
These and other actions that may have the effect of interfering
with the ability of convertible debt investors to effect short
sales of the underlying common stock could significantly affect
the market value of the 2029 notes. Such government actions
would make the convertible arbitrage strategy that many
convertible debt investors employ difficult to execute for
outstanding convertible debt of any company whose common stock
is subject to such actions. If such limitations are instituted
by the SEC or any other regulatory agencies, the market value of
the 2029 notes could be materially and adversely affected.
We may
be unable to purchase our 2012 notes, our 2013 notes, our 2015
notes, our 2017 notes or the 2029 notes upon a fundamental
change, which would cause defaults under the 2029 notes and our
other debt agreements.
Holders of the 2029 notes may require us to repurchase for cash
all or a portion of the 2029 notes following the occurrence of a
fundamental change at a purchase price equal to 100% of the
principal amount of the 2029 notes, plus accrued interest
(including contingent and additional interest, if any) to, but
excluding, the date of the purchase. See Description of
the 2029 Notes Purchase of 2029 Notes by Us for Cash
at the Option of Holders Upon a Fundamental Change.
Similarly, the indenture governing our 2012 notes and the
indenture governing our 2013 notes require us to repurchase
those notes in the event of a fundamental change at a purchase
price equal to 100% of the principal amount of the notes, plus
accrued interest to, but excluding, the date of purchase. In
addition, the indenture governing our 2015 notes and our 2017
notes requires us to repurchase those notes in event of a change
of control at a purchase price equal to 101% of the principal
amount of the notes, plus accrued interest to the date of the
purchase.
We are limited by our credit facilities, and may be prohibited
under future financing agreements, from purchasing any of our
2012 notes, our 2013 notes, our 2015 notes, our 2017 notes or
the 2029 notes prior to their stated maturity. In such
circumstances, we will be required to repay or obtain the
requisite consent from the applicable lenders to permit the
repurchase of our 2012 notes, our 2013 notes, our 2015 notes,
our 2017 notes or the 2029 notes. If we are unable to repay all
of such debt or are unable to obtain the necessary consents, we
will be unable to offer to repurchase these series of notes,
which would constitute an event of default under the indenture
governing each series of notes, which in turn would constitute a
default under our credit agreements and our other existing
financing arrangements, and could constitute a default under the
terms of any future debt that we may incur. In addition, we may
not have sufficient funds available at the time we are required
to repurchase our 2012 notes, our 2013 notes, our 2015 notes,
our 2017 notes or the 2029 notes.
We may
not be able to pay the cash portion of the conversion price
pursuant to any conversion of our 2012 notes, our 2013 notes or
our 2029 notes.
We may not have sufficient cash to pay, or may not be permitted
to pay, the cash portion of the required consideration that we
may need to pay if our 2012 notes, our 2013 notes or our 2029
notes are converted. As described under Description of the
2029 Notes Conversion Rights, upon conversion
of the 2029 notes, we will be required to pay to the holder of a
note a cash payment equal to the lesser of the principal amount
of the 2029 notes being converted or the conversion value of
those notes. The terms of our 2012 notes and our 2013 notes
contain substantially similar provisions. This part of the
payment must be made in cash, not in shares of our common stock.
As a result, we may be required to pay significant amounts in
cash to holders of any of our convertible notes upon conversion.
36
If we do not have sufficient cash on hand at the time of
conversion, we may have to borrow funds under our credit
facilities or raise additional funds through other debt or
equity financing. Our ability to borrow the necessary funds
under our various credit facilities will be subject to our
ability to remain in compliance with the terms of those
facilities and to have borrowing availability thereunder. In
addition, our ability to raise any additional financing, if
necessary, will depend on prevailing market conditions. Further,
we may not be able to raise such financing within the period
required to satisfy our obligation to make timely payment upon
any conversion. In addition, the terms of any future debt may
prohibit us from making these cash payments upon conversion of
our 2012 notes, our 2013 notes or the 2029 notes. Furthermore,
the subordination provisions of the 2029 notes may prohibit us
from making cash payments upon a conversion of the 2029 notes.
We obtained the consent of the lenders under our senior secured
credit facility to issue the 2029 notes. The terms of the senior
secured credit facility require us to comply with covenants and
other conditions and limitations regarding our ability to make
cash payments to holders of our 2012 notes, our 2013 notes and
the 2029 notes, including upon conversion of our 2012 notes, our
2013 notes or the 2029 notes, and to receive loans or advances
from certain of our subsidiaries. If we fail to comply with
these conditions or we exceed these limitations, we would not be
permitted to pay the cash portion of the required consideration
upon any conversion of our 2012 notes, our 2013 notes or the
2029 notes, and any such payments would constitute an event of
default under the senior secured credit facility. A failure to
pay the required cash consideration would be an event of default
under the indentures governing our 2012 notes, our
2013 notes and the 2029 notes, which could lead to
cross-defaults under our other indebtedness.
Fluctuations
in the price of our common stock and the 2029 notes may prevent
you from being able to convert the 2029 notes, which may also
make them more difficult to resell.
The ability of holders of the 2029 notes to convert the 2029
notes is conditioned on the closing price of our common stock
reaching a specified threshold or the occurrence of other
specified events, such as a change of control. If the closing
price threshold for conversion of the 2029 notes is satisfied
during a calendar quarter, holders may convert such notes only
during the subsequent calendar quarter. If such closing price
threshold is not satisfied and the other specified events that
would permit a holder to convert such notes do not occur,
holders would not be able to convert such notes until the period
beginning 30 days before the maturity date and ending at
the close of business on the business day immediately preceding
the final maturity date. See Description of the 2029
Notes Conversion Rights.
The 2029 notes may be convertible into shares of our common
stock. The trading price of the 2029 notes is expected to move
in the same direction as the trading price of our common stock.
Thus, volatility and fluctuations in our common stock may have a
material adverse effect on the price of the 2029 notes.
Volatility or weakness in the trading price of the 2029 notes
could limit the amount of cash payable, as well as the number of
shares of our common stock issuable, upon conversion of such
notes. Holders who receive common stock upon conversion of the
2029 notes also will be subject to the risk of volatility and
depressed prices of our common stock.
Our stock price and the stock market in general have from time
to time experienced very significant and, at times, extreme,
price fluctuations. Often, these changes have been unrelated to
the operating performance of the affected companies. The trading
price of our common stock is affected by many factors, including
our results of operations, announcements relating to significant
corporate transactions, conditions specific to the wire and
cable industry, earnings and other announcements by our
competitors, conditions in securities markets in general and
recommendations by securities analysts. Furthermore,
quarter-to-quarter
fluctuations in our results of operations caused by changes in
customer demand or other factors may have a significant effect
on the market price of our common stock. In addition, general
market conditions and international political or economic
factors unrelated to our performance may affect our stock price.
These and other conditions and factors could cause the price of
our common stock, and therefore the price of the 2029 notes, to
fluctuate substantially over short periods or in the long term.
37
A
downgrade in our credit ratings could affect the market price of
the 2029 notes, limit our ability to conduct our business or
offer and sell additional debt securities, and hurt our
relationships with creditors.
Nationally recognized rating agencies currently rate our debt,
and are expected to rate the 2029 notes. Ratings are not
recommendations to buy or sell our securities. We may in the
future incur indebtedness with interest rates that may be
affected by changes in our credit ratings. Each of the rating
agencies reviews its ratings periodically, and previous ratings
for our debt may not be maintained in the future. Rating
agencies may also place us under review for potential downgrade
if we announce our intention to obtain additional indebtedness
or take other actions. A downgrade of our debt ratings, or other
negative action, such as a review for possible downgrade, could
affect the market price of the 2029 notes. Furthermore, these
events may affect our ability to raise additional debt with
terms and conditions similar to our current debt, and
accordingly, likely increase our cost of capital. In addition, a
downgrade of these ratings could make it more difficult for us
to raise capital to refinance any maturing debt obligations, to
support business growth and to maintain or improve the current
financial strength of our business and operations.
The
conditional conversion feature of the 2029 notes and the 2012
notes could result in your receiving less than the value of the
common stock into which a 2029 note or 2012 note is
convertible.
The 2029 notes and the 2012 notes are convertible into cash and,
in certain circumstances, shares of our common stock only if
specified conditions are met. Until these conditions are met,
you will not be able to convert your 2029 notes or your 2012
notes, and you may not be able to receive the value of the
common stock into which the 2029 notes and the 2012 notes might
otherwise be convertible.
The
adjustment to the conversion rate that may occur in connection
with a change of control may not adequately compensate you for
the lost option value of your 2029 notes as a result of such
change of control.
If and to the extent you elect to convert your 2029 notes in
connection with certain transactions that result in a change of
control, we will increase the applicable conversion rate for the
2029 notes surrendered for conversion. While this increase in
the conversion rate is designed to compensate you for the lost
option value of your 2029 notes as a result of a change of
control, such increase is only an approximation of such lost
value and may not adequately compensate you for such loss. In
addition, even if a change of control occurs, in certain
instances described under Description of the 2029
Notes Determination of Make Whole Premium,
there will be no such increase in the conversion rate.
Illiquidity
and an absence of a public market for the 2029 notes could cause
you to be unable to resell the 2029 notes for an extended period
of time.
There is no established trading market for the 2029 notes and we
do not intend to apply for listing of the 2029 notes on any
national securities exchange. An active trading market for the
2029 notes may not develop or, if even such a market develops,
it could be very illiquid. While each of the dealer managers has
indicated that it intends to make a market in the 2029 notes,
neither dealer manager is required to do so, and if a dealer
manager does make a market in the 2029 notes, it may discontinue
such activity at any time for any reason without notice. Holders
of the 2029 notes may experience difficulty in reselling, or an
inability to sell, the 2029 notes.
Even if a trading market for the 2029 notes is established, the
liquidity of any such trading market, and the market price
quoted for the 2029 notes, may be adversely affected by changes
in:
|
|
|
|
|
prevailing interest rates;
|
|
|
|
liquidity of the 2029 notes;
|
|
|
|
the overall market for debt and convertible securities generally;
|
|
|
|
our operating results, financial performance or
prospects; or
|
|
|
|
the prospects for companies in the wire and cable industry
generally.
|
38
Moreover, historically, the market for non-investment grade and
convertible debt has been subject to disruptions that have
caused substantial fluctuation in the prices of these
securities. You should be aware that you may be required to bear
the financial risk of an investment in the 2029 notes for an
indefinite period of time.
The
conversion rates of the 2029 notes may not be adjusted for all
dilutive events that may adversely affect the trading price of
the 2029 notes or the common stock that may be issuable upon
conversion of the 2029 notes.
The conversion rate of the 2029 notes is subject to adjustment
upon certain events, including the issuance of stock dividends
on our common stock, subdivisions, combinations, distributions
of capital stock (other than our common stock), indebtedness or
assets, cash dividends and issuer tender or exchange offers. The
conversion rate will not be adjusted for certain other events,
such as our issuance of common stock for cash, that may
adversely affect the trading price of the 2029 notes or the
common stock that may be issuable upon conversion of the 2029
notes.
If you
hold 2029 notes, you are not entitled to any rights with respect
to our common stock, but you are subject to all changes made
with respect to our common stock.
If you hold 2029 notes, you are not entitled to any rights with
respect to our common stock (including, without limitation,
voting rights and rights to receive any dividends or other
distributions on our common stock), but you are subject to all
changes affecting the common stock. You will only be entitled to
rights on the common stock if and when we deliver shares of
common stock to you upon conversion of your 2029 notes. For
example, in the event that an amendment is proposed to our
amended and restated certificate of incorporation or amended and
restated by-laws requiring stockholder approval and the record
date for determining the stockholders of record entitled to vote
on the amendment occurs prior to delivery of the common stock,
you will not be entitled to vote on the amendment, although you
will nevertheless be subject to any changes in the powers,
preferences or special rights of our common stock.
You
should consider the U.S. federal income tax consequences of
owning 2029 notes.
We and each holder agree in the indenture to treat the 2029
notes as contingent payment debt instruments subject
to the contingent payment debt regulations and, for purposes of
those regulations, to treat the cash and the fair market value
of any stock received upon any conversion of the 2029 notes as a
contingent payment. As a result, a holder will be required to
include amounts in income, as original issue discount, in
advance of cash such holder receives on a 2029 note, and to
accrue interest on a constant yield to maturity basis at a rate
comparable to the rate at which we would borrow in a fixed-rate,
noncontingent, nonconvertible borrowing (which we have estimated
to be 12.5%, compounded semi-annually), even though the 2029
notes will have a significantly lower yield to maturity. You may
obtain the actual comparable yield of the 2029 notes determined
as of the initial issue date by submitting a written request for
it to us at General Cable Corporation, 4 Tesseneer Drive,
Highland Heights, Kentucky
41076-9753,
Attention: Chief Financial Officer. A holder will recognize
taxable income significantly in excess of cash received while
the 2029 notes are outstanding. In addition, a holder will
recognize ordinary income, if any, upon a sale, exchange,
conversion, repurchase or redemption of the 2029 notes at a
gain. Holders are urged to consult their own tax advisors as to
the U.S. federal, state and other tax consequences of
acquiring, owning and disposing of the 2029 notes and shares of
common stock. See Material U.S. Federal Income Tax
Considerations.
In
connection with any conversion rate adjustments, you may be
deemed to receive a taxable distribution without the receipt of
any cash.
The conversion rate of the 2029 notes will be adjusted in
certain circumstances. Under Section 305(c) of the Internal
Revenue Code of 1986, as amended, or the Code, adjustments, or
failures to make adjustments, that have the effect of increasing
your proportionate interest in our assets or earnings may in
some circumstances result in a deemed distribution to you.
Certain of the possible conversion rate adjustments provided in
the 2029 notes (including, without limitation, adjustments in
respect of taxable dividends to
39
holders of our common stock) will result in deemed distributions
to the holders of 2029 notes even though they have not received
any cash or property as a result of such adjustments. Any deemed
distributions will be taxable as a dividend, return of capital
or capital gain in accordance with the earnings and profits
rules under the Code. If you are a
non-U.S. holder,
such deemed dividend may be subject to U.S. federal
withholding tax at a 30% rate or such lower rate as may be
specified by an applicable income tax treaty. See Material
U.S. Federal Income Tax Considerations.
We
could enter into various transactions, such as acquisitions,
refinancings, recapitalizations or other highly leveraged
transactions, which would not constitute a fundamental change
under the terms of the 2029 notes, but which could nevertheless
increase the amount of our outstanding debt at such time, or
adversely affect our capital structure or credit ratings, or
otherwise adversely affect holders of the 2029
notes.
Under the terms of the 2029 notes, a variety of acquisition,
refinancing, recapitalization or other highly leveraged
transactions would not be considered fundamental change
transactions. As a result, we could enter into any such
transactions without being required to make an offer to
repurchase the 2029 notes even though the transaction could
increase the total amount of our outstanding debt, adversely
affect our capital structure or credit ratings or otherwise
materially adversely affect the holders of the 2029 notes. In
addition, if such transaction is not considered a fundamental
change under the terms of the 2029 notes, holders may not be
able to convert their 2029 notes or be eligible to receive a
make whole premium adjustment in connection with such conversion.
Provisions
of the 2029 notes, our 2012 notes, our 2013 notes and our other
debt securities could discourage an acquisition of us by a third
party.
Certain provisions of the 2029 notes, our 2012 notes, our 2013
notes and our other debt securities could make it more difficult
or more expensive for a third party to acquire us. Upon the
occurrence of certain transactions constituting a fundamental
change, holders of the 2029 notes, our 2012 notes, our 2013
notes and our other debt securities will have the right, at
their option, to require us to repurchase all or a portion of
their 2029 notes, their 2012 notes, their 2013 notes or their
other debt securities. In addition, the occurrence of certain
change of control transactions may result in the 2029 notes, our
2012 notes, our 2013 notes or our other debt securities becoming
convertible for additional shares or require us to repurchase
such notes or securities at the option of the holder thereof,
which may have the effect of making an acquisition of us less
attractive. We may also be required to issue additional shares
upon conversion or provide for conversion into the
acquirers capital stock in the event of certain change of
control transactions.
The
issuance of shares of common stock upon conversion of any of our
2012 notes, our 2013 notes, our 2029 notes or our Series A
preferred stock would have a dilutive effect on our existing
security holders, and this future potential dilution may
encourage short selling by market participants.
The issuance of shares of our common stock upon the conversion
of our 2012 notes, our 2013 notes, our 2029 notes or our
Series A preferred stock would dilute the ownership
interests of our existing security holders. The issuance of
shares of our common stock upon conversion of these convertible
securities also may have the effect of reducing our net income
per share and could reduce the market price of our common stock
unless revenue growth or cost savings sufficient to offset the
effect of such issuance can be achieved. In addition, the
existence of our 2012 notes, our 2013 notes, the 2029 notes or
our Series A preferred stock may encourage short selling by
market participants due to this potential dilution.
It may
be difficult to enforce judgments against us in foreign
jurisdictions.
Because a significant portion of our assets are located outside
the United States, any judgments obtained in the United States
against us, including judgments with respect to the payment of
principal, premium, interest or other amounts payable with
respect to the 2029 notes, may be not collectible within the
United States. If holders of 2029 notes intend to enforce a
judgment obtained in the United States against our assets
located outside the United States, they may be subject to
additional procedures and other difficulties that
40
would not be required for enforcement of judgments in the United
States, and there can be no assurance that such courts will be
required to enforce any final judgment obtained in a court
located in the United States.
Risks
Related to Our Business
Our
net sales, net income and growth depend largely on the economic
strength of the geographic markets that we serve, and if these
markets become weaker, we would suffer decreased sales and net
income.
Many of our customers use our products as components in their
own products or in projects undertaken for their customers. Our
ability to sell our products is largely dependent on general
economic conditions, including how much our customers and
end-users spend on power transmission and distribution
infrastructures, industrial manufacturing assets, new
construction and building, information technology and
maintaining or reconfiguring their communications networks.
Should the economic slowdown in the United States and European
markets worsen or expand more fully to other parts of the world,
we would suffer a decrease in sales and net income.
The
markets for our products are highly competitive, and if we fail
to invest in product development, productivity improvements and
customer service and support, sales of our products could be
adversely affected.
The markets for copper, aluminum and fiber optic wire and cable
products are highly competitive, and some of our competitors may
have greater financial resources than we have. We compete with
at least one major competitor in each of our business segments.
Many of our products are made to common specifications and
therefore may be fungible with competitors products.
Accordingly, we are subject to competition in many markets on
the basis of price, delivery time, customer service and our
ability to meet specific customer needs.
We believe that competitors will continue to improve the design
and performance of their products and to introduce new products
with competitive price and performance characteristics. We
expect that we will be required to continue to invest in product
development, productivity improvements and customer service and
support in order to compete in our markets. Furthermore, an
increase in imports of competing products could adversely affect
our sales on a
region-by-region
basis.
Our
business is subject to the economic, political and other risks
of maintaining facilities and selling products in foreign
countries.
During the six fiscal months ended July 3, 2009,
approximately 65% of our sales and approximately 77% of our
assets were in markets outside North America. Our operations
outside North America generated approximately 96% of our cash
flows from operations during this period. Our financial results
may be adversely affected by significant fluctuations or
devaluations in the value of the U.S. dollar against
foreign currencies or by the enactment of exchange controls or
foreign governmental or regulatory restrictions on the transfer
of funds. In addition, negative tax consequences relating to the
repatriation of certain foreign income may adversely affect our
cash flows.
Furthermore, our foreign operations are subject to risks
inherent in maintaining operations abroad, such as economic and
political destabilization, international conflicts, restrictive
actions by foreign governments, nationalizations or
expropriations, changes in regulatory requirements, the
difficulty of effectively managing diverse global operations,
adverse foreign tax laws and the threat posed by potential
pandemics in countries that do not have the resources necessary
to deal with such outbreaks. Over time, we intend to continue to
expand our foreign operations, which would serve to exacerbate
these risks and their potential effect on our business,
financial position and results of operations. In particular,
with the acquisition of PDIC, we have significant operations in
countries in Central and South America, Africa and Asia.
Economic and political developments in these countries,
including future economic changes or crises (such as inflation,
currency devaluation or recession), government deadlock,
political instability, civil strife, international conflicts,
changes in laws and regulations and expropriation or
nationalization of property or other resources, could impact our
operations or the market value of our common stock and have an
adverse effect on our business, financial
41
condition and results of operations. Although PDIC and its
subsidiaries maintain political risk insurance related to its
operations in a number of countries, any losses we may incur may
not be covered by this insurance and, even if covered, such
insurance may not fully cover such losses. In addition to these
general risks, there are significant country specific risks,
including:
|
|
|
|
|
Brazil and other Latin American countries have historically
experienced uneven periods of economic growth as well as
recession, high inflation, currency devaluation and economic
instability. These countries governments have been known
to intervene in their respective economies in the form of price
controls, currency devaluations, capital controls and limits on
imports.
|
|
|
|
Thailand recently experienced significant political and militant
unrest in certain provinces. The countrys elected
government was overthrown in September 2006, with an elected
government only recently restored.
|
|
|
|
Venezuela has experienced difficult economic conditions,
relatively high levels of inflation, and foreign exchange and
price controls. The President of Venezuela has the authority to
legislate certain areas by decree, and the Venezuelan government
has nationalized or announced plans to nationalize certain
industries and has sought to expropriate certain companies and
property.
|
|
|
|
Algeria has a tumultuous past, characterized by violence and
terrorism. The countrys government has been moderately
successful in neutralizing these threats creating a more
receptive political and social atmosphere.
|
Compliance
with foreign and U.S. laws and regulations applicable to our
international operations, including the Foreign Corrupt
Practices Act, or the FCPA, is difficult and may increase the
cost of doing business in international
jurisdictions.
Various laws and regulations associated with our current
international operations are complex and increase our cost of
doing business. Furthermore, these laws and regulations expose
us to fines and penalties if we fail to comply with them. These
laws and regulations include import and export requirements,
U.S. laws such as the FCPA, and local laws prohibiting
corrupt payments to governmental officials and other corrupt
practices. Although we have implemented policies and procedures
designed to ensure compliance with these laws, there can be no
assurance that our employees, contractors and agents will not
take actions in violation of our policies, particularly as we
expand our operations through organic growth and acquisitions.
Any such violations could subject us to civil or criminal
penalties, including substantial fines or prohibitions on our
ability to offer our wire and cable products in one or more
countries, and could also materially damage our reputation, our
brand, our international expansion efforts, our business and our
operating results. In addition, if we fail to address the
challenges and risks associated with our international expansion
and acquisition strategy, we may encounter difficulties
implementing our strategy, which could impede our growth or harm
our operating results.
Volatility
in the price of copper and other raw materials, as well as fuel
and energy, could adversely affect our businesses.
The costs of copper and aluminum, the most significant raw
materials we use, have been subject to considerable volatility
over the past few years. Volatility in the price of copper,
aluminum, polyethylene, petrochemicals, and other raw materials,
as well as fuel, natural gas and energy, may in turn lead to
significant fluctuations in our cost of sales. Additionally,
sharp increases in the price of copper can also reduce demand if
customers decide to defer their purchases of copper wire and
cable products or seek to purchase substitute products. Although
we attempt to recover copper and other raw material price
changes either in the selling price of our products or through
our commodity hedging programs, there is no assurance that we
can do so successfully or at all in the future.
42
Interruptions
of supplies from our key suppliers may affect our results of
operations and financial performance.
Interruptions of supplies from our key suppliers, including as a
result of catastrophes such as hurricanes, earthquakes, floods
or terrorist activities, could disrupt production or impact our
ability to increase production and sales. All copper and
aluminum rod used in our North American operations is externally
sourced, and our largest supplier of copper rod, Freeport
McMoRan Copper & Gold, Inc., accounted for
approximately 89% of our North American purchases during
the first six fiscal months of 2009, while our largest supplier
of aluminum rod, Alcoa Inc., accounted for approximately 87% of
our North American purchases during the first six fiscal months
of 2009. Our European operations purchase copper and aluminum
rod from many suppliers with each supplier generally providing a
small percentage of the total copper and aluminum rod purchased,
while operations in ROW internally produce the majority of their
copper and aluminum rod production needs and obtain cathode and
ingots from various sources with each supplier generally
providing a small percentage of the total amount of raw
materials purchased. Any unanticipated problems with our copper
or aluminum rod suppliers could have a material adverse effect
on our business. Additionally, we use a limited number of
sources for most of the other raw materials that we do not
produce. We do not have long-term or volume purchase agreements
with most of our suppliers, and may have limited options in the
short-term for alternative supply if these suppliers fail to
continue the supply of material or components for any reason,
including their business failure, inability to obtain raw
materials or financial difficulties. Moreover, identifying and
accessing alternative sources may increase our costs.
Failure
to negotiate extensions of our labor agreements as they expire
may result in a disruption of our operations.
As of July 3, 2009, approximately 49% of our employees were
represented by various labor unions. From January 1, 2004
to July 3, 2009, we have experienced only two strikes,
which were settled on satisfactory terms. There have been no
strikes during the six fiscal months ended July 3, 2009.
We are party to labor agreements with unions that represent
employees at many of our manufacturing facilities. In the United
States, Canada, Chile, Thailand, Venezuela and Zambia, labor
agreements expired at seven facilities during the first six
fiscal months of 2009, representing approximately 9% of total
employees as of July 3, 2009, and agreements at seven
facilities will expire in 2010, representing approximately 14%
of total employees as of July 3, 2009. During the first six
fiscal months of 2009, we successfully renegotiated three labor
agreements and continue to negotiate the remaining four labor
agreements. Labor agreements are generally negotiated on an
annual or
bi-annual
basis unless otherwise noted above and the risk exists that
labor agreements may not be renewed on reasonably satisfactory
terms to us or at all. We cannot predict what issues may be
raised by the collective bargaining units representing our
employees and, if raised, whether negotiations concerning such
issues will be successfully concluded. A protracted work
stoppage could result in a disruption of our operations which
could, in turn, adversely affect our ability to deliver certain
products and our financial results.
Our
inability to continue to achieve productivity improvements may
result in increased costs.
Part of our business strategy is to increase our profitability
by lowering costs through improving our processes and
productivity. In the event we are unable to continue to
implement measures improving our manufacturing techniques and
processes, we may not achieve desired efficiency or productivity
levels and our manufacturing costs may increase. In addition,
productivity increases are related in part to factory
utilization rates. Unanticipated decreases in utilization rates
may adversely impact productivity.
Changes
in industry standards and regulatory requirements may adversely
affect our business.
As a manufacturer and distributor of wire and cable products for
customers that operate in various industries, we are subject to
a number of industry standard-setting authorities, such as
Underwriters Laboratories, the Telecommunications Industry
Association, the Electronics Industries Association, the
International Electrotechnical Commission and the Canadian
Standards Association. In addition, many of our products are
43
subject to the requirements of federal, state and local or
foreign regulatory authorities. Changes in the standards and
requirements imposed by such authorities could have an adverse
effect on us. In the event that we are unable to meet any such
new or modified standards when adopted, our business could be
adversely affected.
In addition, changes in the legislative environment could affect
the growth and other aspects of important markets served by us.
The Energy Policy Act of 2005 was enacted to establish a
comprehensive, long-range national energy policy. Among other
things, it provides tax credits and other incentives for the
production of traditional sources of energy, as well as
alternative energy sources, such as wind, wave, tidal and
geothermal power generation systems. Although we believe this
legislation has had a positive impact on us and our financial
results, we cannot be certain that this impact will continue.
Further, we cannot predict the impact, either positive or
negative, that changes in laws or industry standards may have on
our future financial results, cash flows or financial position.
Advancing
technologies, such as fiber optic and wireless technologies, may
continue to make some of our products less
competitive.
Technological developments continue to have an adverse effect on
elements of our business. For example, a continued increase in
the rate of installations using fiber optic systems or an
increase in the cost of copper-based systems may have an adverse
effect on our business. While we do manufacture and sell fiber
optic cables, any further acceleration in the erosion of our
sales of copper cables due to increased market demand for fiber
optic cables would most likely not be offset by an increase in
sales of our fiber optic cables.
Also, advancing wireless technologies, as they relate to network
and communications systems, represent an alternative to certain
copper cables we manufacture and may reduce customer demand for
premise wiring. Traditional telephone companies are facing
increasing competition within their respective territories from,
among others, providers of voice over Internet protocol, or
VoIP, and wireless carriers. Wireless communications depend
heavily on a fiber optic backbone and do not depend as much on
copper-based systems. The increased acceptance and use of VoIP
and wireless technology, or introduction of new wireless or
fiber-optic based technologies, continues to have an adverse
effect on the marketability of our products and our
profitability. Our sales of copper premise cables currently face
downward pressure from wireless and VoIP technology, and the
increased acceptance and use of these technologies has
heightened this pressure and the potential negative impact on
our results of operations.
We are
substantially dependent upon distributors and retailers for
non-exclusive sales of our products and they could cease
purchasing our products at any time.
During 2008 and the first six fiscal months of 2009,
approximately 38% and 35%, respectively, of our domestic net
sales were made to independent distributors and four and three,
respectively, of our ten largest customers were distributors.
Distributors accounted for a substantial portion of sales of our
communications- and industrial-related products. During 2008 and
the first six fiscal months of 2009, approximately 10% and 12%,
respectively, of our domestic net sales were to retailers. The
two largest retailers combined to account for approximately 2%
of our worldwide net sales in each of 2008 and the first six
fiscal months of 2009.
These distributors and retailers are not contractually obligated
to carry our product lines exclusively or for any period of
time. Therefore, these distributors and retailers may purchase
products that compete with our products or cease purchasing our
products at any time. The loss of one or more large distributors
or retailers could have a material adverse effect on our ability
to bring our products to end users and on our results of
operations. Moreover, a downturn in the business of one or more
large distributors or retailers could adversely affect our sales
and could create significant credit exposure.
In
each of our markets, we face pricing pressures that could
adversely affect our results of operations and financial
performance.
We face pricing pressures in each of our markets as a result of
significant competition or over-capacity. While we continually
work toward reducing our costs to respond to the pricing
pressures that may continue,
44
we may not be able to achieve proportionate reductions in costs.
As a result of over-capacity and economic and industry downturn,
pricing pressures have increased in the last several quarters.
While we generally have been successful in raising prices to
recover increased raw material costs, pricing pressures have
continued through the first six fiscal months of 2009, and price
volatility is expected for the foreseeable future. Further
pricing pressures, without offsetting cost reductions, could
adversely affect our financial results.
If
either our uncommitted accounts payable confirming arrangement
or our accounts receivable financing arrangement for our
European operations is terminated, our liquidity may be
negatively impacted.
Our Spanish operations participate in accounts payable
confirming arrangements with several European financial
institutions. We negotiate payment terms with suppliers of
generally 180 days and submit invoices to the financial
institutions with instructions for the financial institutions to
transfer funds from our Spanish operations accounts on the
due date (on the
180
th
day) to the receiving parties to pay the invoices in full. As of
July 3, 2009, the arrangements had a maximum availability
limit of the equivalent of approximately $431.2 million, of
which approximately $192.7 million was drawn. We also have
approximately $138.4 million available under uncommitted,
Euro-denominated facilities in Europe, which allow us to sell at
a discount, with no or limited recourse, a portion of our
accounts receivable to financial institutions. As of
July 3, 2009, we have drawn approximately
$34.3 million from these accounts receivable facilities. We
do not have firm commitments from these institutions to purchase
our accounts receivable. Should the availability under these
arrangements be reduced or terminated, we may be required to
repay the outstanding obligations over 180 days and may
have to seek alternative arrangements. We cannot assure you that
alternate arrangements will be available on favorable terms or
at all. Failure to obtain alternative arrangements in such case
would negatively impact our liquidity.
We are
exposed to counterparty risk in our hedging
arrangements.
From time to time we enter into arrangements with financial
institutions to hedge our exposure to fluctuations in commodity
prices, currency and interest rates, including forward contracts
and swap agreements. Recently, a number of financial
institutions similar to those that serve as counterparties to
our hedging arrangements have been adversely affected by the
global credit crisis. The failure of one or more counterparties
to our hedging arrangements to fulfill or renew their
obligations to us could adversely affect our results of
operations.
As a
result of market and industry conditions, we may be required to
recognize impairment charges for our long-lived assets,
including goodwill, or in the event we close additional
plants.
In accordance with generally accepted accounting principles, we
periodically assess our assets, including goodwill, to determine
if they are impaired. Significant negative industry or economic
trends, disruptions to our business, unexpected significant
changes or planned changes in use of the assets, divestitures
and market capitalization declines may result in impairments to
goodwill and other long-lived assets. Future impairment charges
could significantly affect our results of operations in the
period recognized.
During the fourth quarter of 2007, we rationalized outside plant
telecommunication products manufacturing capacity due to
continued declines in telecommunications cable demand. We closed
a portion of our telecommunications capacity located primarily
at our Tetla, Mexico facility and have taken a pre-tax charge to
write-off certain production equipment of $6.6 million.
This action has freed approximately 100,000 square feet of
manufacturing space, which has been converted and is being
utilized for other products for the Central and South American
markets. Future rationalization of plant manufacturing capacity
could result in charges that affect our results of operations in
the period recognized.
As a
result of market and industry conditions, we may be required to
reduce our recorded inventory values, which would result in
charges against income.
If, as a result of volatile copper prices, we are not able to
recover the LIFO value of our inventory in a period when
replacement costs are lower than the LIFO value of the
inventory, we would be required to take a
45
charge to recognize an adjustment of LIFO inventory to market
value. If LIFO inventory quantities are reduced in a future
period when replacement costs exceed the LIFO value of the
inventory, we would experience an increase in reported earnings.
Conversely, if LIFO inventory quantities are reduced in a future
period when replacement costs are lower than the LIFO value of
the inventory, we would experience a decline in reported
earnings.
We are
subject to certain asbestos litigation and unexpected judgments
or settlements that could have a material adverse effect on our
financial results.
As of July 3, 2009, there were 1,128 pending non-maritime
asbestos cases involving our subsidiaries. The majority of these
cases involve plaintiffs alleging exposure to
asbestos-containing cable manufactured by our predecessors. In
addition to our subsidiaries, numerous other wire and cable
manufacturers have been named as defendants in these cases. Our
subsidiaries have also been named, along with numerous other
product manufacturers, as defendants in 33,550 suits in which
plaintiffs alleged that they suffered an asbestos-related injury
while working in the maritime industry. These cases are referred
to as MARDOC cases and are currently managed under the
supervision of the U.S. District Court for the Eastern
District of Pennsylvania. On May 1, 1996, the District
Court ordered that all pending MARDOC cases be administratively
dismissed without prejudice and the cases cannot be reinstated,
except in certain circumstances involving specific proof of
injury. We cannot assure you that any judgments or settlements
of the pending non-maritime
and/or
MARDOC asbestos cases or any cases which may be filed in the
future will not have a material adverse effect on our financial
results, cash flows or financial position. Moreover, certain of
our insurers may become financially unstable and in the event
one or more of these insurers enter into insurance liquidation
proceedings, we will be required to pay a larger portion of the
costs incurred in connection with these cases. While the
cumulative average settlement through July 3, 2009 has been
approximately $475 per case, the average settlement paid to
resolve litigation has increased significantly above that
amount, reaching $5,900 per case for litigation settled in 2009,
as the mix of cases currently being listed for trial in state
courts and those which may be listed in the future, which may
need to be resolved, generally involve more serious asbestos
related injuries.
Environmental
liabilities could potentially adversely impact us and our
affiliates.
We are subject to federal, state, local and foreign
environmental protection laws and regulations governing our
operations and the use, handling, disposal and remediation of
hazardous substances currently or formerly used by us and our
affiliates. A risk of environmental liability is inherent in our
and our affiliates current and former manufacturing
activities in the event of a release or discharge of a hazardous
substance generated by us or our affiliates. Under certain
environmental laws, we could be held jointly and severally
responsible for the remediation of any hazardous substance
contamination at our facilities and at third party waste
disposal sites and could also be held liable for any
consequences arising out of human exposure to such substances or
other environmental damage. We and our affiliates have been
named as potentially responsible parties in proceedings that
involve environmental remediation. There can be no assurance
that the costs of complying with environmental, health and
safety laws and requirements in our current operations or the
liabilities arising from past releases of, or exposure to,
hazardous substances, will not result in future expenditures by
us that could materially and adversely affect our financial
results, cash flows or financial condition.
Growth
through acquisition has been a significant part of our strategy
and we may not be able to successfully identify or integrate
acquisitions.
Growth through acquisition has been, and is expected to continue
to be, a significant part of our strategy. We regularly evaluate
possible acquisition candidates. We cannot assure you that we
will be successful in identifying, financing and closing
acquisitions at favorable prices and terms. Potential
acquisitions may require us to issue additional shares of stock
or obtain additional or new financing. The issuance of shares of
our common or preferred stock in connection with potential
acquisitions may dilute the value of shares held by our then
existing equity holders. Further, we cannot assure you that we
will be successful in integrating any such acquisitions that are
completed. Integration of any such acquisitions may require
substantial management,
46
financial and other resources and may pose risks with respect to
production, customer service and market share of existing
operations. In addition, we may acquire businesses that are
subject to technological or competitive risks, and we may not be
able to realize the benefits originally expected from such
acquisitions.
We
have assumed substantially all of the liabilities of the PDIC
operations, which may expose us to additional risks and
uncertainties that we would not face if the acquisition had not
occurred.
As a result of the PDIC acquisition, we succeeded to
substantially all of the liabilities associated with the wire
and cable business we acquired, which may include, without
limitation:
|
|
|
|
|
environmental risks and liabilities related to the operation of
the acquired assets;
|
|
|
|
risks associated with these operations in various foreign
countries, including in Brazil, China, Colombia, India,
Thailand, Venezuela and Zambia;
|
|
|
|
existing product liability claims with respect to the acquired
wire and cable products;
|
|
|
|
other existing litigation and tax liabilities involving the
acquired wire and cable business;
|
|
|
|
issues relating to compliance with the Sarbanes-Oxley Act of
2002, including issues relating to internal control over
financial reporting, or other applicable laws;
|
|
|
|
issues related to debt assumed in connection with the
acquisition; and
|
|
|
|
employee and employee benefit liabilities.
|
In addition to the risks set forth above, we may discover
additional information, risks or uncertainties about this
business that may adversely affect us. An acquisition of
operations in many foreign countries, such as this acquisition,
makes it extremely difficult for the acquirer to discover and
adequately protect itself against all potentially adverse
liabilities, risks or uncertainties that exist or may arise.
Based on all of the foregoing liabilities, risks and
uncertainties, there can be no assurance that the acquisition
will not, in fact, have a negative impact on our business or
financial results.
Subject to certain limitations and exceptions, the stock
purchase agreement we entered into in connection with the
acquisition provides us with indemnification rights for losses
we incur in connection with:
|
|
|
|
|
a breach by the sellers of specified representations and
warranties;
|
|
|
|
a breach by the sellers of a covenant in the stock purchase
agreement; or
|
|
|
|
specified environmental and tax liabilities.
|
Our right to seek indemnification for such losses is limited by
the terms of the stock purchase agreement, which requires us to
absorb specified amounts of losses before we may seek
indemnification. Moreover, the maximum amount of indemnity we
may seek under the stock purchase agreement is limited.
Furthermore, it may be extremely difficult for us to prove that
a loss we incur was caused by a specified breach of a covered
representation or warranty or covenant. Except in the case of
fraud and as to available equitable remedies, our right to seek
indemnification will be the exclusive remedy we may pursue under
the stock purchase agreement for any losses we incur in
connection with the acquisition.
If we are unable to prove a breach of a representation, warranty
or covenant necessary to support an indemnification claim, if a
claim or loss we incur is not covered by these indemnification
provisions, or if the total amount of liabilities and
obligations we incur in the acquisition exceeds the amount of
indemnification provided, we may be responsible to pay
unforeseen additional expenses and costs. Furthermore, any claim
by us for indemnification under the stock purchase agreement may
be contested, which could have the effect of delaying or
ultimately preventing our receipt of remuneration for such a
claim. As a result, our business may be materially adversely
affected and our stock price could decline.
47
Terrorist
and other attacks or acts of war may adversely affect the
markets in which we operate and our profitability.
The attacks of September 11, 2001 and subsequent events,
including the military actions in Afghanistan, Iraq and
elsewhere in the Middle East, have caused and may continue to
cause instability in our markets and have led, and may continue
to lead to, further armed hostilities or further acts of
terrorism worldwide, which could cause further disruption in our
markets. Acts of terrorism and those of guerilla groups or drug
cartels may impact any or all of our facilities and operations,
or those of our customers or suppliers and may further limit or
delay purchasing decisions of our customers. Depending on their
magnitude, these or similar acts could have a material adverse
effect on our business, financial results, cash flows and
financial position.
We carry insurance coverage on our facilities of types and in
amounts that we believe are in line with coverage customarily
obtained by owners of similar properties. We continue to monitor
the state of the insurance market in general and the scope and
cost of coverage for acts of terrorism and similar acts in
particular, but we cannot anticipate what coverage will be
available on commercially reasonable terms in future policy
years. Currently, we do not carry terrorism insurance coverage.
If we experience a loss that is uninsured or that exceeds policy
limits, we could lose the capital invested in the damaged
facilities, as well as the anticipated future net sales from
those facilities. Depending on the specific circumstances of
each affected facility, it is possible that we could be liable
for indebtedness or other obligations related to the facility.
Any such loss could materially and adversely affect our
business, financial results, cash flows and financial position.
If we
fail to retain our key employees, our business may be
harmed.
Our success has been largely dependent on the skills, experience
and efforts of our key employees and the loss of the services of
any of our executive officers or other key employees, without a
properly executed transition plan, could have an adverse effect
on us. The loss of our key employees who have intimate knowledge
of our manufacturing process could lead to increased competition
to the extent that those employees are hired by a competitor and
are able to recreate our manufacturing process. Our future
success will also depend in part upon our continuing ability to
attract and retain highly qualified personnel, who are in great
demand.
Declining
returns in the investment portfolio of our defined benefit
pension plans and changes in actuarial assumptions could
increase the volatility in our pension expense and require us to
increase cash contributions to the plans.
We sponsor defined benefit pension plans around the world.
Pension expense for the defined benefit pension plans sponsored
by us is determined based upon a number of actuarial
assumptions, including an expected long-term rate of return on
assets and discount rate. The use of these assumptions makes our
pension expense and our cash contributions subject to
year-to-year
volatility. As of December 31, 2008, 2007 and 2006, the
defined benefit pension plans were underfunded by approximately
$122.2 million, $72.5 million and $35.7 million,
respectively, based on the actuarial methods and assumptions
utilized for purposes of the applicable accounting rules and
interpretations. We have experienced volatility in our pension
expense and in our cash contributions to our defined benefit
pension plans. Pension expense for our defined benefit pension
plans increased from $4.0 million for the first six fiscal
months of 2008 to $8.1 million for the first six fiscal
months of 2009, and our required cash contributions for each
period were $2.2 million and $3.6 million,
respectively. We estimate our 2009 pension expense for our
defined benefit pension plans will increase approximately
$8.5 million from 2008. In the event that actual results
differ from the actuarial assumptions or actuarial assumptions
are changed, the funded status of our defined benefit pension
plans may change and any such deficiency could result in
additional charges to equity and an increase in future pension
expense and cash contributions.
48
An
ownership change could result in a limitation of the use of our
net operating losses.
As of December 31, 2008, we had U.S. net operating
losses, or NOL, carryforwards of approximately $5.4 million
that are subject to an annual limitation under Section 382
of the Code. This NOL carryforward is scheduled to expire at
December 31, 2009. Our ability to utilize this NOL
carryforward, including any future NOL carryforwards that may
arise, may be further limited by Section 382 if we undergo
an ownership change as a result of the sale of our stock by
holders of our equity securities or as a result of subsequent
changes in the ownership of our outstanding stock. We would
undergo an ownership change if, among other things, the
stockholders, or group of stockholders, who own or have owned,
directly or indirectly, 5% or more of the value of our stock or
are otherwise treated as 5% stockholders under Section 382
and the regulations promulgated thereunder increase their
aggregate percentage ownership of our stock by more than
50 percentage points over the lowest percentage of our
stock owned by these stockholders at any time during the testing
period, which is generally the three-year period preceding the
potential ownership change. In the event of an ownership change,
Section 382 imposes an annual limitation on the amount of
post-ownership change taxable income a corporation may offset
with pre-ownership change NOL carryforwards and certain
recognized built-in losses. The limitation imposed by
Section 382 for any post-change year would be determined by
multiplying the value of our stock immediately before the
ownership change (subject to certain adjustments) by the
applicable long-term tax-exempt rate in effect at the time of
the ownership change. Any unused annual limitation may be
carried over to later years, and the limitation may under
certain circumstances be increased by built-in gains which may
be present in assets held by us at the time of the ownership
change that are recognized in the five-year period after the
ownership change.
Risks
Related to Our Capital Stock
Our
stock price has been and continues to be volatile, and our
ability to pay dividends on our common stock is
limited.
The price of our common stock may fluctuate as a result of
various factors, such as:
|
|
|
|
|
announcements relating to significant corporate transactions;
|
|
|
|
operating and stock price performance of companies that
investors deem comparable to us;
|
|
|
|
sales or the expectation of sales of a substantial number of
shares of our common stock in the public market;
|
|
|
|
changes in government regulation or proposals relating
thereto; and
|
|
|
|
general stock market fluctuations unrelated to our operating
performance.
|
We do not expect to pay cash dividends on our common stock in
the foreseeable future. Payment of dividends on our common stock
will depend on the earnings and cash flows of our business and
that of our subsidiaries, and on our subsidiaries ability
to pay dividends or to advance or repay funds to us. Before
declaring any dividend, our board of directors will consider
factors that ordinarily affect dividend policy, such as
earnings, cash flow, estimates of future earnings and cash flow,
business conditions, regulatory factors, our financial condition
and other matters within its discretion, as well as contractual
restrictions on our ability to pay dividends. We may not be able
to pay dividends in the future or, if paid, we cannot assure you
that the dividends will be in the same amount or with the same
frequency as in the past.
Under the Delaware General Corporation Law, we may pay
dividends, in cash or otherwise, only if we have surplus in an
amount at least equal to the amount of the relevant dividend
payment. Any payment of cash dividends will depend upon our
financial condition, capital requirements, earnings and other
factors deemed relevant by our board of directors. Further, our
senior secured credit facility and the indenture governing our
2015 notes and our 2017 notes limit our ability to pay cash
dividends, including cash dividends on our common stock. In
addition, the certificate of designations for our Series A
preferred stock prohibits us from the payment of any cash
dividends on our common stock if we are not current on dividend
payments with
49
respect to our Series A preferred stock. Agreements
governing future indebtedness will likely contain restrictions
on our ability to pay cash dividends.
Future
issuances of shares of our common stock may depress its market
price.
Sales or issuances of substantial numbers of additional shares
of common stock, including shares of common stock underlying our
2012 notes, our 2013 notes and the 2029 notes and shares of our
outstanding Series A preferred stock, as well as sales of
shares that may be issued in connection with future
acquisitions, or the perception that such sales could occur, may
have a harmful effect on prevailing market prices for our common
stock, our convertible securities, including the 2029 notes and
our 2012 notes, and our ability to raise additional capital in
the financial markets at a time and price favorable to us. Our
amended and restated certificate of incorporation, as amended,
provides that we have authority to issue 200 million shares
of common stock. As of October 21, 2009, there were
approximately 52.0 million shares of common stock
outstanding (net of treasury shares), approximately
1.2 million shares of common stock issuable upon the
exercise of currently outstanding stock options and
approximately 0.4 million shares of common stock issuable
upon conversion of our outstanding Series A preferred
stock. In addition, a maximum of approximately 9.0 million
shares of common stock may be issuable upon conversion of our
2013 notes and related guarantees and a maximum of approximately
7.0 million shares of common stock may be issuable due to
the issuance of warrants we issued in connection with the
offering of our 2013 notes and related guarantees. Also,
additional shares of common stock may be issuable upon
conversion of any 2012 notes that remain outstanding at the
expiration of the exchange offer. Based on the minimum
conversion price of $36.75 with respect to the 2029 notes, a
maximum of approximately 12.0 million shares of common
stock would be issuable upon conversion in full of approximately
$439.4 million aggregate principal amount of the 2029 notes
to be offered hereby, to the extent that all such 2029 notes are
issued in the exchange offer. All of the shares of our common
stock that could be issued pursuant to conversions of our 2012
notes, our 2013 notes and, to the extent issued in the exchange
offer, our 2029 notes, by holders who are not our affiliates
will be freely tradable by such holders.
Our
convertible note hedge and warrant transactions may affect the
trading price of our common stock.
In connection with the issuance of our 2013 notes, we entered
into convertible note hedge transactions with one or more of the
then participating underwriters or their affiliates, referred to
as the counterparties. The convertible note hedge transactions
are comprised of purchased call options and sold warrants. The
purchased call options are expected to reduce our exposure to
potential dilution upon the conversion of our 2013 notes. We
also entered into warrant transactions with such counterparties.
The sold warrants have an exercise price that is approximately
92.4% higher than the closing price of our common stock on the
date our 2013 notes were priced. The warrants are expected to
provide us with some protection against increases in our stock
price over the conversion price per share with respect to our
2013 notes. In connection with these transactions, the
counterparties, or their affiliates:
|
|
|
|
|
may enter into various
over-the-counter
derivative transactions or purchase or sell our common stock in
secondary market transactions; and
|
|
|
|
may enter into, or may unwind, various
over-the-counter
derivatives or purchase or sell our common stock in secondary
market transactions, including during any conversion reference
period with respect to a conversion of our 2013 notes.
|
These activities may have the effect of increasing, or
preventing a decline in, the market price of our common stock.
In addition, any hedging transactions by the counterparties, or
their affiliates, including during any conversion reference
period with respect to our 2013 notes, may have an adverse
impact on the trading price of our common stock. The
counterparties, or their affiliates, are likely to modify their
hedge positions from time to time prior to conversion or
maturity of our 2013 notes by purchasing and selling shares of
our common stock, other of our securities, or other instruments,
including
over-the-counter
derivative instruments, that they may wish to use in connection
with such hedging. In addition, we intend to exercise our
purchased call options whenever our 2013 notes are converted,
although we are not required to do so. In order to unwind any
hedge positions with respect to our exercise of the purchased
call options, the counterparties or their
50
affiliates would expect to sell shares of common stock in
secondary market transactions or unwind various
over-the-counter
derivative transactions with respect to our common stock during
the conversion reference period for any 2013 notes that may be
converted.
The effect, if any, of these transactions and activities in
connection with our 2013 notes on the market price of our common
stock will depend in part on market conditions and cannot be
ascertained at this time, but any of these activities could
adversely affect the trading price of our common stock and, as a
result, the number of shares and value of the common stock
received upon conversion of our 2012 notes, our 2013 notes or
the 2029 notes.
Issuances
of additional series of preferred stock could adversely affect
holders of our common stock.
Our board of directors is authorized to issue additional series
of preferred stock without any action on the part of our
stockholders. Our board of directors also has the power, without
stockholder approval, to set the terms of any such series of
preferred stock that may be issued, including voting rights,
conversion rights, dividend rights, preferences over our common
stock with respect to dividends or if we liquidate, dissolve or
wind up our business and other terms. If we issue preferred
stock in the future that has preference over our common stock
with respect to the payment of dividends or upon our
liquidation, dissolution or
winding-up,
or if we issue preferred stock with voting rights that dilute
the voting power of our common stock, the rights of holders of
our common stock or the market price of our common stock could
be adversely affected.
Provisions
in our constituent documents could make it more difficult to
acquire our company.
Our amended and restated certificate of incorporation and
amended and restated by-laws contain provisions that may
discourage, delay or prevent a third party from acquiring us,
even if doing so would be beneficial to our stockholders. Under
our amended and restated certificate of incorporation, only our
board of directors may call special meetings of stockholders,
and stockholders must comply with advance notice requirements
for nominating candidates for election to our board of directors
or for proposing matters that can be acted upon by stockholders
at stockholder meetings. Directors may be removed by
stockholders only for cause and only by the effective vote of at
least
66
2
/
3
%
of the voting power of all shares of capital stock then entitled
to vote generally in the election of directors, voting together
as a single class. Additionally, the severance policy applicable
to our executive officers may have the effect of making a
transaction that would constitute a change of control more
expensive and, therefore, less attractive.
Pursuant to our amended and restated certificate of
incorporation, our board of directors may by resolution
establish one or more series of preferred stock, having such
number of shares, designation, relative voting rights, dividend
rates, conversion rights, liquidation or other rights,
preferences and limitations as may be fixed by our board of
directors without any further stockholder approval. Such rights,
preferences, privileges and limitations as may be established,
as well as provisions related to our 2012 notes, our 2013 notes
and the 2029 notes that may entitle holders of those notes to
receive make whole or other payments upon the consummation of a
change of control or other fundamental transaction, could have
the further effect of impeding or discouraging the acquisition
of control of our company.
51
SELECTED
HISTORICAL FINANCIAL INFORMATION
The selected historical consolidated financial information for
the years ended December 31, 2006, 2007 and 2008 and as of
December 31, 2007 and 2008 was derived from our audited
consolidated financial statements incorporated by reference into
this prospectus. The selected consolidated financial information
for the years ended December 31, 2004 and 2005 and as of
December 31, 2004 and 2005 was derived from our audited
consolidated financial statements that are not incorporated by
reference into this prospectus. The summary consolidated
financial information for the six fiscal months ended
June 27, 2008 and July 3, 2009 and as of July 3,
2009 was derived from our unaudited consolidated financial
statements incorporated by reference into this prospectus,
which, in our opinion, include all adjustments (consisting of
normal recurring adjustments) necessary for a fair statement of
the financial information for such periods. The financial
information for the years ended and as of December 31,
2006, 2007 and 2008, and for the six fiscal months ended
June 27, 2008, reflects the retrospective implementation of
FSP APB
14-1
as to the 2012 notes and the 2013 notes. The adoption of FSP APB
14-1
did not
impact 2004 or 2005, and the financial information for the years
ended and as of December 31, 2004 and 2005 has not been
adjusted.
The following selected historical financial information
presented below should be read in conjunction with
Managements Discussion and Analysis of Financial
Condition and Results of Operations and our consolidated
financial statements and the notes thereto incorporated by
reference from our Current Report on
Form 8-K
and our Quarterly Report on
Form 10-Q
for the fiscal quarter ended July 3, 2009, each filed with
the SEC on August 12, 2009. The historical financial
information presented below may not be indicative of our future
performance.
52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
Six Fiscal Months Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 27,
|
|
|
July 3,
|
|
|
|
2004
|
|
|
2005(1)
|
|
|
2006(2)(3)
|
|
|
2007(2)(4)(5)
|
|
|
2008(2)(4)
|
|
|
2008(2)(4)
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
(Unaudited)
|
|
|
|
(In millions, except per share information)
|
|
|
Statement of Operations Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
1,970.7
|
|
|
$
|
2,380.8
|
|
|
$
|
3,665.1
|
|
|
$
|
4,614.8
|
|
|
$
|
6,230.1
|
|
|
$
|
3,311.2
|
|
|
$
|
2,174.4
|
|
Cost of sales
|
|
|
1,756.0
|
|
|
|
2,110.1
|
|
|
|
3,194.1
|
|
|
|
3,952.1
|
|
|
|
5,427.7
|
|
|
|
2,871.2
|
|
|
|
1,810.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
214.7
|
|
|
|
270.7
|
|
|
|
471.0
|
|
|
|
662.7
|
|
|
|
802.4
|
|
|
|
440.0
|
|
|
|
364.2
|
|
Selling, general and administrative expenses
|
|
|
158.2
|
|
|
|
172.2
|
|
|
|
235.1
|
|
|
|
296.6
|
|
|
|
381.0
|
|
|
|
194.1
|
|
|
|
176.7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
56.5
|
|
|
|
98.5
|
|
|
|
235.9
|
|
|
|
366.1
|
|
|
|
421.4
|
|
|
|
245.9
|
|
|
|
187.5
|
|
Other income (expense)
|
|
|
(1.2
|
)
|
|
|
(0.5
|
)
|
|
|
(0.1
|
)
|
|
|
(3.4
|
)
|
|
|
(27.2
|
)
|
|
|
(0.4
|
)
|
|
|
10.1
|
|
Interest expense, net
|
|
|
(35.9
|
)
|
|
|
(37.0
|
)
|
|
|
(36.7
|
)
|
|
|
(48.5
|
)
|
|
|
(91.8
|
)
|
|
|
(42.5
|
)
|
|
|
(42.8
|
)
|
Loss on extinguishment of debt
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(25.3
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations before income taxes
|
|
|
19.4
|
|
|
|
61.0
|
|
|
|
199.1
|
|
|
|
288.9
|
|
|
|
302.4
|
|
|
|
203.0
|
|
|
|
154.8
|
|
Income tax benefit (provision)
|
|
|
18.1
|
|
|
|
(21.8
|
)
|
|
|
(65.3
|
)
|
|
|
(97.6
|
)
|
|
|
(104.9
|
)
|
|
|
(71.2
|
)
|
|
|
(49.5
|
)
|
Equity in net earnings of affiliated companies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
0.4
|
|
|
|
4.6
|
|
|
|
2.8
|
|
|
|
0.3
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from continuing operations including noncontrolling
interest
|
|
|
37.5
|
|
|
|
39.2
|
|
|
|
133.8
|
|
|
|
191.7
|
|
|
|
202.1
|
|
|
|
134.6
|
|
|
|
105.6
|
|
Income on disposal of discontinued operations
|
|
|
0.4
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less: Net income attributable to noncontrolling interest
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(0.2
|
)
|
|
|
(13.1
|
)
|
|
|
(6.8
|
)
|
|
|
(4.2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
37.9
|
|
|
|
39.2
|
|
|
|
133.8
|
|
|
|
191.5
|
|
|
|
189.0
|
|
|
|
127.8
|
|
|
|
101.4
|
|
Less: Series A preferred stock dividends
|
|
|
(6.0
|
)
|
|
|
(22.0
|
)
|
|
|
(0.3
|
)
|
|
|
(0.3
|
)
|
|
|
(0.3
|
)
|
|
|
(0.2
|
)
|
|
|
(0.2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income attributable to common shareholders
|
|
$
|
31.9
|
|
|
$
|
17.2
|
|
|
$
|
133.5
|
|
|
$
|
191.2
|
|
|
$
|
188.7
|
|
|
$
|
127.6
|
|
|
$
|
101.2
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
53
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
Six Fiscal Months Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 27,
|
|
|
July 3,
|
|
|
|
2004
|
|
|
2005(1)
|
|
|
2006(2)(3)
|
|
|
2007(2)(4)(5)
|
|
|
2008(2)(4)
|
|
|
2008(2)(4)
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
(Unaudited)
|
|
|
|
(In millions, except per share information)
|
|
|
Per Share Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings of continuing operations per common share
basic
|
|
$
|
0.81
|
|
|
$
|
0.42
|
|
|
$
|
2.62
|
|
|
$
|
3.66
|
|
|
$
|
3.59
|
|
|
$
|
2.42
|
|
|
$
|
1.95
|
|
Earnings of continuing operations per common share
assuming dilution
|
|
$
|
0.75
|
|
|
$
|
0.41
|
|
|
$
|
2.57
|
|
|
$
|
3.51
|
|
|
$
|
3.54
|
|
|
$
|
2.32
|
|
|
$
|
1.92
|
|
Earnings of discontinued operations per common share
basic
|
|
$
|
0.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings of discontinued operations per common share
assuming dilution
|
|
$
|
0.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Earnings per common share basic(6)
|
|
$
|
0.82
|
|
|
$
|
0.42
|
|
|
$
|
2.62
|
|
|
$
|
3.66
|
|
|
$
|
3.59
|
|
|
$
|
2.42
|
|
|
$
|
1.95
|
|
Earnings (loss) per common share assuming dilution
|
|
$
|
0.75
|
|
|
$
|
0.41
|
|
|
$
|
2.57
|
|
|
$
|
3.51
|
|
|
$
|
3.54
|
|
|
$
|
2.32
|
|
|
$
|
1.92
|
|
Weighted average shares outstanding basic(6)
|
|
|
39.0
|
|
|
|
41.1
|
|
|
|
51.0
|
|
|
|
52.2
|
|
|
|
52.6
|
|
|
|
52.7
|
|
|
|
51.9
|
|
Weighted average shares outstanding assuming dilution
|
|
|
50.3
|
|
|
|
41.9
|
|
|
|
52.0
|
|
|
|
54.6
|
|
|
|
53.4
|
|
|
|
55.0
|
|
|
|
52.8
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31,
|
|
|
|
|
|
|
2004
|
|
|
2005(1)
|
|
|
2006(2)(3)
|
|
|
2007(2)(4)(5)
|
|
|
2008(2)(4)
|
|
|
July 3, 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
|
(In millions)
|
|
|
Balance Sheet Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
36.4
|
|
|
$
|
72.2
|
|
|
$
|
310.5
|
|
|
$
|
325.7
|
|
|
$
|
282.6
|
|
|
$
|
301.3
|
|
Working capital(7)
|
|
$
|
298.0
|
|
|
$
|
378.6
|
|
|
$
|
734.0
|
|
|
$
|
838.8
|
|
|
$
|
1,060.6
|
|
|
$
|
1,249.2
|
|
Property, plant and equipment, net
|
|
$
|
356.0
|
|
|
$
|
366.4
|
|
|
$
|
416.7
|
|
|
$
|
738.8
|
|
|
$
|
880.9
|
|
|
$
|
971.1
|
|
Total assets
|
|
$
|
1,239.3
|
|
|
$
|
1,523.2
|
|
|
$
|
2,215.3
|
|
|
$
|
3,765.6
|
|
|
$
|
3,836.4
|
|
|
$
|
3,841.9
|
|
Total debt
|
|
$
|
374.9
|
|
|
$
|
451.6
|
|
|
$
|
617.7
|
|
|
$
|
1,168.9
|
|
|
$
|
1,254.0
|
|
|
$
|
1,253.1
|
|
Net debt(8)
|
|
$
|
338.5
|
|
|
$
|
379.4
|
|
|
$
|
307.2
|
|
|
$
|
843.2
|
|
|
$
|
971.4
|
|
|
$
|
951.8
|
|
Shareholders equity
|
|
$
|
301.4
|
|
|
$
|
293.3
|
|
|
$
|
553.9
|
|
|
$
|
931.4
|
|
|
$
|
992.1
|
|
|
$
|
1,184.7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
Six Fiscal Months Ended
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
June 27,
|
|
|
July 3,
|
|
|
|
2004
|
|
|
2005(1)
|
|
|
2006(2)(3)
|
|
|
2007(2)(4)(5)
|
|
|
2008(2)(4)
|
|
|
2008(2)(4)
|
|
|
2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Unaudited)
|
|
|
(Unaudited)
|
|
|
|
(In millions, except ratio and metal price data)
|
|
|
Other Information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash flows of operating activities(9)
|
|
$
|
12.5
|
|
|
$
|
121.0
|
|
|
$
|
94.0
|
|
|
$
|
231.7
|
|
|
$
|
229.4
|
|
|
$
|
(60.1
|
)
|
|
$
|
136.3
|
|
Cash flows of investing activities
|
|
$
|
(36.3
|
)
|
|
$
|
(130.5
|
)
|
|
$
|
(95.8
|
)
|
|
$
|
(759.8
|
)
|
|
$
|
(263.3
|
)
|
|
$
|
(126.1
|
)
|
|
$
|
(84.9
|
)
|
Cash flows of financing activities
|
|
$
|
28.8
|
|
|
$
|
52.5
|
|
|
$
|
234.7
|
|
|
$
|
528.1
|
|
|
$
|
29.6
|
|
|
$
|
257.8
|
|
|
$
|
(29.0
|
)
|
Ratio of earnings to fixed charges and preferred dividends(10)
|
|
|
1.2
|
x
|
|
|
1.4
|
x
|
|
|
5.6
|
x
|
|
|
5.0
|
x
|
|
|
3.8
|
x
|
|
|
5.0
|
x
|
|
|
4.3
|
x
|
Average daily COMEX price per pound of copper cathode
|
|
$
|
1.29
|
|
|
$
|
1.68
|
|
|
$
|
3.09
|
|
|
$
|
3.22
|
|
|
$
|
3.13
|
|
|
$
|
3.67
|
|
|
$
|
1.86
|
|
Average daily selling price per pound of aluminum rod
|
|
$
|
0.85
|
|
|
$
|
0.92
|
|
|
$
|
1.22
|
|
|
$
|
1.23
|
|
|
$
|
1.21
|
|
|
$
|
1.33
|
|
|
$
|
0.69
|
|
54
|
|
|
(1)
|
|
This period includes the preliminary opening balance sheet as of
December 31, 2005 for Silec (the wire and cable business of
SAFRAN SA) and Beru S.A., which were acquired in 2005. Due to
the purchase dates, the effects of the acquisitions on the
statement of operations information were not material for the
year ended December 31, 2005.
|
|
(2)
|
|
As adjusted for FSP APB
14-1.
See
Note 2 of the Consolidated Financial Statements for
additional information.
|
|
(3)
|
|
This period includes the effects of the adoption of Statement of
Financial Accounting Standards (SFAS) No. 123 (Revised
2004),
Share-Based Payment
, and SFAS No. 158,
Employers Accounting for Defined Benefit Pension and
Other Postretirement Plans an amendment of FASB
Statements No. 87, 88, 106, and 132(R)
.
|
|
(4)
|
|
As adjusted for SFAS No. 160,
Noncontrolling
Interests in Consolidated Financial Statements
. See
Note 2 of the Consolidated Financial Statements for
additional information.
|
|
(5)
|
|
Includes operating results of the acquisition of the worldwide
wire and cable business of Freeport-McMoRan Copper and Gold,
Inc., which operated as PDIC since October 31, 2007 and the
effects of the adoption of FASB Interpretation No. 48,
Accounting for Uncertainty in Income Taxes
.
|
|
(6)
|
|
As adjusted for FSP EITF
03-6-1,
Determining Whether Instruments Granted in Share-Based
Payment Transactions Are Participating Securities
. See
Note 2 of the Consolidated Financial Statements for
additional information.
|
|
(7)
|
|
Working capital means current assets less current liabilities.
|
|
(8)
|
|
Net debt means our total debt less cash and cash equivalents.
|
|
(9)
|
|
For the year ended December 31, 2007, our operating cash
flows were increased by $25.3 million from a pre-tax loss
on the extinguishment of debt, consisting of $20.5 million
for the inducement premium, and related fees and expenses; and
the write-off of approximately $4.8 million in unamortized
fees and expenses related to our 9.5% senior notes due 2010.
|
|
(10)
|
|
For purposes of calculating the ratio of earnings to fixed
charges and preferred dividends, earnings consist of the sum of
(i) pre-tax income from continuing operations before
adjustment for income or loss from equity investees;
(ii) combined fixed charges and preferred dividends;
(iii) amortization of capitalized interest;
(iv) distributed income of equity investees; and
(v) our share of pre-tax losses of equity investees for
which charges arising from guarantees are included in fixed
charges, minus (vi) capitalized interest;
(vii) preference security dividend requirements of
consolidated subsidiaries; and (viii) the noncontrolling
interest in pre-tax income of subsidiaries that have not
incurred fixed charges. Combined fixed charges and preferred
dividends include: (a) interest expense, whether expensed
or capitalized; (b) amortization of debt issuance cost;
(c) the portion of rent expense representative of the
interest factor; and (d) the amount of pre-tax earnings
required to cover preferred stock dividends and any accretion in
the carrying value of the preferred stock.
|
USE OF
PROCEEDS
Subject to the terms and conditions set forth in the prospectus,
the 2029 notes will be issued in the exchange offer in exchange
for any and all 2012 notes that are validly tendered and not
validly withdrawn as of the expiration time. We will not receive
any cash proceeds from the exchange of the 2029 notes for the
2012 notes pursuant to the exchange offer or upon any conversion
of the 2029 notes into our common stock.
55
CAPITALIZATION
The following table sets forth our capitalization as of
July 3, 2009 on:
|
|
|
|
|
an actual basis; and
|
|
|
|
an as adjusted basis to reflect the consummation of the exchange
offer, assuming all $475.0 million in outstanding principal
amount of 2012 notes are exchanged in the exchange offer and
after deducting (i) anticipated cash interest payments of
approximately $0.5 million in the aggregate to holders of
2012 notes in the exchange offer and (ii) payments of
approximately $14.5 million in the aggregate for the
maximum fee payable to the dealer managers and our other
estimated expenses of the exchange offer.
|
This table should be read in conjunction with
Managements Discussion and Analysis of Financial
Condition and Results of Operations and our financial
statements, including all related notes, incorporated by
reference in this prospectus. See Where You Can Find More
Information and Incorporation of Certain Documents
by Reference.
|
|
|
|
|
|
|
|
|
|
|
As of July 3, 2009
|
|
|
|
Actual
|
|
|
As Adjusted
|
|
|
|
(Unaudited, in millions)
|
|
|
Cash and cash equivalents(1)
|
|
$
|
301.3
|
|
|
$
|
286.3
|
|
|
|
|
|
|
|
|
|
|
Debt:
|
|
|
|
|
|
|
|
|
Senior secured credit facility(2)
|
|
|
10.6
|
|
|
|
10.6
|
|
Spanish term loans and credit facilities
|
|
|
57.0
|
|
|
|
57.0
|
|
Senior convertible notes due 2012, net of debt discount
|
|
|
387.4
|
|
|
|
|
|
Senior convertible notes due 2013, net of debt discount
|
|
|
269.7
|
|
|
|
269.7
|
|
Senior floating rate notes due 2015
|
|
|
125.0
|
|
|
|
125.0
|
|
Senior fixed rate notes due 2017
|
|
|
200.0
|
|
|
|
200.0
|
|
PDIC credit facilities
|
|
|
71.1
|
|
|
|
71.1
|
|
Silec credit facilities
|
|
|
49.4
|
|
|
|
49.4
|
|
Subordinated convertible notes due 2029 being offered hereby,
net of debt discount
|
|
|
|
|
|
|
159.8
|
|
Other debt(3)
|
|
|
82.9
|
|
|
|
82.9
|
|
|
|
|
|
|
|
|
|
|
Total debt
|
|
|
1,253.1
|
|
|
|
1,025.5
|
|
|
|
|
|
|
|
|
|
|
Shareholders equity:
|
|
|
|
|
|
|
|
|
Preferred stock, $0.01 par value; 25,000,000 shares
authorized: Series A redeemable convertible preferred
stock; 2,070,000 shares authorized; 76,202 shares
issued and outstanding actual and as adjusted
|
|
$
|
3.8
|
|
|
$
|
3.8
|
|
Common stock, $0.01 par value; 200,000,000 shares
authorized; 51,981,549 shares issued and outstanding actual
and as adjusted (net of 6,148,591 treasury shares actual and as
adjusted)(4)
|
|
|
0.6
|
|
|
|
0.6
|
|
Additional paid-in capital
|
|
|
493.0
|
|
|
|
636.2
|
|
Treasury stock
|
|
|
(73.3
|
)
|
|
|
(73.3
|
)
|
Retained earnings
|
|
|
699.2
|
|
|
|
699.3
|
|
Accumulated other comprehensive loss
|
|
|
(73.0
|
)
|
|
|
(73.0
|
)
|
|
|
|
|
|
|
|
|
|
Total shareholders equity
|
|
|
1,050.3
|
|
|
|
1,193.6
|
|
|
|
|
|
|
|
|
|
|
Total capitalization
|
|
$
|
2,303.4
|
|
|
$
|
2,219.1
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
Includes (i) payments of approximately $14.5 million
in the aggregate for the maximum fee payable to the dealer
managers and our other estimated expenses of the exchange offer;
and (ii) estimated cash interest payments of approximately
$0.5 million in the aggregate to holders of 2012 notes that
may tender such
|
56
|
|
|
|
|
2012 notes for exchange with respect to accrued and unpaid
interest on the 2012 notes accepted for exchange from the last
applicable interest payment date to, but excluding, the
settlement date (assuming the settlement date occurs on
November 24, 2009).
|
|
(2)
|
|
Excludes $29.9 million of letters of credit outstanding
under the senior secured credit facility. As of July 3,
2009, we have the ability to borrow up to $305.6 million
under the senior secured credit facility.
|
|
(3)
|
|
Includes $26.9 million, which is the balance outstanding on
debt assumed in connection with the acquisition of ECN Cable,
$6.4 million in capital lease obligations and
$49.6 million in other indebtedness.
|
|
(4)
|
|
Excludes: (i) an aggregate of 1.2 million shares of
common stock issuable upon the exercise of outstanding stock
options; (ii) an aggregate of 7.0 million shares of
common stock issuable upon the exercise of certain warrants
issued as part of convertible note hedging transactions we
entered into in connection with the issuance of our 2013 notes;
and (iii) an estimated aggregate of 13.2 million
shares of common stock that may be received upon conversion in
full of the outstanding Series A preferred stock, the 2012
notes and the 2013 notes; and (iv) shares of common stock
issuable upon conversion in full of the 2029 notes being offered
hereby.
|
57
RATIO OF
EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED
DIVIDENDS
The following table sets forth our consolidated ratio of
earnings to combined fixed charges and preferred stock dividends
for each of the periods indicated. For purposes of calculating
the ratio of earnings to combined fixed charges and preferred
dividends, earnings consist of the sum of (i) pre-tax
income from continuing operations before adjustment for income
or loss from equity investees; (ii) combined fixed charges
and preferred dividends; (iii) amortization of capitalized
interest; (iv) distributed income of equity investees; and
(v) our share of pre-tax losses of equity investees for
which charges arising from guarantees are included in fixed
charges, minus (vi) capitalized interest;
(vii) preference security dividend requirements of
consolidated subsidiaries; and (viii) the noncontrolling
interest in pre-tax income of subsidiaries that have not
incurred fixed charges.
Combined fixed charges and preferred dividends include:
|
|
|
|
|
interest expense, whether expensed or capitalized;
|
|
|
|
amortization of debt issuance cost;
|
|
|
|
the portion of rent expense representative of the interest
factor; and
|
|
|
|
the amount of pre-tax earnings required to cover preferred stock
dividends and any accretion in the carrying value of the
preferred stock.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Six Fiscal
|
|
|
Year Ended December 31,
|
|
Months Ended
|
|
|
2004
|
|
2005
|
|
2006
|
|
2007
|
|
2008
|
|
July 3, 2009
|
|
Ratio of Earnings to Combined Fixed Charges and Preferred
Dividends
|
|
|
1.2x
|
|
|
|
1.4x
|
|
|
|
5.6x
|
|
|
|
5.0x
|
|
|
|
3.8x
|
|
|
|
4.3x
|
|
58
THE
EXCHANGE OFFER
Purpose
of the Exchange Offer
The 2012 notes mature on October 15, 2012. The purpose of
the exchange offer is to provide us with financial and strategic
flexibility by extending the maturity of a portion of our total
debt represented by the 2012 notes, which mature on
October 15, 2012.
Terms of
the Exchange Offer
Upon the terms and subject to the conditions set forth in this
prospectus and the related letter of transmittal, we are
offering to exchange $925 principal amount of our new 2029 notes
for each $1,000 in principal amount of our 2012 notes. The
maximum aggregate principal amount of 2029 notes that we will
issue in the exchange offer is approximately
$439.4 million. We will also pay in cash accrued and unpaid
interest on 2012 notes accepted for exchange from the last
interest payment date to, but excluding, the settlement date.
Subject to the satisfaction or waiver of all conditions to the
exchange offer and the terms of the exchange offer described in
this prospectus, 2012 notes that are validly tendered and not
validly withdrawn as of the expiration date will be accepted for
exchange in accordance with the terms of the exchange offer. The
2029 notes will be issued only in minimum denominations of
$1,000 and integral multiples thereof.
The exchange offer is subject to the conditions discussed under
Conditions to the Exchange Offer,
including, among other things, that the registration statement
of which this prospectus forms a part having been declared
effective and not being subject to a stop order or any
proceedings for that purpose. The exchange offer is also
conditioned on at least $100.0 million aggregate principal
amount of the 2012 notes being validly tendered and not validly
withdrawn as of the expiration date. If only $100.0 million
aggregate principal amount of the 2012 notes is accepted for
exchange pursuant to the terms and conditions of the exchange
offer, approximately $92.5 million aggregate principal amount of
2029 notes will be issued. We will not be required to accept for
exchange any outstanding 2012 notes tendered and may terminate
the exchange offer if any condition of the exchange offer as
described under Conditions to the Exchange
Offer is not satisfied on or prior to the expiration date.
We also will not be required to, but we reserve the right to,
waive any of the conditions to the exchange offer except as to
the condition that the registration statement of which this
prospectus forms a part having been declared effective and not
being subject to a stop order or any proceedings for that
purpose, and the condition that at least $100.0 million
aggregate principal amount of the 2012 notes shall have been
validly tendered and not validly withdrawn as of the expiration
date, which conditions we cannot waive.
The exchange offer will expire at midnight, New York City time,
on November 24, 2009, unless extended or earlier terminated by
us. You may withdraw your tendered 2012 notes at any time on or
prior to the expiration date. You must validly tender and not
validly withdraw your 2012 notes for exchange in the exchange
offer on or prior to the expiration date to be eligible to
receive the exchange offer consideration. If the initial
conversion price is set at the minimum conversion price because
the average VWAP otherwise would result in an initial conversion
price of less than the minimum conversion price, we will extend
the exchange offer until midnight, New York City time, on the
second trading day following the previously scheduled expiration
date to permit holders to tender or withdraw their 2012 notes
during those days. Any changes in the price of our common stock
on those additional days of the exchange offer will not,
however, affect the initial conversion price or the initial
conversion ratio.
Assuming that we have not previously elected to terminate the
exchange offer, 2012 notes validly tendered and not validly
withdrawn in accordance with the procedures set forth in this
prospectus and the related letter of transmittal on or prior to
midnight, New York City time, on the expiration date, will, upon
the terms and subject to the conditions of the exchange offer,
be accepted for exchange and payment by us of the exchange offer
consideration, and payments will be made therefor on the
settlement date, which will be promptly after the expiration
date. We expect that the settlement date will occur within three
New York Stock Exchange trading days after the expiration date.
This prospectus and the related letter of transmittal are being
sent to all registered holders of 2012 notes. There will be no
fixed record date for determining registered holders of 2012
notes entitled to participate in the exchange offer.
59
Any 2012 notes that are accepted for exchange in the exchange
offer will be cancelled and retired in accordance with the terms
of the indenture governing the 2012 notes. Any 2012 notes
tendered but not accepted because they were not validly tendered
or were validly withdrawn shall remain outstanding following the
completion of the exchange offer. If any tendered 2012 notes are
not accepted for exchange and payment because of an invalid
tender, the occurrence of other events set forth in this
prospectus or otherwise, they will be returned, without expense,
to the tendering holder as promptly as practicable after the
expiration date. Any 2012 notes that are not exchanged in the
exchange offer will remain outstanding and continue to accrue
interest and will be entitled to the rights and benefits their
holders have under the indenture governing the 2012 notes.
Holders of 2012 notes do not have any appraisal rights under the
indenture governing the 2012 notes or otherwise in connection
with the exchange offer.
If your 2012 notes are held through a broker or other nominee
who tenders the 2012 notes on your behalf (other than those
tendered through a dealer manager), your broker may charge you a
commission for doing so. You should consult with your broker or
nominee to determine whether any charges will apply. In
addition, holders who tender 2012 notes in the exchange offer
will not be required to pay transfer taxes with respect to the
exchange of 2012 notes, subject to the instructions in the
related letter of transmittal. We will pay all charges and
expenses in connection with the exchange offer, other than
applicable taxes as described below in
Transfer Taxes. See Fees and
Expenses for more details regarding fees and expenses to
be incurred in the exchange offer.
We shall be deemed to have accepted for exchange 2012 notes
validly tendered and not validly withdrawn when we have given
oral or written notice of the acceptance to the exchange agent.
The exchange agent will act as agent for the holders of 2012
notes who tender their 2012 notes in the exchange offer for the
purposes of receiving the exchange offer consideration from us
and delivering the exchange offer consideration to the
exchanging holders. We expressly reserve the right to amend or
terminate the exchange offer, and not to accept for exchange any
2012 notes not previously accepted for exchange, if the
conditions specified below under Conditions to
the Exchange Offer are not satisfied, or where permitted
by the terms of the exchange offer, waived, on or prior to the
expiration date.
In lieu of issuing 2029 notes in denominations of other than a
minimum denomination of $1,000 and integral multiples thereof,
if the amount of 2012 notes accepted for exchange from a
particular holder is such that the minimum denomination
threshold of the 2029 notes is not reached, at settlement, we
will deliver 2029 notes in a minimum denomination of $1,000 and
integral multiples thereof and cash equal to the remaining
principal amount of 2029 notes that would otherwise have been
issued to such holder but for the minimum denomination threshold.
Resale of
2029 Notes Received Pursuant to the Exchange Offer
Any 2029 notes received pursuant to the exchange offer generally
may be offered for resale, resold and otherwise transferred
without further registration under the Securities Act and
without delivery of a prospectus meeting the requirements of
Section 10 of the Securities Act if the holder is not our
affiliate within the meaning of Rule 144(a)(1)
under the Securities Act. Any holder who is our affiliate at the
time of the exchange must comply with the registration and
prospectus delivery requirements of the Securities Act in
connection with any resale, unless such sale or transfer is made
pursuant to an exemption from such requirements and the
requirements under applicable state securities laws.
Consequences
of Failure to Participate in the Exchange Offer
Any 2012 notes that are not exchanged in the exchange offer will
remain outstanding and continue to accrue interest and will be
entitled to the rights and benefits their holders have under the
indenture governing the 2012 notes.
There currently is a limited trading market for the 2012 notes.
To the extent that 2012 notes are tendered and accepted for
exchange pursuant to the exchange offer, the trading market for
the remaining 2012 notes will be even more limited or may cease
to exist altogether. A debt security with a small outstanding
aggregate principal amount or float may command a
lower price than would a comparable debt security with a larger
60
float. Therefore, the market price for the unexchanged 2012
notes may be adversely affected. The reduced float may also make
the trading price of the remaining 2012 notes more volatile.
Following completion of the exchange offer, we may (but are not
required to) repurchase 2012 notes that remain outstanding after
the exchange offer in the open market, in privately negotiated
transactions, tender offers, additional exchange offers, or
otherwise. Future purchases of 2012 notes that remain
outstanding after the exchange offer may be on terms that are
more or less favorable than the exchange offer. Exchange Act
Rule 13e-4
generally prohibits us and our affiliates from purchasing any
2012 notes, other than pursuant to the exchange offer, until 10
business days after the expiration date of the exchange offer.
Exchange Act
Rule 14e-5
also prohibits us and our affiliates and the dealer managers and
their affiliates from purchasing the 2012 notes outside of the
exchange offer from the time that the exchange offer is first
announced until the expiration of the exchange offer, subject to
certain exceptions. Future purchases, if any, will depend on
many factors, which include market conditions and the condition
of our business.
Expiration
Date; Extension; Termination; Amendment
The exchange offer will expire at midnight, New York City time,
on November 24, 2009, unless we have extended the period of
time that the exchange offer is open. The exchange offer will be
open for at least 20 business days as required by
Rules 13e-4(f)(1)
and
14e-1(a)
under the Exchange Act.
If the initial conversion price is set at the minimum conversion
price because the average VWAP otherwise would result in an
initial conversion price of less than the minimum conversion
price, we will extend the exchange offer until midnight, New
York City time, on the second trading day following the
previously scheduled expiration date to permit holders to tender
or withdraw their 2012 notes during those days. Any changes in
the price of our common stock on those additional days of the
exchange offer will not, however, affect the initial conversion
price or the initial minimum conversion rate.
We reserve the right to extend the period of time that the
exchange offer is open, and delay acceptance for exchange of any
2012 notes, by giving oral or written notice to the exchange
agent and by timely public announcement no later than
9:00 a.m., New York City time, on the next business day
after the previously scheduled expiration date. During any
extension, all 2012 notes previously tendered will remain
subject to the exchange offer unless properly withdrawn.
In addition, we reserve the right to:
|
|
|
|
|
terminate or amend the exchange offer and not to accept for
exchange any 2012 notes not previously accepted for exchange
upon the occurrence of any of the events specified below under
Conditions to the exchange offer that
have not been waived by us; and
|
|
|
|
amend the terms of the exchange offer in any manner permitted or
not prohibited by law.
|
If we terminate or amend the exchange offer, we will notify the
exchange agent by oral or written notice (with any oral notice
to be promptly confirmed in writing) and will issue a timely
press release or other public announcement regarding the
termination or amendment.
Other than with respect to changes described in the following
paragraph, if we make a material change in the terms of the
exchange offer or the information concerning the exchange offer,
we will promptly disseminate disclosure regarding the changes to
the exchange offer and extend the exchange offer, if required by
law, to ensure that the exchange offer remains open a minimum of
five business days from the date we disseminate disclosure
regarding the changes.
If we make a change in the principal amount of 2012 notes sought
or the exchange offer consideration, including the applicable
exchange ratio or in the provisions for determining the initial
conversion price and initial conversion rate, we will promptly
disseminate disclosure regarding the changes and extend the
exchange offer, if required by law, to ensure that the exchange
offer remains open a minimum of ten business days from the date
we disseminate disclosure regarding the changes.
61
Procedures
for Tendering 2012 Notes
We have forwarded to you, along with this prospectus, a letter
of transmittal relating to the exchange offer. A holder need not
submit a letter of transmittal if the holder tenders 2012 notes
in accordance with the procedures mandated by DTCs
Automated Tender Offer Program, or ATOP. To tender 2012 notes
without submitting a letter of transmittal, the electronic
instructions sent to DTC and transmitted to the exchange agent
must contain your acknowledgment of receipt of, and your
agreement to be bound by and to make all of the representations
contained in, the letter of transmittal. In all other cases, a
letter of transmittal must be manually executed and delivered as
described in this prospectus.
Only a holder of record of 2012 notes may tender 2012 notes in
the exchange offer. To tender in the exchange offer, a holder
must:
(1) either:
|
|
|
|
|
properly complete, duly sign and date the letter of transmittal,
or a facsimile of the letter of transmittal, have the signature
on the letter of transmittal guaranteed if the letter of
transmittal so requires and deliver the letter of transmittal or
facsimile together with any other documents required by the
letter of transmittal, to the exchange agent on or prior to the
expiration date; or
|
|
|
|
instruct DTC to transmit on behalf of the holder an agents
message to the exchange agent in which the holder of the 2012
notes acknowledges and agrees to be bound by the terms of, and
to make all of the representations contained in, the letter of
transmittal, which agents message shall be received by the
exchange agent on or prior to midnight, New York City time, on
the expiration date, according to the procedure for book-entry
transfer described below; and
|
(2) deliver to the exchange agent on or prior to the
expiration date confirmation of book-entry transfer of such
holders 2012 notes into the exchange agents account
at DTC pursuant to the procedure for book-entry transfers
described below.
To be tendered effectively, the exchange agent must receive any
physical delivery of the letter of transmittal and other
required documents at the address set forth on the back cover of
this prospectus on or prior to the expiration date. To receive
confirmation of valid tender of 2012 notes, a holder should
contact the exchange agent at its telephone numbers listed on
the back cover of this prospectus.
The tender of 2012 notes by a holder that is not validly
withdrawn prior to expiration of the exchange offer will
constitute an agreement between that holder and us in accordance
with the terms and subject to the conditions set forth in this
prospectus and the related letter of transmittal. Such agreement
will be governed by, and construed in accordance with, the laws
of the State of New York.
If the related letter of transmittal or any other required
documents are physically delivered to the exchange agent, the
method of delivery is at the holders election and risk.
Rather than mail these items, we recommend that holders use an
overnight or hand delivery service, properly insured. In all
cases, holders should allow sufficient time to assure delivery
to the exchange agent before expiration of the exchange offer.
Holders should not send letters of transmittal to us, the dealer
managers or the information agent. Holders may request their
respective brokers, dealers, commercial banks, trust companies
or other nominees to effect the above transactions for them.
Any beneficial owner whose 2012 notes are registered in the name
of a broker, dealer, commercial bank, trust company or other
nominee and who wishes to tender should contact the registered
holder promptly and instruct it to tender on the owners
behalf if it wishes to participate in the exchange offer. You
should keep in mind that your intermediary may require you to
take action with respect to the exchange offer a number of days
before the expiration date in order for such entity to tender
2012 notes on your behalf on or prior to the expiration date in
accordance with the terms of the exchange offer.
If the applicable letter of transmittal is signed by a
participant in DTC, the signature must correspond with the name
as it appears on the security position listing as the holder of
the 2012 notes.
62
A signature on a letter of transmittal or a notice of withdrawal
must be guaranteed by an eligible institution in certain
circumstances. As used in this prospectus, eligible
institution means a bank, broker, dealer, municipal
securities dealer, municipal securities broker, government
securities dealer, government securities broker, credit union,
national securities exchange, registered securities association,
clearing agency or savings association. The signature need not
be guaranteed by an eligible institution if the 2012 notes are
tendered:
|
|
|
|
|
by a registered holder who has not completed either of the boxes
entitled Special Issuance Instructions or
Special Delivery Instructions on the letter of
transmittal; or
|
|
|
|
for the account of an eligible institution.
|
If the letter of transmittal is signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of
corporations or others acting in a fiduciary or representative
capacity, these persons should so indicate when signing. Unless
we waive this requirement, they should also submit evidence
satisfactory to us of their authority to deliver the letter of
transmittal.
We will determine in our sole discretion all questions as to the
validity, form, eligibility, including time of receipt,
acceptance and withdrawal, of tendered 2012 notes. Our
determination will be final and binding, absent a finding to the
contrary by a court of competent jurisdiction. We reserve the
absolute right to reject any 2012 notes not validly tendered or
any 2012 notes the acceptance of which would, in the opinion of
our counsel, be unlawful. We also reserve the right to waive any
defects, irregularities or conditions of tender as to particular
2012 notes. A waiver of any defect or irregularity with respect
to the tender of one tendered security shall not constitute a
waiver of the same or any other defect or irregularity with
respect to the tender of any other tendered securities except to
the extent we may otherwise so provide. Our interpretation of
the terms and conditions of the exchange offer, including the
instructions in the letter of transmittal, will be final and
binding on all parties, absent a finding to the contrary by a
court of competent jurisdiction.
Unless waived, any defects or irregularities in connection with
tenders of 2012 notes must be cured within the time that we
determine. Although we intend to notify holders of defects or
irregularities with respect to tenders of 2012 notes, none of
us, the dealer managers, the information agent, the exchange
agent or any other person will incur any liability for failure
to give notification. Tenders of 2012 notes will not be deemed
made until those defects or irregularities have been cured or
waived. Any 2012 notes received by the exchange agent that are
not validly tendered and as to which the defects or
irregularities have not been cured or waived will be returned by
the exchange agent without cost to the tendering holder, unless
otherwise provided in the letter of transmittal, promptly
following the expiration date.
In all cases, we will accept 2012 notes for exchange pursuant to
the exchange offer only after the exchange agent timely receives:
|
|
|
|
|
a timely book-entry confirmation that 2012 notes have been
transferred into the exchange agents account at
DTC; and
|
|
|
|
a properly completed and duly executed letter of transmittal and
all other required documents or a properly transmitted
agents message to the exchange agent.
|
Holders should receive copies of the letter of transmittal with
this prospectus. A holder may obtain additional copies of the
letter of transmittal for the 2012 notes from the information
agent at its offices listed on the back cover of this prospectus.
Book-Entry
Transfer
The exchange agent has established accounts with respect to the
2012 notes at DTC for purposes of the exchange offer.
The exchange agent and DTC have confirmed that any financial
institution that is a participant in DTC may utilize DTCs
ATOP procedures to tender 2012 notes.
63
Any participant in DTC may make book-entry delivery of 2012
notes by causing DTC to transfer the 2012 notes into the
exchange agents applicable account in accordance with
DTCs ATOP procedures for transfer.
However, the exchange for the 2012 notes so tendered will be
made only after a book-entry confirmation of such book-entry
transfer of 2012 notes into the exchange agents applicable
account, and timely receipt by the exchange agent of an
agents message and any other documents required by the
letter of transmittal. The term agents message
means a message, transmitted by DTC and received by the exchange
agent and forming part of a book-entry confirmation, which
states that DTC has received an express acknowledgment from a
participant tendering 2012 notes that are the subject of the
book-entry confirmation that the participant has received and
agrees to be bound by the terms of, and to make all of the
representations contained in, the letter of transmittal, and
that we may enforce that agreement against the participant.
No
Guaranteed Delivery
There are no guaranteed delivery procedures applicable to the
exchange offer and, accordingly, 2012 notes may not be tendered
by delivering a notice of guaranteed delivery. All tenders must
be completed by midnight, New York City time, on the
expiration date in order to be considered valid.
Withdrawal
Rights
You may withdraw your tender of 2012 notes at any time on or
prior to midnight, New York City time, on the expiration date.
In addition, if not previously returned, you may withdraw 2012
notes that you have tendered and that have not been accepted by
us for exchange after expiration of 40 business days from
October 27, 2009. For a withdrawal to be effective, the
exchange agent must receive a notice of withdrawal, transmitted
by DTC on behalf of the holder in accordance with the standard
operating procedures of DTC or a written notice of withdrawal,
sent by facsimile transmission, receipt confirmed by telephone,
or letter, before the expiration date. A form of notice of
withdrawal may be obtained from the information agent. Any
notice of withdrawal must:
|
|
|
|
|
specify the name of the person that tendered the 2012 notes to
be withdrawn;
|
|
|
|
identify the 2012 notes to be withdrawn, including the
certificate number or numbers, if physical certificates were
tendered, and principal amount of such 2012 notes;
|
|
|
|
include a statement that the holder is withdrawing its election
to have the 2012 notes exchanged;
|
|
|
|
be signed by the holder in the same manner as the original
signature on the letter of transmittal by which the 2012 notes
were tendered, or by the same entity previously delivering the
related agents message, including any required signature
guarantees, and, in the case of certificated securities, be
accompanied by documents of transfer sufficient to have the
trustee under the indenture governing the 2012 notes register
the transfer of the 2012 notes into the name of the person
withdrawing the tender; and
|
|
|
|
specify the name in which any of the 2012 notes are to be
registered, if different from that of the person that tendered
the 2012 notes.
|
Any notice of withdrawal must specify the name and number of the
account at DTC to be credited with the withdrawn 2012 notes or
otherwise comply with DTCs procedures, or, in the case of
certificated securities, the name and address to which such
withdrawn 2012 notes are to be sent.
Any 2012 notes validly withdrawn will not have been validly
tendered for exchange for purposes of the exchange offer. Any
2012 notes that have been tendered for exchange but which are
not exchanged for any reason will be credited to an account with
DTC specified by the holder, or, in the case of certificated
securities, if any, returned to the tendering holder, as soon as
practicable after withdrawal, rejection of tender or termination
of the exchange offer. Properly withdrawn 2012 notes may be
re-tendered by following one of the procedures described under
Procedures for Tendering 2012 Notes
above at any time on or prior to the expiration date.
64
Acceptance
of 2012 Notes for Exchange; Delivery of Exchange Offer
Consideration
Upon satisfaction or waiver of all of the conditions to the
exchange offer and upon the terms and subject to the conditions
of the exchange offer, we will promptly accept such 2012 notes
validly tendered that have not been validly withdrawn. We will
pay the exchange offer consideration in exchange for such 2012
notes accepted for exchange on the settlement date. We expect
that the settlement date will occur within three New York Stock
Exchange trading days after the expiration date. For purposes of
the exchange offer, we will be deemed to have accepted 2012
notes for exchange when we give oral (promptly confirmed in
writing) or written notice of acceptance to the exchange agent.
In all cases, we will pay the exchange offer consideration in
exchange for 2012 notes that are accepted for exchange pursuant
to the exchange offer only after the exchange agent timely
receives a book-entry confirmation of the transfer of the 2012
notes into the exchange agents account at DTC, and a
properly completed and duly executed letter of transmittal and
all other required documents, or a properly transmitted
agents message.
We will deliver 2029 notes in exchange for 2012 notes accepted
for exchange in the exchange offer, pay in cash accrued and
unpaid interest on 2012 notes accepted for exchange and cash
equal to the principal amount of 2029 notes that would have been
issued to a holder tendering 2012 notes in an amount that would
result in the issuance of 2029 notes in less than the minimum
denomination of $1,000, on the settlement date, by issuing the
2029 notes and paying such accrued and unpaid interest and any
other cash payments on the settlement date to the exchange agent
(or upon its instructions, to DTC), which will act as agent for
you for the purpose of receiving the 2029 notes and accrued and
unpaid interest and any other cash payments and transmitting the
2029 notes and accrued and unpaid interest and any other cash
payments to you. Tendering holders of the 2012 notes should
indicate in the applicable box in the letter of transmittal or
to the book-entry transfer facility in the case of holders who
electronically transmit their acceptance through ATOP the name
and address to which delivery of the 2029 notes and payment of
accrued and unpaid interest on the 2012 notes accepted for
exchange and any other cash payments is to be sent, if different
from the name and address of the person signing the letter of
transmittal or transmitting such acceptance through ATOP.
We expressly reserve the right, subject to applicable law, to
(1) delay acceptance for exchange of 2012 notes tendered
under the exchange offer or the delivery of 2029 notes in
exchange for the 2012 notes tendered and accepted (subject to
Rule 14e-1(e)
under the Exchange Act, which requires that we pay the
consideration offered or return the 2012 notes deposited by or
on behalf of the holders promptly after the termination or
withdrawal of the exchange offer), or (2) terminate the
exchange offer at any time if the conditions to the exchange
offer have not been satisfied, or to the extent permitted by the
terms of the exchange offer, waived.
We will not be liable for any interest as a result of a delay
by the exchange agent or DTC in distributing the consideration
for the exchange offer.
Conditions
to the Exchange Offer
Notwithstanding any other provision of the exchange offer to the
contrary, the exchange offer is subject to the following
conditions that we cannot waive: (i) the registration
statement of which this prospectus forms a part shall have been
declared effective; (ii) no stop order suspending the
effectiveness of the registration statement and no proceedings
for that purpose shall have been instituted or be pending, or to
our knowledge, be contemplated or threatened by the SEC; and
(iii) a minimum of at least $100.0 million aggregate
principal amount of the 2012 notes shall have been validly
tendered and not validly withdrawn as of the expiration date.
In addition, we will not be required to accept for exchange, or
to pay the exchange offer consideration in exchange for, any
2012 notes and may terminate or amend the exchange offer, by
oral or written notice (with any oral notice to be promptly
confirmed in writing) to the exchange agent, followed by a
timely press release, at any time before accepting any of the
2012 notes for exchange, if, in our reasonable judgment:
|
|
|
|
|
there shall have been instituted, threatened in writing or be
pending any action or proceeding before or by any court,
governmental, regulatory or administrative agency or
instrumentality, or by any other person, in connection with the
exchange offer, that is, or is reasonably likely to be, in our
reasonable
|
65
|
|
|
|
|
judgment, materially adverse to our business, operations,
properties, condition, assets, liabilities or prospects, or
which would or might, in our reasonable judgment, prohibit,
prevent, restrict or delay consummation of the exchange offer or
materially impair the contemplated benefits to us (as set forth
under Purpose of the Exchange Offer) of
the exchange offer;
|
|
|
|
|
|
an order, statute, rule, regulation, executive order, stay,
decree, judgment or injunction shall have been proposed,
enacted, entered, issued, promulgated, enforced or deemed
applicable by any court or governmental, regulatory or
administrative agency or instrumentality, or there shall have
occurred any development, that, in our reasonable judgment,
would or would be reasonably likely to prohibit, prevent,
restrict or delay consummation of the exchange offer or
materially impair the contemplated benefits to us of the
exchange offer, or that is, or is reasonably likely to be,
materially adverse to our business, operations, properties,
condition, assets, liabilities or prospects;
|
|
|
|
there shall have occurred or be reasonably likely to occur any
material adverse change to our business, operations, properties,
condition, assets, liabilities or prospects; or
|
|
|
|
there shall have occurred:
|
|
|
|
|
|
any general suspension of, or limitation on prices for, trading
in securities in U.S. securities or financial markets;
|
|
|
|
a declaration of a banking moratorium or any suspension of
payments in respect to banks in the United States;
|
|
|
|
any limitation (whether or not mandatory) by any government or
governmental, regulatory or administrative authority, agency or
instrumentality, domestic or foreign, or other event that, in
our reasonable judgment, would or would be reasonably likely to
affect the extension of credit by banks or other lending
institutions; or
|
|
|
|
a commencement or significant worsening of a military action or
armed hostilities or other national or international calamity,
including, but not limited to, catastrophic terrorist attacks
against the United States or its citizens.
|
We expressly reserve the right to amend or terminate the
exchange offer and to reject for exchange any 2012 notes not
previously accepted for exchange, upon the occurrence of any of
the conditions of the exchange offer specified above. In
addition, we expressly reserve the right, at any time or at
various times, to waive any of the conditions of the exchange
offer, in whole or in part, except as to the requirements that
the registration statement of which this prospectus forms a part
shall not have been declared effective and shall not be subject
to a stop order or any proceedings for that purpose, or that at
least $100.0 million aggregate principal amount of 2012
notes shall have been validly tendered and not validly withdrawn
as of the expiration date, which conditions we cannot waive. We
will give oral or written notice (with any oral notice to be
promptly confirmed in writing) of any amendment, non-acceptance,
termination or waiver to the exchange agent as promptly as
practicable, followed by a timely press release.
These conditions are for our sole benefit, and we may assert
them regardless of the circumstances that may give rise to them
or waive them in whole or in part at any or at various times in
our sole discretion. If we fail at any time to exercise any of
the foregoing rights, this failure will not constitute a waiver
of such right. Each such right will be deemed an ongoing right
that we may assert at any time or at various times.
All conditions to the exchange offer must be satisfied or, to
the extent permitted by the terms of the exchange offer, waived,
prior to the expiration date.
66
Transfer
Taxes
We will pay all transfer taxes, if any, applicable to the
exchange of 2012 notes pursuant to the exchange offer. The
tendering holder, however, will be required to pay any transfer
taxes, whether imposed on the registered holder or any other
person, if:
|
|
|
|
|
tendered 2012 notes are registered in the name of any person
other than the person signing the letter of transmittal; or
|
|
|
|
a transfer tax is imposed for any reason other than the exchange
of 2012 notes under the exchange offer.
|
If satisfactory evidence of payment of transfer taxes is not
submitted with the letter of transmittal, the amount of any
transfer taxes will be billed to the tendering holder.
Future
Purchases and Exchanges
Following completion of the exchange offer, we may, but are not
obligated to, acquire additional 2012 notes that remain
outstanding in the open market, in privately negotiated
transactions, in tender offers, in new exchange offers or
otherwise. Future purchases or exchanges of 2012 notes that
remain outstanding after the exchange offer may be on terms that
are more or less favorable than the exchange offer. However,
Exchange Act
Rules 14e-5
and
13e-4
generally prohibit us and our affiliates from purchasing any
2012 notes other than pursuant to the exchange offer until 10
business days after the expiration date of the exchange offer.
Future purchases or exchanges, if any, will depend on many
factors, which include market conditions and the condition of
our business.
No
Appraisal Rights
No appraisal rights are available to holders of 2012 notes under
applicable law in connection with the exchange offer.
Compliance
With Short Tendering Rule
It is a violation of
Rule 14e-4
under the Exchange Act for a person, directly or indirectly, to
tender 2012 notes for such persons own account unless the
person so tendering (a) has a net long position equal to or
greater than the aggregate principal amount of the 2012 notes
being tendered and (b) will cause such 2012 notes to be
delivered in accordance with the terms of the exchange offer.
Rule 14e-4
provides a similar restriction applicable to the tender or
guarantee of a tender on behalf of another person.
A tender of 2012 notes in response to the exchange offer under
any of the procedures described above will constitute a binding
agreement between the tendering holder and us with respect to
the exchange offer upon the terms and subject to the conditions
of the exchange offer, including the tendering holders
acceptance of the terms and conditions of the exchange offer, as
well as the tendering holders representation and warranty
that (a) such holder has a net long position in the 2012
notes being tendered pursuant to the exchange offer within the
meaning of
Rule 14e-4
under the Exchange Act and (b) the tender of such 2012
notes complies with
Rule 14e-4.
Compliance
With Securities Laws
We are making the exchange offer to all holders of outstanding
2012 notes. We are not aware of any jurisdiction in which the
making of the exchange offer is not in compliance with
applicable law. If we become aware of any jurisdiction in which
the making of the exchange offer would not be in compliance with
applicable law, we will make a good faith effort to comply with
any such law. If, after such good faith effort, we cannot comply
with any such law, the exchange offer will not be made to, nor
will tenders of 2012 notes be accepted from or on behalf of, the
holders of 2012 notes residing in any such jurisdiction. In any
jurisdiction where the securities, blue sky or other laws
require the exchange offer to be made by a licensed
67
broker or dealer, the exchange offer will be deemed to be made
on our behalf by one of the dealer managers if licensed under
the laws of that jurisdiction.
No action has been or will be taken in any jurisdiction other
than in the United States that would permit a public offering of
our 2029 notes, or the possession, circulation or distribution
of this prospectus or any other material relating to us or our
2029 notes in any jurisdiction where action for that purpose is
required. Accordingly, our 2029 notes may not be offered or
sold, directly or indirectly, and neither this prospectus nor
any other offering material or advertisement in connection with
our 2029 notes may be distributed or published, in or from any
country or jurisdiction except in compliance with any applicable
rules and regulations of any such country or jurisdiction. This
prospectus does not constitute an offer to sell or a
solicitation of any offer to buy in any jurisdiction where such
offer or solicitation would be unlawful. Persons into whose
possession this prospectus comes are advised to inform
themselves about and to observe any restrictions relating to the
exchange offer, the distribution of this prospectus, and the
resale of the 2029 notes.
European
Economic Area
In relation to each Member State of the European Economic Area,
or EEA, which has implemented the Prospectus Directive, each, a
relevant member state, no offer to the public of any 2029 notes
as contemplated by this document may be made in that relevant
member state, except that an offer to the public in that
relevant member state of any such 2029 notes may be made at any
time under the following exemptions under the Prospectus
Directive, to the extent those exemptions have been implemented
in that relevant member state:
(a) to legal entities which are authorized or regulated to
operate in the financial markets or, if not so authorized or
regulated, whose corporate purpose is solely to invest in
securities;
(b) to any legal entity which has two or more of
(1) an average of at least 250 employees during the
last financial year; (2) a total balance sheet of more than
43,000,000; and (3) an annual net turnover of more
than 50,000,000, as shown in its last annual or
consolidated accounts;
(c) by any managers to fewer than 100 natural or legal
persons (other than qualified investors as defined in the
Prospectus Directive) subject to obtaining the prior consent of
the dealer managers for any such offer; or
(d) in any other circumstances which do not require the
publication by us of a prospectus pursuant to Article 3 of
the Prospectus Directive.
For the purposes of this provision, the expression an
offer to the public in relation to any 2029 notes in
any relevant member state means the communication in any form
and by any means of sufficient information on the terms of the
offer and any 2029 notes to be offered so as to enable an
investor to decide to exchange for any 2029 notes, as the same
may be varied in that relevant member state by any measure
implementing the Prospectus Directive in that relevant member
state, and the expression Prospectus Directive means
Directive 2003/71/EC and includes any relevant implementing
measure in each relevant member state.
This prospectus has been prepared on the basis that all offers
of such 2029 notes will be made pursuant to an exemption under
the Prospectus Directive, as implemented in member states of the
EEA, from the requirement to produce a prospectus for offers of
such 2029 notes. Accordingly any person making or intending to
make any offer within the EEA of 2029 notes that are the subject
of the placement contemplated in this document should only do so
in circumstances in which no obligation arises for us or the
dealer managers to produce a prospectus for such offer. Neither
we nor either of the dealer managers have authorized, nor do we
or either dealer manager authorize, the making of any offer of
such 2029 notes through any financial intermediary, other than
offers made by the dealer managers that constitute the final
placement of such 2029 notes contemplated in this prospectus.
Each person in a relevant member state who receives any
communication in respect of, or who acquires any 2029 notes
under, the offer contemplated in this document will be deemed to
have represented, warranted and agreed to and with the dealer
managers and us that in the case of any 2029 notes acquired by
it as a financial intermediary, as that term is used in
Article 3(2) of the Prospectus Directive, (i) the 2029
notes
68
acquired by it in the offer have not been acquired on behalf of,
nor have they been acquired with a view to their offer or resale
to, persons in any relevant member state other than qualified
investors, as that term is defined in the Prospectus Directive,
or in circumstances in which the prior consent of the dealer
managers has been given to the offer or resale; or
(ii) where 2029 notes have been acquired by it on behalf of
persons in any relevant member state other than qualified
investors, the offer of those 2029 notes to it is not treated
under the Prospectus Directive as having been made to such
persons.
United
Kingdom
This prospectus is only being distributed to and directed at
(i) persons outside the United Kingdom,
(ii) investment professionals falling within
Article 19(5) of the Financial Services and Markets Act
2000 (Financial Promotion) Order 2005, or Order, or
(iii) high net worth entities, and other persons to whom it
may lawfully be communicated, falling within
Article 49(2)(a) to (d) of the Order, all such
persons, relevant persons. 2029 notes are only available to, and
any invitation, offer or agreement to subscribe or otherwise
acquire such 2029 notes will be engaged in only with, relevant
persons. Any person who is not a relevant person should not act
or rely on this document or any of its contents.
Hong
Kong
The 2029 notes may not be offered or sold by means of any
document other than (i) in circumstances which do not
constitute an offer to the public within the meaning of the
Companies Ordinance (Cap.32, Laws of Hong Kong), or (ii) to
professional investors within the meaning of the
Securities and Futures Ordinance (Cap.571, Laws of Hong Kong)
and any rules made thereunder, or (iii) in other
circumstances which do not result in the document being a
prospectus within the meaning of the Companies
Ordinance (Cap.32, Laws of Hong Kong), and no advertisement,
invitation or document relating to the 2029 notes may be issued
or may be in the possession of any person for the purpose of
issue (in each case whether in Hong Kong or elsewhere), which is
directed at, or the contents of which are likely to be accessed
or read by, the public in Hong Kong (except if permitted to do
so under the laws of Hong Kong) other than with respect to notes
which are or are intended to be disposed of only to persons
outside Hong Kong or only to professional investors
within the meaning of the Securities and Futures Ordinance (Cap.
571, Laws of Hong Kong) and any rules made thereunder.
Japan
The 2029 notes have not been and will not be registered under
the Financial Instruments and Exchange Law of Japan, or the
Financial Instruments and Exchange Law, and will not offered or
sold, directly or indirectly, in Japan or to, or for the benefit
of, any resident of Japan (which term as used herein means any
person resident in Japan, including any corporation or other
entity organized under the laws of Japan), or to others for
re-offering or resale, directly or indirectly, in Japan or to a
resident of Japan, except pursuant to an exemption from the
registration requirements of, and otherwise in compliance with,
the Financial Instruments and Exchange Law and any other
applicable laws, regulations and ministerial guidelines of Japan.
Singapore
This prospectus or any other offering material relating to 2012
notes has not been and will not be registered as a prospectus
with the Monetary Authority of Singapore. Accordingly, this
prospectus and any other document or material in connection with
the offer or sale, or invitation for subscription or purchase,
of the 2012 notes may not be circulated or distributed, nor may
the 2029 notes be offered or sold, or be made the subject of an
invitation for subscription or purchase, whether directly or
indirectly, to person in Singapore other than (a) to an
institutional investor under Section 274 of the Securities
and Futures Act, Chapter 289 of Singapore, or the
Securities and Futures Act; (b) to a relevant person, or
any person pursuant to Section 275(1A), and in accordance
with the conditions specified in Section 275 of the
Securities and Futures Act; or (c) otherwise pursuant to,
and in accordance with the conditions of, any other applicable
provision of the Securities and Futures Act.
69
Where the 2029 notes are subscribed or purchased under
Section 275 by a relevant person which is: (a) a
corporation (which is not an accredited investor) the sole
business of which is to hold investments and the entire share
capital of which is owned by one or more individuals, each of
whom is an accredited investor; or (b) a trust (where the
trustee is not an accredited investor) whose sole purpose is to
hold investments and each beneficiary is an accredited investor,
shares, debentures and units of shares and debentures of that
corporation or the beneficiaries rights and interest in
that trust shall not be transferable for 6 months after
that corporation or that trust has acquired the shares under
Section 275 except: (1) to an institutional investor
under Section 274 of the Securities and Futures Act or to a
relevant person, or any person pursuant to Section 275(1A),
and in accordance with the conditions, specified in
Section 275 of the Securities and Futures Act;
(2) where no consideration is given for the transfer; or
(3) by operation of law.
Schedule TO
Pursuant to
Rule 13e-4
under the Exchange Act, we have filed with the SEC an Issuer
Tender Offer Statement on Schedule TO that contains
additional information with respect to the exchange offer. Such
Schedule TO, including the exhibits and any amendment
thereto, may be examined, and copies may be obtained, at the
same places and in the same manner as is set forth under the
caption Where You Can Find More Information.
Accounting
Treatment
We will consider the fair value of the debt component of the
2012 notes tendered compared to the book value of the debt
component and will record the resulting anticipated gain or loss
on the transaction on our consolidated statement of operations
in the period the exchange offer closes. Any excess between the
face value of the 2029 notes to be issued and the aggregate fair
value of the debt component of the 2012 notes will reduce
stockholders equity. Any remaining deferred tax liability
relating to the 2012 notes will increase stockholders
equity.
70
MARKET
FOR OUR COMMON STOCK AND DIVIDENDS
Our common stock is listed on the New York Stock Exchange under
the symbol BGC. The following table sets forth the
high and low sales price per share of our common stock during
the periods shown.
|
|
|
|
|
|
|
|
|
|
|
High
|
|
Low
|
|
Year Ended December 31, 2007:
|
|
|
|
|
|
|
|
|
First Fiscal Quarter
|
|
$
|
55.66
|
|
|
$
|
42.25
|
|
Second Fiscal Quarter
|
|
|
79.23
|
|
|
|
51.82
|
|
Third Fiscal Quarter
|
|
|
84.95
|
|
|
|
48.16
|
|
Fourth Fiscal Quarter
|
|
|
83.50
|
|
|
|
62.16
|
|
Year Ended December 31, 2008:
|
|
|
|
|
|
|
|
|
First Fiscal Quarter
|
|
$
|
73.93
|
|
|
$
|
47.88
|
|
Second Fiscal Quarter
|
|
|
75.00
|
|
|
|
57.84
|
|
Third Fiscal Quarter
|
|
|
63.95
|
|
|
|
32.96
|
|
Fourth Fiscal Quarter
|
|
|
38.00
|
|
|
|
6.73
|
|
Year Ending December 31, 2009:
|
|
|
|
|
|
|
|
|
First Fiscal Quarter
|
|
$
|
23.64
|
|
|
$
|
12.77
|
|
Second Fiscal Quarter
|
|
|
41.69
|
|
|
|
21.02
|
|
Third Fiscal Quarter
|
|
|
42.73
|
|
|
|
32.13
|
|
Fourth Fiscal Quarter (through October 26, 2009)
|
|
|
40.68
|
|
|
|
33.50
|
|
On October 26, 2009, the closing sale price of our common
stock, as reported by the New York Stock Exchange, was $34.44
per share. As of October 21, 2009, there were
approximately 1,830 holders of record of our common stock.
We paid a $0.05 per share dividend on our common stock each
quarter beginning in the fourth quarter of 1997 and through the
third quarter of 2002. In October 2002, as a result of an
amendment to our then existing credit facility, our board of
directors suspended the payment of the quarterly cash dividends
on our common stock. As a result, we have not paid a cash
dividend on our common stock since 2002. The future payment of
dividends on our common stock is subject to:
|
|
|
|
|
the discretion of our board of directors;
|
|
|
|
restrictions under our outstanding Series A preferred stock;
|
|
|
|
limitations under our senior secured credit facility;
|
|
|
|
provisions of the indentures governing our 2012 notes, our 2013
notes, our 2015 notes and our 2017 notes;
|
|
|
|
provisions of the indenture governing our 2029 notes that we are
offering in the exchange offer; and
|
|
|
|
the requirements of the General Corporation Law of the State of
Delaware.
|
Furthermore, our ability to pay dividends on our common stock
will depend upon general business conditions, our financial
performance and other factors our board of directors may
consider relevant. We do not expect to pay cash dividends on our
common stock in the foreseeable future.
71
DESCRIPTION
OF OTHER INDEBTEDNESS
The following contains a summary of the material provisions
of our senior secured credit facility and certain other of our
indebtedness. It does not purport to be complete, is subject to,
and is qualified in its entirety by reference to, the underlying
documents. Some of the terms used herein are defined in these
agreements and we have not included all of such definitions
herein.
Senior
Secured Credit Facility
On October 31, 2007, in connection with the acquisition of
PDIC, we and certain of our subsidiaries amended and restated
our asset based senior secured revolving credit facility. We
originally established this senior secured credit facility in
November 2003. General Cable Industries, our wholly-owned
subsidiary, is the borrower under this senior secured credit
facility, and General Cable Corporation and its U.S. and
Canadian subsidiaries are guarantors thereunder. On
October 26, 2009, we amended the terms of our senior
secured credit facility to, among other things, permit us to
effect the exchange offer with respect to the 2012 notes and to
issue the 2029 notes therein.
The senior secured credit facility, as amended, is a
$400.0 million asset based revolving credit agreement that
includes a sublimit of approximately $50.0 million for the
issuance of commercial and standby letters of credit and a
$20.0 million sublimit for swingline loans. The senior
secured credit facility will mature on July 16, 2012. The
borrower has the option (subject to certain limitations and
conditions) to elect whether loans under the senior secured
credit facility will be LIBOR loans or alternative base rate
loans. Eurodollar loans bear interest at a rate equal to an
adjusted LIBOR rate plus an applicable margin percentage (which
margin has a range of 1.125% to 1.875%) and alternative base
rate loans bear interest at a rate equal to an alternative base
rate plus an applicable margin percentage (which margin has a
range of 0.00% to 0.625%). The applicable margin percentage is
subject to adjustments based upon the excess availability, as
defined in the senior secured credit facility. An unused line
fee is payable with respect to the unborrowed portion of the
senior secured credit facility. At July 3, 2009, we had
outstanding borrowings of $10.6 million and undrawn
availability of $305.6 million under the senior secured
credit facility. We also had outstanding letters of credit
related to the senior secured credit facility of
$29.9 million at July 3, 2009.
Indebtedness under the senior secured credit facility is secured
by a first-priority security interest in tangible and intangible
property and assets of our U.S. and Canadian subsidiaries.
The lenders have also received a pledge of all of the capital
stock of our existing domestic and Canadian subsidiaries and any
future domestic and Canadian subsidiaries and also a pledge of
65% of our first tier foreign subsidiaries (excluding certain
designated immaterial foreign subsidiaries and certain other
specifically excluded first tier foreign subsidiaries).
The senior secured credit facility requires us to comply with
certain financial covenants, the principal covenant of which is
a quarterly minimum fixed charge coverage ratio test, which is
only applicable when excess availability, as defined, is below a
certain threshold. In addition, the senior secured credit
facility includes negative covenants, which limit, among other
things, our and our subsidiaries ability to:
|
|
|
|
|
incur or guarantee additional indebtedness;
|
|
|
|
create liens;
|
|
|
|
enter into sale and leaseback transactions;
|
|
|
|
make investments, loans or advances;
|
|
|
|
make certain restricted payments;
|
|
|
|
consolidate, merge or transfer all or substantially all assets;
and
|
|
|
|
engage in transactions with affiliates.
|
The senior secured credit facility also contains customary
affirmative covenants and events of default, including upon the
occurrence of a change of control. However, we will be permitted
to declare and pay dividends or distributions on our
Series A preferred stock so long as there is no default
under the senior secured credit facility and we meet certain
financial conditions. At July 3, 2009, we were in
compliance with all covenants under our senior secured credit
facility.
72
Certain of the parties to the agreements governing the senior
secured credit facility or their affiliates from time to time
have provided and currently provide investment banking and
financial advisory services to us in the ordinary course of
business, for which they have received or will receive customary
fees and commissions. Certain of the parties to these agreements
or their affiliates may in the future engage in investment
banking or other transactions of a financial nature with us or
our affiliates, including the provision of advisory services,
for which they would receive customary fees or other payments.
Spanish
Term Loans and Spanish Credit Facilities
In February 2008, we entered into a term loan in the amount of
20 million euros with an interest rate of Euribor plus
0.5%. The term loan is payable in semi-annual installments, due
in September and March, maturing in March 2013. Simultaneously,
we entered into a fixed interest rate swap to coincide with the
terms and conditions of the term loan starting in September 2008
and maturing in March 2013, which effectively hedges the
variable interest rate with a fixed interest rate of 4.2%. In
April 2008, we entered into a term loan in the amount of
10 million euros with an interest rate of Euribor plus
0.75%. The term loan is payable in semi-annual installments, due
in April and October, maturing in April 2013. Simultaneously, we
entered into a fixed interest rate swap to coincide with the
terms and conditions of the term loan starting in October 2008
and maturing in April 2013 that effectively hedges the variable
interest rate with a fixed interest rate of 4.58%. In June 2008,
we entered into a term loan in the amount of 21 million
euros with an interest rate of Euribor plus 0.75%. The term loan
is payable in quarterly installments, due in March, June,
September and December, maturing in June 2013. Simultaneously,
we entered into a fixed interest rate swap to coincide with the
terms and conditions of the term loan starting in September 2008
and maturing in June 2013 that effectively hedges the variable
interest rate with a fixed interest rate of 4.48%. As of
July 3, 2009, the U.S. dollar equivalent of
$57.0 million was outstanding under these term loan
facilities. There is no remaining availability under these
Spanish term loans. The weighted average interest rate,
including the effect of the interest rate swaps, was 4.4% under
these Spanish term loans as of July 3, 2009. In September
2009, we entered into a term loan in the amount of
15 million euros with an interest rate of Euribor plus 2%.
The term loan is payable in
semi-annual
installments, due in February and August, maturing in August
2014.
Three Spanish credit facilities totaling 45 million euros
were established in 2008, and mature in 2010, 2011 and 2013,
respectively. The facilities bear interest at a rate of Euribor
plus 0.4% to 0.65%, depending on certain debt ratios. No funds
are currently drawn under these facilities, leaving undrawn
availability of approximately the U.S. dollar equivalent of
$62.9 million as of July 3, 2009. We are required to
pay quarterly commitment fees ranging from 15 to 25 basis
points per year on any unused commitments under these credit
facilities.
The Spanish term loans and the Spanish credit facilities are
subject to certain financial ratios of our European
subsidiaries, including minimum net equity and net debt to
EBITDA (earnings before interest, taxes, depreciation and
amortization). At July 3, 2009, we were in compliance with
all covenants under these facilities.
PDIC
Credit Facilities
On October 31, 2007, we acquired PDIC and assumed the
U.S. dollar equivalent of $64.3 million (at the
prevailing exchange rate on that date) of mostly short-term PDIC
debt as a part of the acquisition. As of July 3, 2009,
PDIC-related debt was $71.1 million, of which approximately
$70.9 million was short-term financing agreements at
various interest rates. The weighted average interest rate was
3.0% as of July 3, 2009. We have approximately
$327.6 million of borrowing availability, subject to
certain defined conditions, under the various credit facilities
at July 3, 2009.
0.875% Senior
Convertible Notes Due 2013
On November 15, 2006, we issued $355.0 million
aggregate principal amount of our 0.875% senior convertible
notes due 2013. At July 3, 2009, $355.0 million
aggregate principal amount of the 2013 notes was outstanding
(excluding $85.3 million in debt discount attributable to
the 2013 notes). The 2013 notes were
73
issued by us under an indenture with U.S. Bank National
Association, as trustee, and are unconditionally guaranteed,
jointly and severally, on a senior unsecured basis, by each of
our subsidiaries that is a borrower or a guarantor under any
U.S. senior credit facility. The 2013 notes bear cash
interest at a fixed rate of 0.875% per year, payable
semi-annually in arrears on May 15 and November 15 of each year.
The 2013 notes mature on November 15, 2013.
The 2013 notes and the related guarantees are our and the
guarantors unsecured senior obligations and rank equal in
right of payment with all of our and the guarantors
existing and future unsecured senior indebtedness and senior in
right of payment to any of our and the guarantors future
subordinated indebtedness. The 2013 notes are effectively
subordinated to all of our and the guarantors existing and
any future secured debt, including obligations under our
existing senior secured credit facility, to the extent of the
value of the assets securing such debt, and are effectively
subordinated to all existing and future indebtedness and other
liabilities, including trade payables, of our subsidiaries that
are not guarantors of the 2013 notes. The indenture governing
the 2013 notes does not contain any financial covenants.
The 2013 notes are convertible at the option of the holder into
our common stock at a conversion rate of 19.8560 shares per
$1,000 principal amount of 2013 notes, which is equivalent to a
conversion price of approximately $50.36 per share, subject to
adjustment under certain circumstances. Holders may convert the
2013 notes upon the occurrence of certain events, including:
|
|
|
|
|
at any time from October 15, 2013 to the close of business
on the business day immediately preceding the maturity date;
|
|
|
|
if, during a specified period in any calendar quarter, the
closing price of our common stock is greater than 130% of the
applicable conversion price per share, as calculated under the
terms of the indenture governing the 2013 notes;
|
|
|
|
upon us making certain distributions to the holders of our
common stock;
|
|
|
|
if we become a party to certain corporate transactions
(including any consolidation or merger);
|
|
|
|
upon a fundamental change, as defined in the indenture governing
the 2013 notes; or
|
|
|
|
if the trading price of the 2013 notes falls below certain
stated thresholds for specified periods of time.
|
For each $1,000 principal amount of 2013 notes surrendered for
conversion, a holder will receive:
|
|
|
|
|
an amount of cash equal to the lesser of $1,000 and the
conversion value, as determined in the manner set forth in the
2013 note indenture; and
|
|
|
|
if the conversion value is greater than $1,000, a specified
number of shares of our common stock, subject to adjustment, and
subject to our election to deliver cash in lieu of all or a
portion of such shares of our common stock.
|
Upon a fundamental change, which is generally a change of
control (as defined in the 2013 note indenture) or a termination
of the trading of our common stock, each holder of the 2013
notes may require us to purchase all or a portion of such
holders notes at a price equal to 100% of the principal
amount of notes to be purchased, plus accrued and unpaid
interest to, but excluding, the fundamental change purchase
date. The conversion rate is subject to adjustment as provided
in the indenture governing the 2013 notes and, if holders of the
2013 notes convert their notes in connection with certain
transactions, we may be required to pay a make-whole premium to
those holders by increasing the conversion rate as provided in
the 2013 note indenture.
1.00% Senior
Convertible Notes Due 2012
On October 2, 2007, we issued our 1.00% senior
convertible notes due 2012 in the aggregate principal amount of
$475.0 million. At July 3, 2009, $475.0 million
aggregate principal amount of the 2012 notes was outstanding
(excluding $87.6 million in debt discount attributable to
the 2012 notes). The 2012 notes were issued by us under an
indenture with U.S. Bank National Association, as trustee,
and are unconditionally
74
guaranteed, jointly and severally, on a senior unsecured basis,
by each of our subsidiaries that is a borrower or guarantor
under any U.S. senior credit facility, or under our 2013
notes, our 2015 notes or our 2017 notes. The 2012 notes bear
cash interest at a fixed rate of 1.00% per year, payable
semi-annually in arrears on April 15 and October 15 of each
year. The 2012 notes mature on October 15, 2012.
The 2012 notes and the related guarantees are our and the
guarantors unsecured senior obligations and rank equal in
right of payment with all of our and the guarantors
existing and future unsecured senior indebtedness and senior in
right of payment to any of our and the guarantors future
subordinated indebtedness. The 2012 notes are effectively
subordinated to all of our and the guarantors existing and
any future secured debt, including obligations under our
existing senior secured credit facility, to the extent of the
value of the assets securing such debt, and are effectively
subordinated to all existing and future indebtedness and other
liabilities, including trade payables, of our subsidiaries that
are not guarantors of the 2012 notes. The indenture governing
the 2012 notes does not contain any financial covenants.
The 2012 notes are convertible at the option of the holder into
our common stock at a conversion rate of 11.9142 shares per
$1,000 principal amount of 2012 notes, which is equivalent to a
conversion price of approximately $83.93 per share, subject to
adjustment under certain circumstances. Holders may convert the
2012 notes upon the occurrence of certain events, including:
|
|
|
|
|
at any time from September 15, 2012 to the close of
business on the business day immediately preceding the maturity
date;
|
|
|
|
if, during a specified period in any calendar quarter, the
closing price of our common stock is greater than 130% of the
applicable conversion price per share, as calculated under the
terms of the indenture governing the 2012 notes;
|
|
|
|
upon us making certain distributions to holders of our common
stock;
|
|
|
|
if we become a party to certain corporate transactions
(including any consolidation or merger);
|
|
|
|
upon a fundamental change, as defined in the indenture governing
the 2012 notes; or
|
|
|
|
if the trading price of the 2012 notes falls below certain
stated thresholds for specified periods of time.
|
For each $1,000 principal amount of 2012 notes surrendered for
conversion, a holder will receive:
|
|
|
|
|
an amount of cash equal to the lesser of $1,000 and the
conversion value, as determined in the manner set forth in the
2012 note indenture; and
|
|
|
|
if the conversion value is greater than $1,000, a specified
number of shares of our common stock, subject to adjustment, and
subject to our election to deliver cash in lieu of all or a
portion of such shares of our common stock.
|
Upon a fundamental change, which is generally a change of
control (as defined in the 2012 note indenture) or a termination
of the trading of our common stock, each holder of the 2012
notes may require us to purchase all or a portion of such
holders notes at a price equal to 100% of the principal
amount of notes to be purchased, plus accrued and unpaid
interest to, but excluding, the fundamental change purchase
date. The conversion rate is subject to adjustment as provided
in the indenture governing the 2012 notes and, if holders of the
2012 notes convert their notes in connection with certain
transactions, we may be required to pay a make-whole premium to
those holders by increasing the conversion rate as provided in
the 2012 note indenture.
Senior
Floating Rate Notes Due 2015 and 7.125% Senior Fixed Rate
Notes Due 2017
On March 21, 2007, we completed the issuance and sale of
$325.0 million aggregate principal amount of senior
unsecured notes, comprised of $125.0 million of senior
floating rate notes due 2015 and $200.0 million of
7.125% senior fixed rate notes due 2017. The 2015 notes and
2017 notes are jointly and severally guaranteed by each of our
subsidiaries that is a borrower or a guarantor under any
U.S. credit facility.
75
The 2015 notes bear cash interest at an annual rate equal to the
3-month
LIBOR rate plus 2.375%, or 2.9% at July 3, 2009. Interest
on the 2015 notes is payable quarterly in arrears in cash on
January 1, April 1, July 1 and October 1 of each year.
The 2017 notes bear cash interest at a fixed rate of 7.125% per
year, payable semi-annually in arrears in cash on April 1 and
October 1 of each year. The 2015 notes mature on April 1,
2015 and the 2017 notes mature on April 1, 2017.
The indenture governing these notes contains covenants that
limit our and certain of our subsidiaries ability to:
|
|
|
|
|
pay dividends on, redeem or repurchase our capital stock;
|
|
|
|
incur or guarantee additional indebtedness;
|
|
|
|
make investments;
|
|
|
|
create liens;
|
|
|
|
sell assets;
|
|
|
|
engage in certain transactions with affiliates;
|
|
|
|
create or designate unrestricted subsidiaries; and
|
|
|
|
consolidate, merge or transfer all or substantially all assets.
|
However, these covenants are subject to important exceptions and
qualifications, one of which will permit us to declare and pay
dividends or distributions on our Series A preferred stock
so long as there is no default on either series of notes and we
meet certain financial conditions.
Subject to the terms and conditions of the indenture governing
these notes, we may, at our option, redeem these notes, in whole
or in part, on or after the following dates and at the following
repurchase prices (stated as a percentage of the aggregate
principal amount redeemed) plus accrued and unpaid interest:
|
|
|
|
|
|
|
|
|
|
|
2015 Notes
|
|
2017 Notes
|
Beginning Date
|
|
Repurchase Price
|
|
Beginning Date
|
|
Percentage
|
|
April 1, 2009
|
|
|
102.000
|
%
|
|
April 1, 2012
|
|
|
103.563
|
%
|
April 1, 2010
|
|
|
101.000
|
%
|
|
April 1, 2013
|
|
|
102.375
|
%
|
April 1, 2011
|
|
|
100.000
|
%
|
|
April 1, 2014
|
|
|
101.188
|
%
|
|
|
|
|
|
|
April 1, 2015
|
|
|
100.000
|
%
|
These notes may also be repurchased at the option of the holders
in connection with a change of control (as defined in the
indenture governing the 2015 notes and the 2017 notes) or in
connection with certain asset sales.
Silec
Credit Facilities
At July 3, 2009, SILEC Cable, S.A.S., our French
subsidiary, had approximately $32.3 million in debt
relating to an uncommitted accounts receivable facility and
$17.1 million of short-term financing agreements at a
weighted average interest rate of 2.6%. At July 3, 2009, we
had a total of approximately $59.1 million of excess
availability under these short-term financing agreements.
Other
Indebtedness
As of July 3, 2009, ECN Cable, a Spanish subsidiary, had
outstanding debt of $26.9 million, consisting of
approximately $2.0 million relating to an uncommitted
accounts receivable facility and approximately
$24.9 million of various credit facilities. As of
July 3, 2009, we had a total of approximately
$48.2 million of excess availability under the uncommitted
accounts receivable facility and the credit facilities.
76
DESCRIPTION
OF THE 2029 NOTES
We will issue the 2029 notes under an indenture (the 2029
note indenture) to be dated as of the settlement date for
the exchange offer, between General Cable Corporation, as
issuer, and U.S. Bank National Association, as trustee. We
have summarized the material provisions of the 2029 notes below.
The following description is not complete and is subject to, and
qualified by reference to, all of the provisions of the 2029
note indenture and the 2029 notes, which we urge you to read
because they, and not this Description of the 2029
Notes, define your rights as a holder of 2029 notes. As
used in this Description of the 2029 Notes, the
words the company, we, us,
our or General Cable refer only to
General Cable Corporation and do not include any of our current
or future subsidiaries. As used in this Description of the
2029 Notes, all references to our common stock are to our
common stock, par value $0.01 per share. See Description
of Capital Stock.
Brief
Description of the 2029 Notes
The 2029 notes will:
|
|
|
|
|
be limited to $439,375,000 aggregate principal amount;
|
|
|
|
mature on November 15, 2029, unless earlier converted,
redeemed by us at our option or repurchased by us at your option
upon the occurrence of a fundamental change;
|
|
|
|
bear cash interest at the rate of 4.50% per year until
November 15, 2019 and thereafter until maturity bear cash
interest at the rate of 2.25% per year;
|
|
|
|
beginning with the six-month interest period commencing
November 15, 2019, may bear contingent interest at the
rates and under the circumstances described under
Contingent Interest;
|
|
|
|
be unsecured obligations subordinated in right of payment to our
existing and future senior debt, effectively subordinated to all
of our existing and future secured indebtedness to the extent of
the value of the assets securing such indebtedness and
effectively subordinated in right of payment to all existing and
future indebtedness and other liabilities of our subsidiaries;
|
|
|
|
be convertible by you at any time on or prior to the close of
business on the trading day preceding the maturity date, only
upon satisfaction of one of the conditions for conversion, as
described under Conversion Rights, into
cash and, under certain circumstances, shares of our common
stock, at an initial conversion price equal to 122.5% of the
average VWAP, provided that in no event will the initial
conversion price be less than $36.75;
|
|
|
|
have an increased conversion rate in the event of certain types
of fundamental changes, as described herein;
|
|
|
|
be subject to redemption for cash by us at any time on or after
November 15, 2019, in whole or in part, at a redemption
price equal to 100% of the principal amount of the 2029 notes
plus accrued and unpaid interest (including contingent and
additional interest, if any) to, but not including, the
redemption date if the last reported sale price of our common
stock has been at least 150% of the conversion price then in
effect for at least 20 trading days during any 30 consecutive
trading day period prior to the date on which we provide notice
of redemption;
|
|
|
|
be subject to redemption for cash by us at any time on or prior
to November 15, 2010, in whole or in part, if a tax
triggering event has occurred, at a redemption price equal to
101.5% of the principal amount thereof, plus, if the redemption
conversion value as of the redemption date of the 2029 notes
being redeemed exceeds their initial conversion value, 95% of
the amount determined by subtracting the initial conversion
value of such 2029 notes from their redemption conversion value
as of the redemption date, plus accrued and unpaid interest
(including additional interest, if any) to, but excluding, the
redemption date;
|
|
|
|
be subject to repurchase by us at your option if a fundamental
change occurs, at a cash repurchase price equal to 100% of the
principal amount of the 2029 notes, plus accrued and unpaid
interest (including contingent and additional interest, if any)
to, but not including, the repurchase date, as set
|
77
|
|
|
|
|
forth under Purchase of 2029 Notes by Us for
Cash at the Option of Holders Upon a Fundamental
Change; and
|
|
|
|
|
|
will be issued in denominations of $1,000 and integral multiples
of $1,000.
|
Neither we nor any of our subsidiaries will be subject to any
financial covenants under the 2029 note indenture. The 2029 note
indenture will not limit the amount of additional indebtedness
that we can create, incur, assume or guarantee, nor will the
2029 note indenture limit the amount of indebtedness or other
liabilities that our subsidiaries can create, incur, assume or
guarantee. In addition, neither we nor any of our subsidiaries
will be restricted under the 2029 note indenture from paying
dividends, incurring debt or issuing or repurchasing our
securities. You are not afforded protection under the 2029 note
indenture in the event of a highly leveraged transaction or a
change in control of us, except to the extent described below
under Conversion Rights and
Purchase of 2029 Notes by Us for Cash at the
Option of Holders Upon a Fundamental Change.
We have applied to list the common stock issuable upon
conversion of the 2029 notes on the New York Stock Exchange. We
do not intend to list the 2029 notes on any national securities
exchange.
The 2029 notes initially will be issued the form of one or more
global notes. The global notes will be deposited with the
trustee as custodian for The Depository Trust Company, or
DTC. Except in limited circumstances described below under
Global Notes; Book-Entry; Form,
beneficial interests in the 2029 notes will be shown on, and
transfers of beneficial interests in the 2029 notes will be
effected only through, records maintained by DTC or its nominee,
and any such interests may not be exchanged for certificated
notes. For information regarding conversion, registration of
transfer and exchange of global notes held by DTC, see
Global Notes; Book-Entry; Form.
If certificated notes are issued, you may present them for
conversion, registration of transfer and exchange, without
service charge, at our office or agency in New York City, which
will initially be the office or agency of the trustee in New
York City.
Subordination
The payment of the principal, any premium and interest
(including contingent and additional interest, if any) on the
2029 notes, and any cash payable upon conversion of the 2029
notes, including amounts payable on any redemption or
repurchase, will be subordinated to the prior payment in full of
all of our existing and future senior debt. The 2029 notes are
also effectively subordinated to all secured indebtedness of the
company to the extent of the value of the assets securing such
indebtedness and are also effectively subordinated to the
existing and future debt or other liabilities of our
subsidiaries, including trade payables.
As of July 3, 2009, our total consolidated debt was
approximately $1,253.1 million (net of $172.9 million
of debt discount), $129.8 million of which was secured
indebtedness. In addition, as of July 3, 2009, our
subsidiaries had $1,411.5 million in liabilities, excluding
consolidated indebtedness but including trade payables, all of
which liabilities will be effectively senior to the 2029 notes.
Assuming that $475.0 million outstanding aggregate
principal amount of 2012 notes are validly tendered in the
exchange offer and are exchanged for approximately $439.4
million aggregate principal amount of 2029 notes pursuant to the
terms of the exchange offer, our total consolidated debt as of
July 3, 2009 would have been approximately $1,025.5 million
(net of $364.9 million of debt discount).
Senior debt is defined in the 2029 note indenture to
mean the principal of (and premium, if any) and interest
(including contingent and additional interest, if any, and all
interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such
proceeding) on, and all fees and other amounts payable in
connection with, the following, whether absolute or contingent,
secured or unsecured, due or to become due, outstanding on the
date of the 2029 note indenture or thereafter created, incurred
or assumed:
|
|
|
|
|
our indebtedness evidenced by a credit or loan agreement, note,
bond or other written obligation;
|
|
|
|
all of our obligations for money borrowed;
|
78
|
|
|
|
|
our obligations (i) as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally
accepted accounting principles or (ii) as lessee under
other leases for facilities, capital equipment or related
assets, whether or not capitalized, entered into or leased for
financing purposes;
|
|
|
|
all of our obligations under (i) interest rate swap
agreements, interest rate cap agreements, interest rate collar
agreements and similar agreements or arrangements and
(ii) foreign currency or commodity hedge, swap, exchange
and similar agreements;
|
|
|
|
all of our obligations with respect to letters of credit,
bankers acceptances and similar facilities (including
reimbursement obligations with respect to the foregoing);
|
|
|
|
all of our obligations issued or assumed as the deferred
purchase price of property or services (but excluding trade
accounts payable and accrued liabilities arising in the ordinary
course of business);
|
|
|
|
all obligations of the type referred to in the above clauses of
another person and all dividends of another person, the payment
of which, in either case, we have assumed or guaranteed, or for
which we are responsible or liable, directly or indirectly,
jointly or severally, as obligor, guarantor or otherwise, or
which are secured by a lien on our property; and
|
|
|
|
renewals, extensions, modifications, replacements, restatements
and refundings of, or any indebtedness or obligation issued in
exchange for, any such indebtedness or obligation described in
the above clauses of this definition.
|
Senior debt will not include
|
|
|
|
|
indebtedness or other obligations under the 2029 notes;
|
|
|
|
any other indebtedness or obligation created, evidenced, assumed
or guaranteed if its terms or the terms of the instrument under
which or pursuant to which it is issued expressly provide that
it is subordinate, or not superior, in right of payment, to the
2029 notes or expressly provide that it is pari
passu or junior to the 2029 notes;
|
|
|
|
any indebtedness or obligation of ours to any of our
subsidiaries; or
|
|
|
|
trade payables or indebtedness for goods or materials purchased
or services obtained in the ordinary course.
|
We may not make any payment on account of principal, premium or
interest (including contingent or additional interest, if any)
on the 2029 notes, or cash payable upon conversion of the 2029
notes, or redeem or repurchase the 2029 notes, if either of the
following occurs:
|
|
|
|
|
we default in our obligations to pay principal, premium,
interest or other amounts on our senior debt, including a
default under any redemption or repurchase obligation, and the
default continues beyond any grace period that we may have to
make those payments; or
|
|
|
|
any other default occurs and is continuing on any designated
senior debt (a nonpayment default) and (i) the
default permits the holders of the designated senior debt to
accelerate its maturity and (ii) the trustee has received a
notice (a payment blockage notice) of the default
from us, the holder of such debt or such other person permitted
to give such notice under the 2029 note indenture.
|
If payments on the 2029 notes have been blocked by a payment
default on senior debt, payments on the 2029 notes may resume
when the payment default has been cured or waived or ceases to
exist. If payments on the 2029 notes have been blocked by a
nonpayment default, payments on the 2029 notes may resume on the
earlier of (i) the date the nonpayment default is cured or
waived or ceases to exist and (ii) 179 days after the
payment blockage notice is received.
No nonpayment default that existed on the day a payment blockage
notice was delivered to the trustee can be used as the basis for
any subsequent payment blockage notice. In addition, once a
holder of designated senior debt has blocked payment on the 2029
notes by giving a payment blockage notice, no new period of
payment blockage can be commenced pursuant to a subsequent
payment blockage notice until both of the following are
satisfied:
|
|
|
|
|
365 days have elapsed since the effectiveness of the
immediately prior payment blockage notice; and
|
79
|
|
|
|
|
all scheduled payments of principal, any premium and interest
with respect to the 2029 notes that have come due, and all cash
payments due in respect of conversions of 2029 notes, have been
paid in full in cash.
|
Designated senior debt means our obligations under
any particular senior debt in which the instrument creating or
evidencing the same or the assumption or guarantee thereof (or
related agreements or documents to which we are a party)
expressly provides that such indebtedness shall be
designated senior debt for purposes of the 2029 note
indenture. The instrument, agreement or other document
evidencing any designated senior debt may place limitations and
conditions on the right of such senior debt to exercise the
rights of designated senior debt.
Upon any acceleration of the principal due on the 2029 notes as
a result of an event of default or payment or distribution of
our assets to creditors upon any dissolution, winding up,
liquidation or reorganization, whether voluntary or involuntary,
marshaling of assets, assignment for the benefit of creditors,
or in bankruptcy, insolvency, receivership or other similar
proceedings, all principal, premium, if any, interest (including
contingent and additional interest, if any) and other amounts
due on all senior debt must be paid in full before you are
entitled to receive any payment. See Events of
Default and Acceleration.
In addition to the contractual subordination provisions
described above, the 2029 notes will also be effectively
subordinated to all of our existing and future secured
indebtedness to the extent of the value of the assets securing
such indebtedness and effectively subordinated to all
indebtedness and other liabilities, including trade payables and
lease obligations, of our subsidiaries. The ability of our
subsidiaries to pay dividends and make other payments to us is
also restricted by, among other things, applicable corporate and
other laws and regulations as well as agreements to which our
subsidiaries are or may become a party.
By reason of the subordination provisions contained in the 2029
note indenture, in the event of a liquidation or insolvency
proceeding, creditors of the company who are holders of senior
debt of the company may recover more, ratably, than the holders
of the 2029 notes, and holders of the 2029 notes will likely
experience a reduction or elimination of payments on the 2029
notes.
Payment
at Maturity
On the maturity date, each holder will be entitled to receive on
such date $1,000 in cash for each $1,000 in principal amount of
2029 notes, together with accrued and unpaid interest (including
contingent and additional interest, if any) to, but not
including, the maturity date. With respect to global notes,
principal, premium, if any, and interest (including contingent
and additional interest, if any) will be paid to DTC in
immediately available funds. With respect to any certificated
notes, principal, premium, if any, and interest (including
contingent and additional interest, if any) will be payable at
our office or agency in New York City, which initially will be
the office or agency of the trustee in New York City.
Interest
The 2029 notes will bear cash interest at a rate of 4.50% per
year until November 15, 2019 and thereafter until maturity
will bear cash interest at the rate of 2.25% per year. Interest
will accrue from the date of initial issue of the 2029 notes,
namely the settlement date for the exchange offer, or from the
most recent date to which interest has been paid or duly
provided for. Beginning with the six-month interest period
commencing November 15, 2019, we will pay contingent
interest under certain circumstances as described below under
Contingent Interest.
We will pay interest semi-annually in arrears in cash on
November 15 and May 15 of each year, beginning on May 15,
2010, to the holders of record at the close of business on the
preceding November 1 and May 1, respectively; provided,
however, that accrued and unpaid interest (including contingent
and additional interest, if any) payable upon a redemption or a
purchase by us upon a fundamental change will be paid to the
person to whom principal is payable, unless the redemption date
or fundamental change purchase date is after a record date and
on or prior to the related interest payment date, in which case
accrued and unpaid interest (including contingent and additional
interest, if any) to, but excluding, such interest payment date
shall be paid on such interest payment date to the record holder
as of the record date.
80
In general, we will not pay accrued and unpaid interest (or
contingent or additional interest) on any 2029 notes that are
surrendered for conversion. If a holder surrenders a 2029 note
for conversion after the close of business on the record date
for the payment of an installment of interest and before the
related interest payment date, then, despite the conversion, we
will, on the interest payment date, pay the interest (including
contingent and additional interest, if any) due with respect to
the 2029 note to the person who was the record holder of the
2029 note at the close of business on the record date. A holder
who surrenders the 2029 note for conversion after the close of
business on the record date must pay to the conversion agent
upon surrender of the 2029 note an amount equal to the interest
(including contingent and additional interest, if any) payable
on such next succeeding interest payment date on the portion of
the 2029 note being converted, provided that no such payment
need be made:
|
|
|
|
|
in connection with a conversion following the regular record
date preceding the maturity date;
|
|
|
|
if we have specified a redemption date that is after a regular
record date and on or prior to the corresponding interest
payment date; or
|
|
|
|
if we have specified a fundamental change purchase date that is
after a regular record date and on or prior to the corresponding
interest payment date; or
|
|
|
|
to the extent of any overdue interest, if any overdue interest
exists at the time of conversion with respect to the 2029 note.
|
Except as provided below, we will pay interest (including
contingent and additional interest, if any) on:
|
|
|
|
|
the global 2029 note to DTC in immediately available funds;
|
|
|
|
any certificated 2029 notes having an aggregate principal amount
of $5,000,000 or less by check mailed to the holders of those
2029 notes; and
|
|
|
|
any certificated 2029 notes having an aggregate principal amount
of more than $5,000,000 by wire transfer in immediately
available funds if requested by the holders of those 2029 notes.
|
At maturity, interest (including contingent and additional
interest, if any) on outstanding certificated 2029 notes will be
payable at the office of the trustee as set forth in the 2029
note indenture. We will make payments of interest (including
contingent and additional interest, if any) at maturity on
outstanding global 2029 notes to DTC in immediately available
funds.
Any payment required to be made on any day that is not a
business day will be made on the next succeeding business day,
and no interest (including contingent and additional interest,
if any) on such payment will accrue or be payable for the period
from and after the date on which such payment is due to such
next succeeding business day. Interest (including contingent and
additional interest, if any) will be calculated using a
360-day
year
composed of twelve
30-day
months. A business day is any day that is not a day
on which banking institutions in The City of New York are
authorized or obligated to close.
Contingent
Interest
Beginning with the six-month interest period commencing
November 15, 2019, we will pay contingent interest during
any six-month interest period to the holders of the 2029 notes
if the trading price of the 2029 notes for each of the five
trading days ending on the second trading day immediately
preceding the first day of the applicable six-month interest
period equals or exceeds 120% of the principal amount of the
2029 notes.
During any six-month period when contingent interest shall be
payable, the contingent interest payable per $1,000 principal
amount of the 2029 notes will equal 0.50% of the average trading
price of $1,000 principal amount of 2029 notes during the five
trading days ending on the second trading day immediately
preceding the first day of the applicable six-month interest
period. We will pay contingent interest semi-annually in arrears
in cash on the same dates on which payments of non-contingent
interest are made.
Trading price for purposes of determining contingent
interest shall have the meaning set forth under
Conversion Rights Conversion Based
on Trading Price of 2029 Notes, except that, for purposes
of
81
determining the trading price for the contingent interest
provisions only, if the trustee cannot reasonably obtain at
least one bid for $5,000,000 principal amount of the 2029 notes
from a nationally recognized securities dealer, then the trading
price per $1,000 principal amount of the 2029 notes will be
deemed to equal the product of:
|
|
|
|
|
the conversion rate then in effect; and
|
|
|
|
the average closing price of our common stock over the five
trading-day
period ending on the determination date.
|
We will notify holders by issuing a press release prior to the
beginning of any six-month interest period that they will be
entitled to receive contingent interest during such six-month
interest period.
Conversion
Rights
General
Holders may convert their 2029 notes into cash and, if
applicable, shares of our common stock prior to the close of
business on the trading day immediately preceding the maturity
date, only if the conditions for conversion described below are
satisfied.
The initial conversion rate of the 2029 notes will be specified
in the 2029 note indenture for the 2029 notes, and will equal
1,000 divided by the initial conversion price. The initial
conversion price will be a price specified in the 2029 note
indenture for the 2029 notes equal to 122.5% of the average
VWAP, rounded to four decimal places; provided that in no event
will the initial conversion price be less than $36.75. The
average VWAP means the arithmetic average, as
determined by us, of the daily VWAP for each trading day during
the ten trading day period ending on and including the
expiration date, rounded to four decimal places. The daily
VWAP for any trading day means the per share volume
weighted average price of our common stock on that day as
displayed under the heading Bloomberg VWAP on Bloomberg
Page BGC.N <Equity> AQR (or its equivalent
successor page if such page is not available) in respect of the
period from the scheduled open of trading on the relevant
trading day until the scheduled close of trading on the relevant
trading day (or if such volume weighted average price is
unavailable, the market price of one share of our common stock
on such trading day determined, using a volume weighted average
method, by a nationally recognized investment banking firm
retained by us for this purpose).
Throughout the exchange offer, the indicative average VWAP, the
resulting indicative initial conversion price and initial
conversion rate will be available at
http://www.dfking.com/generalcable
and from the information agent at one of its numbers listed on
the back cover page of this prospectus. We will announce the
definitive initial conversion price and initial conversion rate
by 4:30 p.m., New York City time, on the date the exchange
offer is currently scheduled to expire, and the definitive
initial conversion price and initial conversion rate will also
be available by that time at
http://www.dfking.com/generalcable
and from the information agent.
The following summarizes the initial conversion price and
initial conversion rate information that will be available
during the exchange offer:
|
|
|
|
|
By 4:30 p.m., New York City time, on each trading day
before the ten trading day period referred to in the next
bullet, the web page referred to above will show an indicative
initial conversion price and initial conversion rate calculated
using the daily VWAP for that day and the preceding nine trading
days (as though that day were the expiration date of the
exchange offer).
|
|
|
|
During the ten trading day period ending on and including the
currently scheduled expiration date, the web page will show
indicative initial conversion price and initial conversion rate
using cumulative actual trading data, updated every three hours
starting at 10:30 a.m., New York City time. In particular:
|
|
|
|
|
|
On the first trading day of that ten trading day period,
indicative conversion price and initial conversion rate will
reflect actual
intra-day
VWAP during the elapsed portion of that day.
|
|
|
|
On each subsequent trading day during that ten trading day
period, indicative conversion price and initial conversion rate
will reflect the simple arithmetic average of VWAP on the
preceding trading
|
82
|
|
|
|
|
days in that ten trading day period and actual
intra-day
VWAP during the elapsed portion of that subsequent trading day,
weighting VWAP for each preceding trading day in the period the
same as such actual
intra-day
VWAP. For example, on the last trading day of the ten trading
day period the simple arithmetic average will equal (a) the
combined VWAP for the preceding nine trading days plus the
actual
intra-day
VWAP during the elapsed portion of the last trading day divided
by (b) ten.
|
Intra-day
VWAP at any time on any day means the volume weighted
average price of our common stock on the New York Stock Exchange
for the period beginning at the official open of trading on that
day and ending as of that time on that day, as calculated by
Bloomberg. The data used to derive the
intra-day
VWAP during the last five trading days will reflect a
20-minute
reporting delay.
|
|
|
|
|
We will announce the definitive initial conversion price and
initial conversion rate by 4:30 p.m., New York City time,
on the date the exchange offer is scheduled to expire, and the
definitive exchange ratio, initial conversion price and initial
conversion rate will also be available by that time at
http://www.dfking.com/generalcable.
|
|
|
|
At any time during the exchange offer, you may also contact the
information agent to obtain the indicative average VWAP, the
resulting indicative initial conversion price and initial
conversion rate (and, once determined, the definitive initial
conversion price and initial conversion rate) at its toll-free
number provided on the back cover page of this prospectus.
|
The conversion rate will be subject to adjustment as described
below under Conversion Rate Adjustments and
Business Combinations.
As described under Conversion
Procedures Settlement Upon Conversion, upon
conversion of 2029 notes, holders who convert will receive cash
and, if applicable, at our option as described below, shares of
our common stock. The conversion rate per $1,000 principal
amount of 2029 notes in effect at any given time is referred to
as the applicable conversion rate in this prospectus and will be
subject to adjustment as described below. The applicable
conversion price per share of common stock as of any given
time is equal to $1,000 divided by the then applicable
conversion rate, rounded to the nearest cent. A 2029 note for
which a holder has delivered a fundamental change purchase
notice, as described below, requiring us to purchase the 2029
note may be surrendered for conversion only if such notice is
withdrawn in accordance with the 2029 note indenture. A holder
may convert fewer than all of such holders 2029 notes so
long as the 2029 notes converted are an integral multiple of
$1,000 principal amount.
Settlement
Upon Conversion
Upon conversion of any 2029 note, a holder will receive, for
each $1,000 principal amount of 2029 notes surrendered for
conversion:
|
|
|
|
|
cash in an amount equal to the lesser of (1) $1,000 and
(2) the conversion value, as defined below; and
|
|
|
|
if the conversion value is greater than $1,000, a number of
shares of our common stock, which we refer to as the
remaining shares, equal to the sum of the daily
share amounts, as defined below, for each of the 20 consecutive
trading days in the conversion reference period, as defined
below, appropriately adjusted to reflect events occurring during
the conversion reference period that would result in a
conversion rate adjustment, subject to our right to deliver cash
in lieu of all or a portion of such remaining shares as
described below.
|
The conversion value means the average of the daily
conversion values, as defined below, for each of the 20
consecutive trading days of the conversion reference period.
The daily conversion value means, with respect to
any trading day, for each $1,000 principal amount of 2029 notes,
an amount equal to the product of (1) the applicable
conversion rate and (2) the daily VWAP (as defined above
under Conversion Rights
General) per share of our common stock on each such
trading day; provided that after the consummation of a change of
control in which the consideration is comprised entirely of
cash, the amount used in clause (2) will be the cash price
per share received by holders of our common stock in such change
of control.
83
The conversion reference period means:
|
|
|
|
|
for 2029 notes that are converted during the 25 scheduled
trading days prior to the maturity date of the 2029 notes, the
20 consecutive trading days preceding and ending on the third
trading day prior to the maturity date, subject to any extension
due to a market disruption event; and
|
|
|
|
in all other instances, the 20 consecutive trading days
beginning on the third trading day following the conversion date.
|
The conversion date with respect to a 2029 note
means the date on which the holder of the 2029 note has complied
with all requirements under the 2029 note indenture to convert
such 2029 note.
The daily share amount means, for each trading day
during the conversion reference period and each $1,000 principal
amount of 2029 notes surrendered for conversion, a number of
shares (but in no event less than zero) determined by the
following formula:
(daily
VWAP per share of our common stock for such trading day ×
applicable conversion rate) $1,000
daily
VWAP per share of our common stock for such trading day × 20
A trading day is any day on which (i) there is
no market disruption event (as defined below) and (ii) the
New York Stock Exchange is open for trading, or, if our common
stock is not listed on the New York Stock Exchange, any day on
which the Nasdaq Global Market is open for trading, or, if our
common stock is neither listed on the New York Stock Exchange
nor quoted on the Nasdaq Global Market, any day on which the
principal national securities exchange on which our common stock
is listed is open for trading, or, if the common stock is not
listed on a national securities exchange, any business day. A
trading day only includes those days that have a
scheduled closing time of 4:00 p.m., New York City time, or
the then standard closing time for regular trading on the
relevant exchange or trading system.
A market disruption event means the occurrence or
existence for more than one half hour period in the aggregate on
any scheduled trading day for our common stock of any suspension
or limitation imposed on trading (by reason of movements in
price exceeding limits permitted by the New York Stock Exchange
or otherwise) in our common stock or in any options, contracts
or future contracts relating to our common stock, and such
suspension or limitation occurs or exists at any time before
1:00 p.m., New York City time, on such day.
On any day prior to the first trading day of the applicable
conversion reference period, we may specify a percentage of the
daily share amount that will be settled in cash, referred to as
the cash percentage in this prospectus. If we elect to specify a
cash percentage, the amount of cash that we will deliver in
respect of each trading day in the applicable conversion
reference period will equal the product of: (1) the cash
percentage; (2) the daily share amount for such trading
day; and (3) the daily VWAP of our common stock on such
trading day (provided that after the consummation of a change of
control in which the consideration is comprised entirely of
cash, the amount used in this clause (3) will be the cash
price per share received by holders of our common stock in such
change of control). The number of shares deliverable in respect
of each trading day in the applicable conversion reference
period will be a percentage of the daily share amount equal to
100% minus the cash percentage. If we do not specify a cash
percentage by the start of the applicable conversion reference
period, we must settle 100% of the daily share amount for each
trading day in the applicable conversion reference period with
shares of our common stock; provided, however, that we will pay
cash in lieu of fractional shares otherwise issuable upon
conversion of such 2029 note.
A holder of a 2029 note otherwise entitled to a fractional share
will receive cash equal to the applicable portion of the
arithmetic average of the daily VWAP of our common stock for
each of the 20 consecutive trading days of the conversion
reference period, rounding to the nearest whole cent.
The conversion value, daily share amount and the number of
shares, if any, to be issued upon conversion of the 2029 notes
will be determined by us at the end of the conversion reference
period. Upon conversion of a 2029 note, we will pay the cash and
deliver the shares of common stock, as applicable, as promptly
as
84
practicable after the later of the conversion date and the date
all calculations necessary to make such payment and delivery
have been made, but in no event later than ten business days
after the later of such dates.
We may not have sufficient cash to pay, or may not be permitted
to pay, the cash portion of the required consideration that we
may need to pay if the 2029 notes are converted. If we do not
have sufficient cash on hand at the time of conversion, we may
have to borrow funds under our senior secured credit facility or
raise additional funds through other debt or equity financing.
Our ability to raise such financing will depend on prevailing
market conditions and other factors, some of which are beyond
our control. Further, we may not be able to raise such financing
within the period required to satisfy our obligation to make
timely payment upon any conversion. See Risk
Factors Risks Related to the 2029 Notes
We may not be able to pay the cash portion of the conversion
price pursuant to any conversion of the 2029 notes, the 2012
notes or the 2013 notes. In addition, your receipt of cash
payable upon conversion may be delayed or prevented by the
subordination provisions applicable to the 2029 notes. See
Subordination.
The ability to surrender 2029 notes for conversion will expire
at the close of business on the trading day immediately
preceding the stated maturity date.
Conversion
Based on Common Stock Price
Holders may surrender 2029 notes for conversion on any business
day in any calendar quarter commencing at any time after
March 31, 2010, and only during such calendar quarter, if,
as of the last day of the preceding calendar quarter, the
closing price of our common stock for at least 20 trading days
in a period of 30 consecutive trading days ending on the last
trading day of such preceding calendar quarter was more than
130% of the applicable conversion price per share of common
stock on the last day of such preceding calendar quarter,
referred to as the conversion trigger price in this prospectus.
The closing price of our common stock on any trading
day means the reported last sale price per share (or, if no last
sale price is reported, the average of the bid and ask prices
per share or, if more than one in either case, the average of
the average bid and the average ask prices per share) on such
date reported by the New York Stock Exchange, or, if our common
stock is not listed on the New York Stock Exchange, as reported
by the Nasdaq Global Market, or, if our common stock is not
quoted on the Nasdaq Global Market, as reported by the principal
national securities exchange on which our common stock is
listed, or otherwise as provided in the 2029 note indenture.
The conversion agent will, on our behalf, determine at the
beginning of each calendar quarter commencing at any time after
March 31, 2010 whether the 2029 notes are convertible as a
result of the price of our common stock and notify us and the
trustee.
Conversion
Based on Trading Price of 2029 Notes
Holders may also surrender 2029 notes for conversion on any
business day during the five business day period after any five
consecutive trading day period in which the trading
price per $1,000 principal amount of 2029 notes, as
determined following a request by a holder of 2029 notes in
accordance with the procedures described below, for each day of
that period was less than 98% of the product of the closing
price of our common stock and the then applicable conversion
rate, referred to as the trading price condition in this
prospectus.
The trading price of the 2029 notes on any date of
determination means the average of the secondary market bid
quotations obtained by the trustee for $5,000,000 principal
amount of the 2029 notes at approximately 3:30 p.m., New
York City time, on such determination date from three nationally
recognized securities dealers we select, which may include
Goldman, Sachs & Co.
and/or
J.P. Morgan Securities Inc.; provided, that if three such
bids cannot reasonably be obtained by the trustee, but two such
bids are obtained, then the average of the two bids shall be
used, and if only one such bid can reasonably be obtained by the
trustee, that one bid shall be used. If the trustee cannot
reasonably obtain at least one bid for $5,000,000 principal
amount of the 2029 notes from a nationally recognized securities
dealer or, in our reasonable judgment, the bid quotations are
not indicative of the secondary market value of the 2029 notes,
then the
85
trading price per $1,000 principal amount of 2029 notes will be
deemed to be less than 98% of the product of the closing price
of our common stock and the then applicable conversion rate per
$1,000 principal amount of the 2029 notes.
In connection with any conversion upon satisfaction of the
trading price condition, the trustee shall have no obligation to
determine the trading price of the 2029 notes unless we have
requested such determination; and we shall have no obligation to
make such request unless a holder of the 2029 notes provides us
with reasonable evidence that the trading price per $1,000
principal amount of 2029 notes would be less than 98% of the
product of the closing price of our common stock and the then
applicable conversion rate per $1,000 principal amount of the
2029 notes. At such time, we shall instruct the trustee to
determine the trading price of the 2029 notes beginning on the
next trading day and on each successive trading day until the
trading price per $1,000 principal amount of the 2029 notes is
greater than 98% of the product of the closing price of our
common stock and the then applicable conversion rate per $1,000
principal amount of 2029 notes.
Conversion
Upon Occurrence of Specified Corporate
Transactions
Conversions
Upon Certain Distributions
If we elect to:
|
|
|
|
|
distribute to all or substantially all holders of our common
stock any rights entitling them to purchase, for a period
expiring within 45 days of distribution, common stock, or
securities convertible into common stock, at less than, or
having a conversion price per share less than, the then current
market price of our common stock; or
|
|
|
|
distribute to all or substantially all holders of our common
stock our assets, cash, debt securities or certain rights to
purchase our securities, which distribution has a per share
value as determined by our board of directors exceeding 15% of
the closing price of our common stock on the trading day
immediately preceding the declaration date for such distribution,
|
we will notify the holders of 2029 notes at least 25 trading
days prior to the ex-dividend date for such distribution;
provided, that if we distribute rights pursuant to a stockholder
rights agreement, we will notify the holders of the 2029 notes
on the business day after we are required to give notice
generally to our stockholders pursuant to such stockholder
rights agreement if such date is less than 25 trading days prior
to the date of such distribution. Once we have given that
notice, holders may surrender their 2029 notes for conversion at
any time until the earlier of the close of business on the
business day prior to the ex-dividend date or our announcement
that such distribution will not take place. A holder may not
convert its 2029 notes under this conversion provision upon the
above specified distributions if the holder will otherwise
participate in such distribution without converting their 2029
notes. The ex-dividend date is the first date upon
which a sale of the common stock does not automatically transfer
the right to receive the relevant distribution from the seller
of the common stock to its buyer.
Conversions
Upon Specified Events
If we are party to any transaction or event (including, but not
limited to, any consolidation, merger or binding share exchange,
other than changes resulting from a subdivision or combination)
pursuant to which all or substantially all shares of our common
stock would be converted into cash, securities or other
property, a holder may surrender 2029 notes for conversion at
any time from and after the date that is 15 days prior to
the anticipated effective date of the transaction until the
earlier of 35 days after the actual date of such
transaction or the date that we announce that such transaction
will not take place. We will notify holders and the trustee as
promptly as practicable following the date we publicly announce
such transaction (but in no event less than 15 days prior
to the effective date of such transaction or, if such
transaction also constitutes a fundamental change, no later than
the date we provide notice of the occurrence of the fundamental
change).
If such transaction also constitutes a fundamental change, the
holder will be able to require us to purchase all or a portion
of such holders 2029 notes as described under
Purchase of 2029 Notes by Us for Cash at the
Option of Holders Upon a Fundamental Change. In addition,
if a transaction described in clause (1),
86
(2) or (4) of the definition of change of
control occurs, we will adjust the conversion rate for the
2029 notes tendered for conversion in connection with such
fundamental change transaction, as described under
Determination of Make Whole Premium.
Notwithstanding the foregoing, 2029 notes will not become
convertible by reason of a merger, consolidation or other
transaction effected with one of our direct or indirect
subsidiaries for the purpose of changing our state of
incorporation to any other state within the United States or the
District of Columbia.
Conversion
Upon a Fundamental Change
We will notify the holders of 2029 notes and the trustee at
least 15 days prior to the anticipated effective date of
any fundamental change, as defined below under
Purchase of 2029 Notes by Us for Cash at the
Option of Holders Upon a Fundamental Change, that we know
or reasonably should know will occur. If we do not know, or
should not reasonably know, that a fundamental change will occur
until a date that is within 15 days before the anticipated
effective date of such fundamental change, we will notify the
holders and the trustee promptly after we have knowledge of such
fundamental change. Holders may surrender 2029 notes for
conversion at any time beginning 15 days before the
anticipated effective date of a fundamental change and until the
trading day prior to the fundamental change purchase date.
Conversion
in Connection with a Redemption
If we elect to redeem 2029 notes, such 2029 notes to be redeemed
may be converted, in full or in part, at any time from the date
notice of redemption is given by the company to holders until
5:00 p.m., New York City time, on the trading day
immediately preceding the redemption date.
Conversion
at Maturity
Holders may surrender 2029 notes for conversion at any time
beginning on August 31, 2029 and ending at 5:00 p.m.,
New York City time, on the trading day immediately preceding the
maturity date.
Conversion
Procedures
To convert a certificated 2029 note, a holder must:
|
|
|
|
|
complete and manually sign a conversion notice, a form of which
is on the back of the 2029 note, and deliver the conversion
notice to the conversion agent;
|
|
|
|
surrender the 2029 note to the conversion agent;
|
|
|
|
if required by the conversion agent, furnish appropriate
endorsements and transfer documents;
|
|
|
|
if required, pay funds equal to interest payable (including
contingent and additional interest, if any) on the next interest
payment date to which a holder is not entitled; and
|
|
|
|
if required, pay any transfer or similar taxes.
|
To convert a beneficial interest in a global note, a holder must
deliver to DTC the appropriate instruction form for conversion
pursuant to DTCs conversion program and, if required, pay
funds equal to interest payable (including contingent and
additional interest, if any) on the next interest payment date
to which the holder is not entitled and, if required, pay all
transfer or similar taxes.
On conversion of a 2029 note, a holder will receive the payment
described under Conversion Rights above.
On conversion of a 2029 note, a holder will not receive, except
as described below, any cash payment representing any accrued
and unpaid interest (including contingent and additional
interest, if any). Instead, accrued and unpaid interest
(including contingent and additional interest, if any) will be
deemed paid by the consideration paid upon conversion. Delivery
to the holder of the cash consideration and any remaining shares
(or any cash in lieu thereof) upon conversion of such
holders 2029 notes as described above under
87
Conversion Rights, together with any
cash payment of such holders fractional shares, will thus
be deemed:
|
|
|
|
|
to satisfy our obligation to pay the principal amount of a 2029
note; and
|
|
|
|
to satisfy our obligation to pay accrued and unpaid interest
(including contingent and additional interest, if any).
|
As a result, accrued and unpaid interest (including contingent
and additional interest, if any) is deemed paid in full rather
than cancelled, extinguished or forfeited. Holders of 2029 notes
surrendered for conversion during the period from the close of
business on any regular record date next preceding any interest
payment date to the opening of business of such interest payment
date will receive the semiannual interest payable (including
contingent and additional interest, if any) on such 2029 notes
on the corresponding interest payment date notwithstanding the
conversion, and such 2029 notes upon surrender must be
accompanied by funds equal to the amount of such payment;
provided that no such payment need be made:
|
|
|
|
|
in connection with a conversion following the regular record
date preceding the maturity date;
|
|
|
|
if we have specified a redemption date that is after a regular
record date and on or prior to the corresponding interest
payment date; or
|
|
|
|
if we have specified a fundamental change purchase date that is
after a regular record date and on or prior to the corresponding
interest payment date; or
|
|
|
|
to the extent of any overdue interest, if any overdue interest
exists at the time of conversion with respect to such 2029 note.
|
We will not be required to convert any 2029 notes that are
surrendered for conversion without payment of interest
(including contingent and additional interest, if any) as
required by this paragraph.
The conversion rate will not be adjusted for accrued and unpaid
interest (including contingent and additional interest, if any).
For a discussion of the material U.S. federal income tax
considerations with respect to a holder that receives cash
consideration and any remaining shares (and any cash in lieu
thereof), upon surrendering 2029 notes for conversion, see
Material U.S. Federal Income Tax Considerations.
Conversion
Rate Adjustments and Business Combinations
We will adjust the conversion rate for certain events, including:
(1) the issuance of our common stock as a dividend or
distribution to holders of our common stock;
(2) subdivisions and combinations of our common stock;
(3) the distribution to all or substantially all holders of
our common stock of any rights entitling them to purchase, for a
period expiring within 45 days of distribution, common
stock, or securities convertible into common stock, at less
than, or having a conversion price per share less than, the then
current market price of our common stock;
(4) the dividend or other distribution to all or
substantially all holders of our common stock of shares of our
capital stock, other than common stock, or evidences of our
indebtedness or our assets, including securities (but excluding
any issuance of those rights referred to in clause (3)
above, dividends and distributions in connection with a
reclassification, change, consolidation, merger, combination,
liquidation, dissolution, winding up, sale or conveyance
resulting in a change in the conversion consideration pursuant
to the second succeeding paragraph, or dividends or
distributions paid exclusively in cash for which adjustment is
made pursuant to clause (5) below);
(5) dividends or other distributions consisting exclusively
of cash to all or substantially all holders of our common
stock; and
(6) payments to holders in respect of a tender offer or
exchange offer for our common stock by us or any of our
subsidiaries to the extent that the cash and fair market value
of any other consideration
88
included in the payment per share exceeds the closing price of
our common stock on the trading day following the last date on
which tenders or exchanges may be made pursuant to such tender
offer or exchange offer.
In the event that we pay a dividend or make a distribution to
all or substantially all holders of our common stock consisting
of capital stock of, or similar equity interests in, a
subsidiary or other business unit of ours, the conversion rate
will be adjusted, unless we make an equivalent distribution to
holders of 2029 notes, based on the market value of the
securities so distributed relative to the market value of our
common stock, in each case based on the average closing prices
of those securities for the ten trading days commencing on and
including the fifth trading day after the date on which
ex-dividend trading commences for such dividend or
distribution on the New York Stock Exchange, the Nasdaq Global
Market or such other national or regional exchange or market on
which the securities are then listed or quoted.
In the case of the following events (each, a business
combination):
|
|
|
|
|
any recapitalization, reclassification or change of our common
stock, other than (a) a change in par value, or from par
value to no par value, or from no par value to par value, or
(b) as a result of a subdivision or combination;
|
|
|
|
any consolidation, merger or combination involving us;
|
|
|
|
any sale, lease or other transfer to a third party of the
consolidated assets of us and our subsidiaries substantially as
an entirety; or
|
|
|
|
any statutory share exchange;
|
in each case as a result of which holders of our common stock
are entitled to receive stock, other securities, other property
or assets (including cash or any combination thereof) with
respect to or in exchange for our common stock, the holders of
the 2029 notes then outstanding will be entitled thereafter to
convert those 2029 notes into the kind and amount of shares of
stock, other securities or other property or assets (including
cash or any combination thereof) (reference
property) which they would have owned or been entitled to
receive upon such business combination had such 2029 notes been
converted into our common stock immediately prior to such
business combination, except that a holder will not receive any
additional cash or shares of common stock that would have
resulted from the adjustment to the conversion rate as described
under Determination of Make Whole
Premium if such holder does not convert its 2029 notes
in connection with the relevant fundamental change
(as defined below under Purchase of 2029 Notes
by Us for Cash at the Option of Holders Upon a Fundamental
Change).
If the transaction causes our common stock to be converted into
the right to receive more than a single type of consideration
(determined based in part upon any form of stockholder
election), the reference property into which the 2029 notes will
become convertible will be deemed to be the kind and amount of
consideration elected to be received by a majority of our common
stock voted for such an election (if electing between two types
of consideration) or a plurality of our common stock voted for
such an election (if electing between more than two types of
consideration), as the case may be. In all cases the provisions
above under Settlement Upon Conversion
relating to the satisfaction of our conversion obligation shall
continue to apply with respect to the calculation of the
consideration deliverable upon settlement of a conversion, with
the daily conversion value, daily share amount and the daily
VWAP based on the reference property; provided, however, that if
the holders of our common stock receive only cash in such
transaction, the consideration deliverable upon settlement of a
conversion shall equal the conversion rate in effect on the
conversion date multiplied by the price paid per share of common
stock in such transaction and settlement will occur on the third
trading day following the conversion date. We may not become a
party to any such transaction unless its terms are consistent
with the foregoing in all material respects.
In addition, the 2029 note indenture provides that upon
conversion of the 2029 notes, the holders of such 2029 notes
will receive, to the extent that we deliver shares of common
stock upon such conversion, the rights related to such common
stock pursuant to any future stockholder rights plan, whether or
not such rights have
89
separated from the common stock at the time of such conversion.
However, there will not be any adjustment to the conversion
privilege or conversion rate as a result of:
|
|
|
|
|
the issuance of such rights;
|
|
|
|
the distribution of separate certificates representing such
rights;
|
|
|
|
the exercise or redemption of such rights in accordance with any
rights plan; or
|
|
|
|
the termination or invalidation of such rights.
|
Notwithstanding the foregoing, if a holder of 2029 notes
exercising its right of conversion after the distribution of
rights pursuant to any rights plan in effect at the time of such
conversion is not entitled to receive the rights that would
otherwise be attributable, but for the date of conversion, to
the shares of common stock to be received upon such conversion,
if any, the conversion rate will be adjusted as though the
rights were being distributed to holders of common stock on the
date the rights become separable from such stock. If such an
adjustment is made and such rights are later redeemed,
invalidated or terminated, then a corresponding reversing
adjustment will be made to the conversion rate on an equitable
basis.
The 2029 note indenture permits us to increase the conversion
rate, to the extent permitted by law and subject to stockholder
approval requirements, if any, of any relevant national
securities exchange or automated dealer quotation system, for
any period of at least 20 days. In that case we will give
at least 15 days notice of such increase. We may also
make such increase in the conversion rate, in addition to those
set forth above, as our board of directors deems advisable to
avoid or diminish any income tax to holders of our common stock
resulting from any dividend or distribution of stock (or rights
to acquire stock) or from any event treated as such for
U.S. federal income tax purposes.
For U.S. federal income tax purposes, adjustments to the
conversion rate, or failures to make certain adjustments, that
have the effect of increasing the beneficial owners
proportionate interests in our assets or earnings may in some
circumstances result in a taxable deemed distribution to the
beneficial owners. See Material U.S. Federal Income
Tax Considerations.
We will not be required to adjust the conversion rate unless the
adjustment would result in a change of at least 1% of the
conversion rate. However, we will carry forward any adjustments
that are less than 1% of the conversion rate and take them into
account when determining subsequent adjustments, and make such
carried-forward adjustments, regardless of whether the aggregate
adjustment is less than 1%, (a) five business days prior to
the maturity of the 2029 notes (whether at stated maturity or
otherwise) or (b) five business days prior to the
redemption date or repurchase date, unless such adjustment has
already been made.
We will not make any adjustments if holders of 2029 notes are
permitted to participate without converting their 2029 notes in
the transactions described above in clauses (1) through
(6) that would otherwise require adjustment to the
conversion rate. Except as stated above, the conversion rate
will not be adjusted for the issuance of our common stock or any
securities convertible into or exchangeable for our common stock
or carrying the right to purchase our common stock or any such
security.
Upon determining that the holders are or will be entitled to
convert their 2029 notes in accordance with these provisions, we
will promptly issue a press release or otherwise publicly
disclose this information and use our reasonable efforts to post
such information on our website.
Determination
of Make Whole Premium
If a transaction described in clauses (1), (2) or
(4) of the definition of change of control (as set forth
under Purchase of 2029 Notes by Us for Cash at
the Option of Holders Upon a Fundamental Change) (each a
make whole transaction) occurs on or prior to
November 15, 2029, and a holder elects to convert its 2029
notes in connection with such transaction, we will pay a make
whole premium by increasing the applicable conversion rate for
the 2029 notes surrendered for conversion if and as required
below by a number of additional shares of common stock equal to
a percentage of the applicable conversion rate (the
additional shares), as described below. A conversion
of 2029 notes will be deemed for these purposes to be in
90
connection with such a transaction if the notice of
conversion is received by the conversion agent from and
including the date that is 10 trading days prior to the
effective date of such transaction and prior to and including
the close of business on the business day prior to the
fundamental change purchase date of such transaction as
described under Purchase of 2029 Notes by Us
for Cash at the Option of Holders Upon a Fundamental
Change. Any make whole premium will have the effect of
increasing the amount of any cash, securities or other assets
otherwise due to the holders of 2029 notes upon conversion.
Any increase in the applicable conversion rate will be
determined by reference to the table below and is based on the
date on which such make whole transaction becomes effective (the
effective date) and the price (the stock
price) paid, or deemed paid, per share of our common stock
in such transaction, subject to adjustment as described below.
If the holders of our common stock receive only cash in the make
whole transaction, the stock price shall be the cash amount paid
per share of common stock. Otherwise, the stock price shall be
the average of the closing prices of our common stock for each
of the ten consecutive trading days prior to, but excluding, the
effective date.
The stock prices described in the first row of the table (i.e.,
the column headers) and clauses (2) and (3) in the
second succeeding paragraph below, will be adjusted as of any
date on which the conversion rate of the 2029 notes is adjusted
as set forth under Conversion Rate Adjustments
and Business Combinations. The adjusted stock prices will
equal the stock prices applicable immediately prior to such
adjustment multiplied by a fraction, the numerator of which is
the conversion rate immediately prior to the adjustment giving
rise to the stock price adjustment and the denominator of which
is the conversion rate as so adjusted. Our obligation to
increase the conversion rate by the additional shares will be
subject to adjustment in the same manner as the conversion rate
as set forth under Conversion Rate Adjustments
and Business Combinations.
The following table sets forth the hypothetical stock price and
the percentage increase to the applicable conversion rate per
$1,000 principal amount of 2029 notes based on the stock price
as a percentage of the reference price, which is the
greater of (i) the average VWAP and (ii) (A) the
minimum conversion price divided by (B) 122.5%. The
definitive initial stock prices will be inserted in the 2029
note indenture.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Price as a Percentage of the Reference Price
|
|
Date
|
|
100%
|
|
|
115%
|
|
|
125%
|
|
|
130%
|
|
|
145%
|
|
|
160%
|
|
|
175%
|
|
|
200%
|
|
|
225%
|
|
|
250%
|
|
|
300%
|
|
|
350%
|
|
|
400%
|
|
|
450%
|
|
|
500%
|
|
|
600%
|
|
|
700%
|
|
|
Settlement Date
|
|
|
22.5
|
%
|
|
|
22.5
|
%
|
|
|
22.5
|
%
|
|
|
22.5
|
%
|
|
|
20.1
|
%
|
|
|
18.0
|
%
|
|
|
16.2
|
%
|
|
|
13.8
|
%
|
|
|
12.0
|
%
|
|
|
10.6
|
%
|
|
|
8.4
|
%
|
|
|
6.9
|
%
|
|
|
5.8
|
%
|
|
|
4.9
|
%
|
|
|
4.2
|
%
|
|
|
3.2
|
%
|
|
|
2.4
|
%
|
November 15, 2010
|
|
|
22.5
|
%
|
|
|
22.5
|
%
|
|
|
22.0
|
%
|
|
|
21.1
|
%
|
|
|
18.6
|
%
|
|
|
16.6
|
%
|
|
|
14.9
|
%
|
|
|
12.8
|
%
|
|
|
11.1
|
%
|
|
|
9.8
|
%
|
|
|
7.8
|
%
|
|
|
6.4
|
%
|
|
|
5.3
|
%
|
|
|
4.5
|
%
|
|
|
3.9
|
%
|
|
|
2.9
|
%
|
|
|
2.2
|
%
|
November 15, 2011
|
|
|
22.5
|
%
|
|
|
22.5
|
%
|
|
|
20.4
|
%
|
|
|
19.5
|
%
|
|
|
17.2
|
%
|
|
|
15.3
|
%
|
|
|
13.8
|
%
|
|
|
11.8
|
%
|
|
|
10.2
|
%
|
|
|
9.0
|
%
|
|
|
7.2
|
%
|
|
|
5.9
|
%
|
|
|
4.9
|
%
|
|
|
4.2
|
%
|
|
|
3.6
|
%
|
|
|
2.7
|
%
|
|
|
2.1
|
%
|
November 15, 2012
|
|
|
22.5
|
%
|
|
|
20.8
|
%
|
|
|
18.9
|
%
|
|
|
18.0
|
%
|
|
|
15.8
|
%
|
|
|
14.1
|
%
|
|
|
12.7
|
%
|
|
|
10.8
|
%
|
|
|
9.4
|
%
|
|
|
8.3
|
%
|
|
|
6.6
|
%
|
|
|
5.4
|
%
|
|
|
4.5
|
%
|
|
|
3.8
|
%
|
|
|
3.3
|
%
|
|
|
2.5
|
%
|
|
|
1.9
|
%
|
November 15, 2013
|
|
|
22.5
|
%
|
|
|
19.1
|
%
|
|
|
17.3
|
%
|
|
|
16.5
|
%
|
|
|
14.5
|
%
|
|
|
12.9
|
%
|
|
|
11.6
|
%
|
|
|
9.9
|
%
|
|
|
8.6
|
%
|
|
|
7.5
|
%
|
|
|
6.0
|
%
|
|
|
4.9
|
%
|
|
|
4.1
|
%
|
|
|
3.5
|
%
|
|
|
3.0
|
%
|
|
|
2.3
|
%
|
|
|
1.8
|
%
|
November 15, 2014
|
|
|
22.5
|
%
|
|
|
17.3
|
%
|
|
|
15.6
|
%
|
|
|
14.9
|
%
|
|
|
13.0
|
%
|
|
|
11.5
|
%
|
|
|
10.3
|
%
|
|
|
8.8
|
%
|
|
|
7.6
|
%
|
|
|
6.7
|
%
|
|
|
5.4
|
%
|
|
|
4.4
|
%
|
|
|
3.7
|
%
|
|
|
3.1
|
%
|
|
|
2.7
|
%
|
|
|
2.1
|
%
|
|
|
1.6
|
%
|
November 15, 2015
|
|
|
22.5
|
%
|
|
|
15.3
|
%
|
|
|
13.7
|
%
|
|
|
13.0
|
%
|
|
|
11.3
|
%
|
|
|
10.0
|
%
|
|
|
8.9
|
%
|
|
|
7.5
|
%
|
|
|
6.5
|
%
|
|
|
5.7
|
%
|
|
|
4.6
|
%
|
|
|
3.8
|
%
|
|
|
3.2
|
%
|
|
|
2.7
|
%
|
|
|
2.3
|
%
|
|
|
1.8
|
%
|
|
|
1.4
|
%
|
November 15, 2016
|
|
|
22.5
|
%
|
|
|
13.2
|
%
|
|
|
11.6
|
%
|
|
|
11.0
|
%
|
|
|
9.4
|
%
|
|
|
8.2
|
%
|
|
|
7.3
|
%
|
|
|
6.1
|
%
|
|
|
5.2
|
%
|
|
|
4.6
|
%
|
|
|
3.7
|
%
|
|
|
3.0
|
%
|
|
|
2.5
|
%
|
|
|
2.2
|
%
|
|
|
1.9
|
%
|
|
|
1.4
|
%
|
|
|
1.1
|
%
|
November 15, 2017
|
|
|
22.5
|
%
|
|
|
10.8
|
%
|
|
|
9.3
|
%
|
|
|
8.7
|
%
|
|
|
7.3
|
%
|
|
|
6.2
|
%
|
|
|
5.4
|
%
|
|
|
4.4
|
%
|
|
|
3.8
|
%
|
|
|
3.3
|
%
|
|
|
2.6
|
%
|
|
|
2.1
|
%
|
|
|
1.8
|
%
|
|
|
1.5
|
%
|
|
|
1.3
|
%
|
|
|
1.0
|
%
|
|
|
0.8
|
%
|
November 15, 2018
|
|
|
22.5
|
%
|
|
|
8.3
|
%
|
|
|
6.8
|
%
|
|
|
6.1
|
%
|
|
|
4.8
|
%
|
|
|
3.8
|
%
|
|
|
3.1
|
%
|
|
|
2.4
|
%
|
|
|
2.0
|
%
|
|
|
1.7
|
%
|
|
|
1.4
|
%
|
|
|
1.1
|
%
|
|
|
0.9
|
%
|
|
|
0.8
|
%
|
|
|
0.7
|
%
|
|
|
0.5
|
%
|
|
|
0.4
|
%
|
November 15, 2019
|
|
|
22.5
|
%
|
|
|
6.1
|
%
|
|
|
4.7
|
%
|
|
|
4.1
|
%
|
|
|
2.4
|
%
|
|
|
1.2
|
%
|
|
|
0.3
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
November 15, 2024
|
|
|
22.5
|
%
|
|
|
7.6
|
%
|
|
|
5.7
|
%
|
|
|
4.9
|
%
|
|
|
2.8
|
%
|
|
|
1.4
|
%
|
|
|
0.4
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
November 15, 2029
|
|
|
22.5
|
%
|
|
|
6.5
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
|
|
0.0
|
%
|
The exact stock price as a percentage of the reference price and
effective dates may not be set forth on the table, in which case:
(1) if the stock price is between two stock prices
described in the table or the effective date is between two
dates on the table, the percentage increase will be determined
by the trustee by straight-line interpolation between the
percentage increases set forth for the higher and lower stock
price amounts and the two dates, as applicable, based on a
360 day year;
(2) if the stock price is in excess of 700% of the
reference price (subject to adjustment as described above), no
additional shares will be added to the conversion rate; and
(3) if the stock price is less than the reference price
(subject to adjustment as described above), no additional shares
will be added to the conversion rate.
91
Notwithstanding the foregoing, in no event will the conversion
rate as adjusted upon a make whole transaction exceed a number
equal to 1,000 divided by the reference price, subject to
adjustment as described under Conversion Rate
Adjustments and Business Combinations.
Any conversion that entitles the converting holder to an
adjustment to the conversion rate as described in this section
shall be settled as described under Settlement
Upon Conversion above.
Our obligation to increase the conversion rate could be
considered a penalty, in which case the enforceability thereof
would be subject to general principles of reasonableness of
economic remedies and may not be enforceable.
Optional
Redemption
No sinking fund is provided for the 2029 notes. Except as
described below with respect to a tax triggering event, prior to
November 15, 2019, the 2029 notes will not be redeemable at
our option. On or after November 15, 2019, we may redeem
for cash all or part of the 2029 notes if the closing price of
our common stock has been at least 150% of the conversion price
then in effect for at least 20 trading days during the 30
consecutive trading day period immediately preceding the date on
which we provide notice of redemption. The redemption price will
equal 100% of the principal amount of the 2029 notes being
redeemed, plus accrued and unpaid interest (including any
contingent and additional interest, if any), to but excluding
the redemption date.
On or prior to November 15, 2010, we may redeem the 2029
notes in whole or in part for cash if any tax triggering event
has occurred. The redemption price for any such redemption will
be equal to (i) 101.5% of the principal amount of the 2029
notes being redeemed, plus (ii) accrued and unpaid
interest, including any contingent
and/or
additional interest, to but excluding the redemption date, plus
(iii) if the redemption conversion value of the 2029 notes
being redeemed exceeds their initial conversion value, 95% of
the amount determined by subtracting the initial conversion
value of such 2029 notes from their redemption conversion value.
We will give notice of redemption not less than 20 nor more than
60 days before the redemption date by mail to the trustee,
the paying agent and each holder of 2029 notes. Accrued and
unpaid interest (including contingent and additional interest,
if any) payable upon a redemption will be paid to the person to
whom principal is payable, unless the redemption date is after a
record date and prior to the corresponding interest payment
date, in which case accrued and unpaid interest (including
contingent and additional interest, if any) to, but excluding,
such redemption date shall be paid to the record holder as of
the record date.
We may not redeem any 2029 notes unless all accrued and unpaid
interest thereon, including any contingent or additional
interest, has been or is simultaneously paid for all semi-annual
periods or portions thereof terminating prior to the redemption
date.
If we decide to redeem fewer than all of the outstanding 2029
notes, the trustee will select the 2029 notes to be redeemed (in
principal amounts of $1,000 or integral multiples thereof) by
lot, or on a pro rata basis or by another method the trustee
considers fair and appropriate.
If the trustee selects a portion of a holders 2029 notes
for partial redemption and the holder converts a portion of such
2029 notes, the converted portion will be deemed to be from the
portion selected for redemption.
In the event of any redemption in part, we shall not be required
to (i) issue, register the transfer of or exchange any 2029
notes during a period beginning at the opening of business
15 days before any selection for redemption of 2029 notes
and ending at the close of business on the earliest date on
which the relevant notice of redemption is mailed or
(ii) register the transfer of or exchange any 2029 notes so
selected for redemption, in whole or in part, except the
unredeemed portion of any 2029 notes being redeemed in part.
Tax triggering event means (i) the enactment of
U.S. federal legislation, promulgation of Treasury
regulations, issuance of a published ruling, notice,
announcement or equivalent form of guidance by the Treasury or
the Internal Revenue Service, or the issuance of a judicial
decision, in each case after the
92
settlement date, if we receive an opinion of our outside counsel
to the effect that, any such authority will have the effect of
lowering the comparable yield or delaying or otherwise limiting
the current deductibility of interest or original issue discount
with respect to the 2029 notes, or (ii) any closing
agreement or other final settlement entered into by us and the
U.S. Treasury or Internal Revenue Service which agreement
or settlement has the effect of lowering the comparable yield or
delaying or otherwise limiting the current deductibility of
interest or original issue discount with respect to the 2029
notes, provided that we determine that the reduction, delay or
limit on our current deductibility of interest or original issue
discount with respect to the 2029 notes as a result of the
conditions described in clause (i) or (ii) of this
definition is material.
Redemption conversion value means the product of
(i) the conversion rate in effect on the redemption date
and (ii) the average of the daily VWAP of our common stock
for the five consecutive trading days ending on the trading day
immediately preceding the redemption date.
Initial conversion value means the product of
(i) the initial conversion rate, prior to adjustments as
described under Conversion Rights Conversion
Rate Adjustments and Business Combinations and
(ii) the greater of (a) the average VWAP and
(b) the Minimum Conversion Price, in either case divided by
1.225.
Purchase
of 2029 Notes by Us for Cash at the Option of Holders Upon a
Fundamental Change
In the event of a fundamental change, as defined below, each
holder of 2029 notes will have the right to require us to
purchase for cash all of such holders 2029 notes, or any
portion thereof in integral multiples of $1,000, on the date,
referred as to the fundamental change purchase date in this
prospectus, that is 30 business days after the later of the
effective date of the fundamental change and the date we give
notice of the fundamental change, at a purchase price equal to
100% of the principal amount of the 2029 notes to be purchased,
plus accrued and unpaid interest (including contingent and
additional interest), if any, to, but excluding, the fundamental
change purchase date. If such fundamental change purchase date
is after a record date but prior to an interest payment date,
however, then the interest (including contingent and additional
interest, if any) payable to, but excluding, such interest
payment date will be paid to the holder of record of the 2029
notes on the relevant regular record date.
Within 30 days after we know or reasonably should know of
the occurrence of a fundamental change, we are required to give
notice to all holders of record of 2029 notes, as provided in
the 2029 note indenture, stating among other things, the
occurrence of a fundamental change and of their resulting
purchase right, referred to as an issuer fundamental change
notice in this prospectus. We must also deliver a copy of our
notice to the trustee and the paying agent.
In order to exercise the purchase right upon a fundamental
change, a holder must deliver by the close of business on the
business day prior to the fundamental change purchase date a
fundamental change purchase notice stating, among
other things:
|
|
|
|
|
if the 2029 notes are in certificated form, the certificate
numbers of the holders 2029 notes to be delivered for
purchase;
|
|
|
|
the portion of the principal amount of 2029 notes to be
purchased, which must be $1,000 or an integral multiple of
$1,000; and
|
|
|
|
that the 2029 notes are to be purchased by us pursuant to the
applicable provisions of the 2029 notes and the 2029 note
indenture.
|
If the 2029 notes are not in certificated form, a fundamental
change purchase notice must comply with appropriate DTC
procedures.
A holder may withdraw any fundamental change purchase notice by
a written notice of withdrawal delivered to the paying agent
prior to the close of business on the business day prior to the
fundamental change purchase date. If a holder of 2029 notes
delivers a fundamental change purchase notice, it may not
93
thereafter surrender those 2029 notes for conversion unless the
fundamental change purchase notice is withdrawn. The notice of
withdrawal shall state:
|
|
|
|
|
the principal amount being withdrawn, which must be $1,000 or an
integral multiple of $1,000;
|
|
|
|
if the 2029 notes are in certificated form, the certificate
numbers of the 2029 notes being withdrawn in whole or in
part; and
|
|
|
|
the principal amount, if any, of the 2029 notes that remains
subject to the fundamental change purchase notice, which amount
must be a principal amount of $1,000 or an integral multiple
thereof.
|
If the 2029 notes are not in certificated form, a withdrawal
notice must comply with appropriate DTC procedures.
In connection with any purchase offer pursuant to a fundamental
change purchase notice, we will, if required:
|
|
|
|
|
comply with the provisions of the tender offer rules under the
Securities Exchange Act of 1934, as amended, referred to as the
Exchange Act in this prospectus, that may then be
applicable; and
|
|
|
|
file a Schedule TO or any other required schedule under the
Exchange Act.
|
Payment of the fundamental change purchase price for a 2029 note
for which a fundamental change purchase notice has been
delivered by a holder and not validly withdrawn is conditioned
upon delivery of the 2029 note, together with necessary
endorsement, to the paying agent at any time after delivery of
the fundamental change purchase notice. Payment of the
fundamental change purchase price for the 2029 note will be made
promptly following the later of the fundamental change purchase
date or the time of delivery of the 2029 note, together with
necessary endorsements.
If the paying agent holds funds sufficient to pay the
fundamental change purchase price of the 2029 note on, or the
business day following, the fundamental change purchase date in
accordance with the terms of the 2029 note indenture, then,
immediately after the fundamental change purchase date, whether
or not the 2029 note is delivered to the paying agent:
|
|
|
|
|
such 2029 note will cease to be outstanding;
|
|
|
|
interest (including contingent and additional interest, if any)
on such 2029 note will cease to accrue; and
|
|
|
|
all rights of the holder of such 2029 note will terminate except
the right to receive the fundamental change purchase price upon
delivery of the 2029 note.
|
A fundamental change will be deemed to occur upon a
change of control or a termination of trading, each as defined
below.
A change of control will be deemed to have occurred
at such time after the original issuance of the 2029 notes when
the following has occurred (whether or not approved by our board
of directors):
(1) any person or group (as such
terms are used in Sections 13(d) and 14(d) of the Exchange
Act) is or becomes the beneficial owner (as defined
in
Rules 13d-3
and
13d-5
under the Exchange Act, except that a person shall be deemed to
have beneficial ownership of all shares that such person has the
right to acquire, whether such right is exercisable immediately
or only after the passage of time), directly or indirectly, of
voting stock representing 50% or more of the total voting power
of all our outstanding voting stock; or
(2) we consolidate with, or merge with or into, another
person (other than a wholly owned Restricted Subsidiary (as
defined below)) or we
and/or
one
or more of our Restricted Subsidiaries sell, assign, convey,
transfer, lease or otherwise dispose of all or substantially all
of our and the Restricted Subsidiaries assets (determined
on a consolidated basis) to any person (other than us or a
wholly owned Restricted Subsidiary), other than any such
transaction where immediately after such transaction the person
or persons that beneficially owned (as defined in
Rules 13d-3
and
13d-5
under the Exchange
94
Act) immediately prior to such transaction, directly or
indirectly, voting stock representing a majority of the total
voting power of all of our outstanding voting stock,
beneficially own or owns (as so determined),
directly or indirectly, voting stock representing a majority of
the total voting power of the outstanding voting stock of the
surviving or transferee person; or
(3) during any consecutive two-year period, the continuing
directors cease for any reason to constitute a majority of our
board of directors; or
(4) the adoption of a plan of liquidation or dissolution of
the company.
For purposes of this definition, continuing
directors means, as of any date of determination, any
member of our board of directors who was (a) a member of
such board of directors on the date of the 2029 notes indenture
or (b) nominated for election or elected to such board of
directors with the approval of a majority of the continuing
directors who were members of such board at the time of such
nomination or election.
Notwithstanding the foregoing, it will not constitute a change
of control if 100% of the consideration for our common stock
(excluding cash payments for fractional shares and cash payments
made in respect of dissenters appraisal rights) in the
transaction or transactions constituting the change of control
consists of common stock and any associated rights listed on a
United States national securities exchange or quoted on a
national automated dealer quotation system, or which will be so
traded or quoted when issued or exchanged in connection with the
change of control, and as a result of such transaction or
transactions the 2029 notes become convertible solely into such
common stock.
A termination of trading is deemed to occur if our
common stock (or other common stock into which the 2029 notes
are then convertible) is not listed for trading on a United
States national securities exchange, quoted on a United States
national automated dealer quotation system, or approved for
trading on an established automated
over-the-counter
trading market in the United States.
Clause (2) of the definition of change of control includes
a phrase relating to the conveyance, transfer, lease, or other
disposition of all or substantially all of our
assets. There is no precise established definition of the phrase
substantially all under applicable law. Accordingly,
the ability of a holder of 2029 notes to require us to
repurchase such 2029 notes as a result of a conveyance,
transfer, lease, or other disposition of less than all of our
assets may be uncertain.
In some circumstances, the fundamental change repurchase feature
of the 2029 notes may make it more difficult to takeover, or
discourage a takeover of, us and thus the removal of incumbent
management. The fundamental change repurchase feature, however,
is not the result of managements knowledge of any specific
effort to accumulate shares of common stock or to obtain control
of us by means of a merger, tender offer, solicitation or
otherwise, or part of a plan by management to adopt a series of
anti-takeover provisions. Instead, the fundamental change
repurchase feature is the result of negotiations between us and
the initial purchaser of the 2029 notes.
We may, to the extent permitted by applicable law, at any time
purchase the 2029 notes in the open market or by tender at any
price or by private agreement. Any 2029 note purchased by us
will be surrendered to the trustee for cancellation. Any 2029
notes surrendered to the trustee may not be reissued or resold
and will be canceled promptly.
The foregoing provisions would not necessarily protect holders
of the 2029 notes if highly leveraged or other transactions
involving us occur that may materially adversely affect holders.
Our ability to repurchase 2029 notes upon the occurrence of a
fundamental change is subject to important limitations. We
cannot assure holders that we would have the financial
resources, or would be able to arrange financing, to pay the
fundamental change purchase price for all the 2029 notes that
might be delivered by holders of 2029 notes seeking to exercise
the fundamental change purchase right. Furthermore, payment of
the fundamental change purchase price may violate or may be
limited by the terms of our existing or future indebtedness. Any
failure by us to repurchase the 2029 notes when required would
result in an event of default under the 2029 note indenture. Any
such default may, in turn, cause a default under other
indebtedness. See Risk Factors Risks
95
Related to the 2029 Notes We may be unable to
purchase our 2012 notes, our 2013 notes, our 2015 notes, our
2017 notes or the 2029 notes upon a fundamental change, which
would cause defaults under the 2029 notes and our other debt
agreements.
Events of
Default and Acceleration
The following will be events of default under the 2029 note
indenture:
|
|
|
|
|
default in the payment of any principal amount, redemption price
or fundamental change purchase price, including any make whole
premium, due and payable, whether at the final maturity date,
upon redemption, purchase, acceleration or otherwise;
|
|
|
|
default in the payment of any interest (including contingent or
additional interest, if any) under the 2029 notes, which default
continues for 60 days;
|
|
|
|
default in the delivery when due of all cash and any shares of
common stock payable upon conversion with respect to the 2029
notes, which default continues for 15 days;
|
|
|
|
failure to provide an issuer fundamental change notice within
the time required to provide such notice;
|
|
|
|
failure to comply with any of our other agreements in the 2029
notes or the 2029 note indenture upon our receipt of notice of
such default from the trustee or from holders of not less than
25% in aggregate principal amount of the 2029 notes then
outstanding, and the failure to cure (or obtain a waiver of)
such default within 60 days after receipt of such notice;
|
|
|
|
a default or defaults under the terms of one or more instruments
evidencing or securing indebtedness of the company or any of the
Restricted Subsidiaries having an outstanding principal amount
of greater than $50,000,000 individually or in the aggregate,
which default (A) is caused by a failure to pay at final
maturity principal on such indebtedness within the applicable
express grace period, (B) results in the acceleration of
such indebtedness prior to its express final maturity or
(C) results in the commencement of judicial proceedings to
foreclose upon, or to exercise remedies under applicable law or
applicable security documents to take ownership of, the assets
securing such indebtedness; and
|
|
|
|
certain events of bankruptcy, insolvency or reorganization
affecting us or any of our significant subsidiaries.
|
Restricted Subsidiary has the meaning ascribed
thereto in the indentures governing the senior notes and
includes any subsidiary of the company (including any subsidiary
formed or acquired after the date of the 2029 note indenture)
which has not been designated as an Unrestricted
Subsidiary under the terms of such indentures governing
the senior notes. If at any time the senior notes are not
outstanding, all references to Restricted Subsidiary
shall be changed to and deemed to be a reference to
subsidiary.
If an event of default shall have happened and be continuing,
either the trustee or the holders of not less than 25% in
aggregate principal amount of the 2029 notes then outstanding
may declare the principal of the 2029 notes and any accrued and
unpaid interest through the date of such declaration immediately
due and payable. Upon any such declaration, such principal,
premium, if any, and interest (including contingent and
additional interest, if any) shall become due and payable
immediately. In the case of certain events of bankruptcy or
insolvency relating to us or any significant subsidiary, the
principal amount of the 2029 notes together with any accrued
interest (including contingent and additional interest, if any)
through the occurrence of such event shall automatically become
and be immediately due and payable. Any declaration with respect
to the 2029 notes may be rescinded or annulled by the holders of
a majority in aggregate principal amount of the outstanding 2029
notes if all defaults and events of default, other than the
nonpayment of accelerated principal and interest (including
contingent and additional interest, if any), have been cured or
waived as provided in the 2029 note indenture, and certain other
conditions specified in the 2029 note indenture are satisfied.
Notwithstanding the foregoing, the 2029 note indenture will
provide that, at our election, the sole remedy for any event of
default from time to time relating to the failure to comply with
the reporting obligations in
96
the indenture, which are described below under the caption
Reports, and for any failure to comply
with the requirements of Section 314(a)(1) of the
Trust Indenture Act of 1939, as amended (the
Trust Indenture Act) (which also relate to the
provision of reports), will, at our option, for the
365 days after the occurrence of such an event of default
consist exclusively of the right to receive additional interest
on the 2029 notes at an annual rate equal to 0.50% of the
principal amount of the 2029 notes during the period in which
the additional interest will accrue as described below. In the
event we do not elect to pay the additional interest upon an
event of default in accordance with this paragraph, the 2029
notes will be subject to acceleration as provided above. If we
so elect to pay additional interest in these circumstances, we
will provide prompt written notice to the trustee, and we will
promptly disseminate a press release regarding our election to
pay additional interest through
Business Wire
(or if
Business Wire
is no longer available, a comparable wire
service), following our receipt of the notice of default
specified above relating to the failure to comply with the
reporting obligations in the indenture. This additional interest
will be payable in the same manner as regular interest as
accrued during the period that such event of default is
continuing, and shall be paid on the next regular interest
payment date. The additional interest will accrue on all
outstanding 2029 notes from and including the date on which an
event of default relating to a failure to comply with the
reporting obligations in the indenture first occurs to but not
including the 365th day thereafter (or such earlier date on
which the event of default relating to the reporting obligations
shall have been cured or waived). If the event of default is
cured or waived prior to such 365th day, such additional
interest will cease to accrue on the date of such cure or
waiver. On such 365th day (if the event of default is
continuing on such 365th day), such additional interest will
cease to accrue and the 2029 notes will be subject to
acceleration as provided above. The provisions of the indenture
described in this paragraph will not affect the rights of
holders of 2029 notes in the event of the occurrence of any
other event of default.
Reports
We shall:
(1) file with the trustee, within 15 days after we are
required to file the same with the SEC, after giving effect to
any grace period provided by Rule 12b-25 promulgated under
the Exchange Act, copies of the annual reports and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may from time to
time by rules and regulations prescribe) which we are required
to file with the SEC pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if we are not
required to file information, documents or reports pursuant to
either of said Sections, then we shall file with the trustee and
the SEC, in accordance with rules and regulations prescribed
from time to time by the SEC, such of the supplementary and
periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in
such rules and regulations;
(2) file with the trustee and the SEC, in accordance with
rules and regulations prescribed from time to time by the SEC,
such additional information, documents and reports with respect
to compliance by us with the conditions and covenants of the
indenture as may be required by such rules and regulations;
(3) transmit by mail, to all holders of 2029 notes, as
their names and addresses appear in the register of the
registrar, within 30 days after the filing thereof with the
trustee, such summaries of any information, documents and
reports required to be filed by us pursuant to clauses (1)
and (2) above as may be required by rules and regulations
prescribed from time to time by the SEC; and
(4) comply with the other provisions of Section 314(a)
of the Trust Indenture Act.
All information, documents and reports described above and filed
with the SEC pursuant to its Electronic Data Gathering,
Analysis, and Retrieval system or any successor shall be deemed
to be filed with the trustee and transmitted by mail to all
holders of 2029 notes, as applicable, as of the time they are
filed via such system.
97
Consolidation,
Mergers or Sales of Assets
We shall not consolidate with or merge with or into (whether or
not we are the surviving person) any other entity and we shall
not, and shall not cause or permit any Restricted Subsidiary to,
sell, convey, assign, transfer, lease or otherwise dispose of
all or substantially all of our and the Restricted
Subsidiaries assets (determined on a consolidated basis
for us and the Restricted Subsidiaries) to any person in a
single transaction or series of related transactions, unless:
(1) either (A) we shall be the surviving person or
(B) the surviving person (if other than us) shall be a
corporation or limited liability company organized and validly
existing under the laws of the United States of America or any
State thereof or the District of Columbia, and shall, in any
such case, expressly assume by a supplemental indenture, the due
and punctual payment of the principal of, premium, if any, and
interest (including contingent and additional interest, if any)
on all the 2029 notes and the performance and observance of
every covenant of the 2029 note indenture to be performed or
observed on the part of the company; and
(2) immediately thereafter, on a pro forma basis after
giving effect to such transaction, no event of default shall
have occurred and be continuing.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series
of transactions) of all or substantially all the assets of one
or more subsidiaries, the capital stock of which constitute all
or substantially all of our assets, shall be deemed to be the
transfer of all or substantially all our assets.
There is no precise established definition of the phrase
substantially all under applicable law. Accordingly,
there may be uncertainty as to whether the provisions above
would apply to a conveyance, transfer, lease or other
disposition of less than all of our assets.
Upon the assumption of our obligations by such corporation in
such circumstances, subject to certain exceptions, we shall be
discharged from all obligations under the 2029 notes and the
2029 note indenture. Although such transactions are permitted
under the 2029 note indenture, certain of the foregoing
transactions occurring could constitute a fundamental change of
the company, permitting each holder to require us to purchase
the 2029 notes of such holder or to convert their 2029 notes
each as described above. An assumption of our obligations under
the 2029 notes and the 2029 note indenture by such corporation
might be deemed for U.S. federal income tax purposes to be
an exchange of the 2029 notes for new securities by the
beneficial owners thereof, resulting in recognition of gain or
loss for such purposes and possibly other adverse tax
consequences to the beneficial owner. You should consult your
own tax advisors regarding the tax consequences of such an
assumption.
Modification
and Waiver
We and the trustee may amend the 2029 note indenture or the 2029
notes with the consent of the holders of not less than a
majority in aggregate principal amount of the 2029 notes then
outstanding. However, the consent of the holder of each
outstanding 2029 note affected is required to:
|
|
|
|
|
alter the manner of calculation or rate of accrual of interest
(including contingent and additional interest) on the 2029 note,
reduce the rate of interest (including contingent and additional
interest) on the 2029 note, or change the time of payment of any
installment of interest (including contingent and additional
interest, if any);
|
|
|
|
change the stated maturity of the 2029 note;
|
|
|
|
change the redemption provisions applicable to the 2029 notes;
|
|
|
|
make the 2029 note payable in money or securities other than
that stated in the 2029 note;
|
|
|
|
reduce the principal amount, redemption price or fundamental
change purchase price (including any make whole premium payable)
with respect to the 2029 note;
|
98
|
|
|
|
|
make any change that adversely affects the rights of a holder to
convert the 2029 note in any material respect;
|
|
|
|
make any change that adversely affects the right to require us
to purchase the 2029 note in any material respect;
|
|
|
|
change the provisions in the 2029 note indenture that relate to
modifying or amending the 2029 note indenture or waiving any
past defaults in the payment of principal, premium, if any, or
interest (including contingent and additional interest, if any)
on the 2029 notes;
|
|
|
|
change our obligation to pay contingent interest or additional
interest, if any; or
|
|
|
|
impair the right to institute suit for the enforcement of any
payment with respect to the 2029 note or with respect to
conversion of the 2029 note.
|
Without providing notice to or obtaining the consent of any
holder of 2029 notes, we and the trustee may amend the 2029 note
indenture:
|
|
|
|
|
to evidence a successor to us and the assumption by that
successor of our obligations under the 2029 note indenture and
the 2029 notes;
|
|
|
|
to add to our covenants for the benefit of the holders of the
2029 notes or to surrender any right or power conferred upon us;
|
|
|
|
to secure our obligations in respect of the 2029 notes;
|
|
|
|
to add a guarantor or guarantors of the 2029 notes or release
any guarantor in accordance with the terms of the 2029 note
indenture;
|
|
|
|
to evidence and provide the acceptance of the appointment of a
successor trustee under the 2029 note indenture;
|
|
|
|
to comply with the requirements of the SEC in order to maintain
qualification of the 2029 note indenture under the
Trust Indenture Act, as contemplated by the 2029 note
indenture or otherwise;
|
|
|
|
to provide for conversion rights of holders if any
reclassification or change of common stock or any consolidation,
merger or sale of all or substantially all of our property and
assets occurs or otherwise comply with the provisions of the
2029 note indenture in the event of a merger, consolidation or
transfer of assets;
|
|
|
|
to increase the conversion rate (a) in accordance with the
terms of the 2029 notes or (b) provided that the increase
will not adversely affect the interests of holders;
|
|
|
|
to cure any ambiguity, omission, defect or inconsistency in the
2029 note indenture;
|
|
|
|
to provide for uncertificated notes in addition to certificated
notes;
|
|
|
|
to conform the 2029 note indenture to the description of the
2029 Notes contained in this prospectus; or
|
|
|
|
to make any change that does not adversely affect the rights of
the holders of the 2029 notes in any material respect.
|
The holders of a majority in aggregate principal amount of the
outstanding 2029 notes may, on behalf of all the holders of all
2029 notes:
|
|
|
|
|
waive compliance by us with restrictive provisions of the 2029
note indenture, as detailed in the 2029 note indenture; or
|
|
|
|
waive any past default or event of default under the 2029 note
indenture and its consequences, except a default or event of
default in the payment of any amount due, or in the obligation
to deliver common stock, with respect to any 2029 note, or in
respect of any provision which under the 2029 note indenture
cannot be modified or amended without the consent of the holder
of each outstanding 2029 note affected.
|
99
Discharge
of the 2029 Note Indenture
We may satisfy and discharge our obligations under the 2029 note
indenture by delivering to the trustee for cancellation all
outstanding 2029 notes or by depositing with the trustee, the
paying agent or the conversion agent, if applicable, after the
2029 notes have become due and payable, whether at stated
maturity, a redemption date or a fundamental change purchase
date, or upon conversion or otherwise, cash or shares of common
stock (as applicable under the terms of the 2029 note indenture)
sufficient to pay all amounts due under the outstanding 2029
notes and paying all other sums payable under the 2029 note
indenture.
Calculations
in Respect of 2029 Notes
We are responsible for making all calculations called for under
the 2029 notes, except for those necessary to determine if the
2029 notes are convertible based on the price of our common
stock (which are made by the conversion agent on our behalf).
See Conversion Rights Conversion
Based on Common Stock Price. These calculations include,
but are not limited to, determination of the average trading
prices of the 2029 notes and of our common stock. We will make
all these calculations in good faith and, absent manifest error,
our calculations are final and binding on holders of 2029 notes.
We will provide a schedule of our calculations to the trustee
upon the trustees request and the trustee is entitled to
conclusively rely upon the accuracy of our calculations without
independent verification.
Governing
Law
The 2029 note indenture and the 2029 notes will be governed by,
and construed in accordance with, the law of the State of New
York.
Information
Concerning the Trustee
U.S. Bank National Association is the trustee, registrar,
paying agent and conversion agent under the 2029 note indenture
for the 2029 notes. U.S. Bank National Association also serves
as the trustee, registrar, paying agent and conversion agent
with respect to our 2012 notes and our 2013 notes, and as the
trustee, registrar and paying agent with respect to our 2015
notes and 2017 notes.
Global
Notes; Book-Entry; Form
The 2029 notes will be initially issued in the form of one or
more global notes. The initial global note will be deposited
with the trustee as custodian for DTC and registered in the name
of a nominee of DTC. Except in limited circumstances as set
forth in the 2029 note indenture, the global note may be
transferred, in whole and not in part, only to DTC or another
nominee of DTC. You will hold your beneficial interests in the
global note directly through DTC if you have an account with DTC
or indirectly through organizations that have accounts with DTC.
2029 notes in definitive certificated form, referred to as
certificated notes in this prospectus, will be issued only in
limited circumstances described below.
DTC has advised us that it is:
|
|
|
|
|
a limited purpose trust company organized under the laws of the
State of New York;
|
|
|
|
a member of the Federal Reserve System;
|
|
|
|
a clearing corporation within the meaning of the New
York Uniform Commercial Code; and
|
|
|
|
a clearing agency registered pursuant to the
provisions of Section 17A of the Exchange Act.
|
DTC was created to hold securities of institutions that have
accounts with DTC, referred to as participants in this
prospectus, and to facilitate the clearance and settlement of
securities transactions among its participants in such
securities through electronic book-entry changes in accounts of
the participants, thereby eliminating the need for physical
movement of securities certificates. DTCs participants
include securities brokers and dealers, which may include the
initial purchaser of the 2029 notes, banks, trust companies,
clearing corporations and certain other organizations. Access to
DTCs book-entry system is also available to others
100
such as banks, brokers, dealers and trust companies, referred to
as indirect participants in this prospectus, that clear through
or maintain a custodial relationship with a participant, whether
directly or indirectly.
We expect that pursuant to procedures established by DTC upon
the deposit of the global note with DTC, DTC will credit, on its
book-entry registration and transfer system, the principal
amount of 2029 notes represented by such global note to the
accounts of participants. Ownership of beneficial interests in
the global note will be limited to participants or persons that
may hold interests through participants. Ownership of beneficial
interests in the global note will be shown on, and the transfer
of those beneficial interests will be effected only through,
records maintained by DTC (with respect to participants
interests), the participants and the indirect participants.
The laws of some jurisdictions may require that certain
purchasers of securities take physical delivery of such
securities in definitive form. These limits and laws may impair
the ability to transfer or pledge beneficial interests in the
global note.
Owners of beneficial interests in a global note who desire to
convert their interests should contact their brokers or other
participants or indirect participants through whom they hold
such beneficial interests to obtain information on procedures,
including proper forms and cut off times, for submitting
requests for conversion. So long as DTC, or its nominee, is the
registered owner or holder of a global note, DTC or its nominee,
as the case may be, will be considered the sole owner or holder
of the 2029 notes represented by the global note for all
purposes under the 2029 note indenture and the 2029 notes. In
addition, no owner of a beneficial interest in a global note
will be able to transfer that interest except in accordance with
the applicable procedures of DTC and the applicable procedures
of its participants and indirect participants.
Except as set forth below, as an owner of a beneficial interest
in the global note, you will not be entitled to have the 2029
notes represented by the global note registered in your name,
will not receive or be entitled to receive physical delivery of
certificated notes and will not be considered to be the owner or
holder of any 2029 notes under the global note. We understand
that under existing industry practice, if an owner of a
beneficial interest in the global note desires to take action
that DTC, as the holder of the global note, is entitled to take,
DTC would authorize the participants to take such action.
Additionally, in such case, the participants would authorize
beneficial owners through such participants to take such action
or would otherwise take such action upon the instructions of
beneficial owners owning through them.
We will make payments of principal, premium, if any, and
interest (including contingent and additional interest, if any)
on the 2029 notes represented by the global note registered in
the name of and held by DTC or its nominee to DTC or its
nominee, as the case may be, as the registered owner and holder
of the global note. Neither we, the trustee nor any paying agent
will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial
interests in the global note or for maintaining, supervising or
reviewing any records relating to such beneficial interests.
We expect that DTC or its nominee, upon receipt of any payment
of principal, premium, if any, or interest (including contingent
and additional interest, if any) on the global note, will credit
participants accounts with payments in amounts
proportionate to their respective beneficial interests in the
principal amount of the global note as shown on the records of
DTC or its nominee. We also expect that payments by participants
or indirect participants to owners of beneficial interests in
the global note held through such participants or indirect
participants will be governed by standing instructions and
customary practices and will be the responsibility of such
participants or indirect participants. We will not have any
responsibility or liability for any aspect of the records
relating to, or payments made on account of, beneficial
interests in the global note for any 2029 note or for
maintaining, supervising or reviewing any records relating to
such beneficial interests or for any other aspect of the
relationship between DTC and its participants or indirect
participants or the relationship between such participants or
indirect participants and the owners of beneficial interests in
the global note owning through such participants.
Transfers between participants in DTC will be effected in the
ordinary way in accordance with DTC rules and will be settled in
same-day
funds.
101
DTC has advised us that it will take any action permitted to be
taken by a holder of 2029 notes only at the direction of one or
more participants to whose account the DTC interests in the
global note is credited and only in respect of such portion of
the aggregate principal amount of 2029 notes as to which such
participant has or participants have given such direction.
However, if DTC notifies us that it is unwilling to be a
depositary for the global note or ceases to be a clearing agency
or there is an event of default under the 2029 notes, DTC will
exchange the global note for certificated securities which it
will distribute to its participants. In addition, if an event of
default has occurred and its continuing, DTC may exchange the
global note for certificated securities which it will distribute
to its participants. Although DTC is expected to follow the
foregoing procedures in order to facilitate transfers of
interests in the global note among participants of DTC, it is
under no obligation to perform or continue to perform such
procedures, and such procedures may be discontinued at any time.
Neither we nor the trustee will have any responsibility or
liability for the performance by DTC or the participants or
indirect participants of their respective obligations under the
rules and procedures governing their respective operations.
102
DESCRIPTION
OF CAPITAL STOCK
Authorized
Capital Stock
Our authorized capital stock consists of 200,000,000 shares
of common stock, $0.01 par value per share, and
25,000,000 shares of preferred stock, $0.01 par value
per share, of which 2,070,000 shares have been designated
as Series A preferred stock. As of October 21, 2009,
there were approximately 52.0 million shares of common
stock outstanding (net of treasury shares) held of record by
approximately 1,830 stockholders. As of October 21,
2009, there were 76,202 shares of Series A preferred
stock outstanding held of record by one stockholder. The
following description of our capital stock and provisions of our
amended and restated certificate of incorporation and amended
and restated by-laws are only summaries, and we encourage you to
review complete copies of our amended and restated certificate
of incorporation, as amended, and our amended and restated
by-laws, which we have filed previously with the SEC. See
Incorporation of Certain Documents by Reference and
Where You Can Find More Information.
Common
Stock
Holders of our common stock are entitled to receive, as, when
and if declared by our board of directors, dividends and other
distributions in cash, stock or property from our assets or
funds legally available for those purposes subject to any
dividend preferences that may be attributable to preferred
stock, if any. Holders of common stock are entitled to one vote
for each share held of record on all matters on which
stockholders may vote. Holders of common stock are not entitled
to cumulative voting for the election of directors. There are no
preemptive, conversion, redemption or sinking fund provisions
applicable to our common stock. In the event of our liquidation,
dissolution or winding up, holders of common stock are entitled
to share ratably in the assets available for distribution,
subject to any prior rights of any holders of preferred stock,
if any, then outstanding.
Preferred
Stock
Our amended and restated certificate of incorporation, as
amended, authorizes our board of directors, without any vote or
action by the holders of common stock, to issue up to
25,000,000 shares of preferred stock from time to time in
one or more series. Our board of directors is authorized to
determine the number of shares and designation of any additional
series of preferred stock and the dividend rights, dividend
rate, conversion rights and terms, voting rights, redemption
rights and terms, liquidation preferences, sinking fund terms
and other rights, preferences, privileges and restrictions of
any series of preferred stock. Issuances of preferred stock
would be subject to the applicable rules of the New York Stock
Exchange or other organizations on whose systems the preferred
stock may then be quoted or listed. Depending upon the terms of
preferred stock established by our board of directors, any or
all series of preferred stock could have preferences over the
common stock with respect to dividends and other distributions
and upon liquidation. Issuance of any such shares with voting
powers, or issuance of additional shares of common stock, would
dilute the voting power of the outstanding common stock.
We believe that the availability of our preferred stock, in each
case issuable in series, and additional shares of common stock
could facilitate certain financings and acquisitions and provide
a means for meeting other corporate needs which might arise. The
authorized shares of our preferred stock, as well as authorized
but unissued shares of common stock will be available for
issuance without further action by our stockholders, unless
stockholder action is required by applicable law or the rules of
any stock exchange on which any series of our capital stock may
then be listed.
These provisions give our board of directors the power to
approve the issuance of a series of preferred stock, or an
additional series of common stock, that could, depending on its
terms, either impede or facilitate the completion of a merger,
tender offer or other takeover attempt. For example, the
issuance of new shares of preferred stock might impede a
business combination if the terms of those shares include voting
rights which would enable a holder to block business
combinations. Also, the issuance of new shares might facilitate
a
103
business combination if those shares have general voting rights
sufficient to cause an applicable percentage vote requirement to
be satisfied.
Series A
Preferred Stock
Ranking
The Series A preferred stock ranks senior to all of our
junior stock, which is our common stock, and each
other class or series of our capital stock that has terms which
do not expressly provide that such class or series will rank
senior to or on parity with the Series A preferred stock.
Dividends
Dividends accrue on the Series A preferred stock at the
rate of 5.75% per year and are payable quarterly in arrears on
February 24, May 24, August 24 and November 24 of each
year. Dividends are payable in cash, shares of our common stock,
or a combination of cash and common stock. If we do not pay a
dividend on a dividend payment date, then, until all accumulated
dividends have been declared and paid or declared and set apart
for payment, we may not take any of the following actions with
respect to any of our junior stock:
|
|
|
|
|
declare or pay any dividend or make any distribution of assets
on any junior stock, except that we may pay dividends in shares
of our junior stock and pay cash in lieu of fractional shares in
connection with any such dividend; or
|
|
|
|
subject to certain exceptions, redeem, purchase or otherwise
acquire any junior stock.
|
Liquidation
Preference
Upon our voluntary or involuntary liquidation, dissolution or
winding-up,
each holder of shares of Series A preferred stock will be
entitled to payment, out of our assets legally available for
distribution, of an amount equal to the liquidation preference,
initially $50.00 per share, plus an amount equal to all accrued
and unpaid and accumulated dividends on those shares to, but
excluding, the date of liquidation, dissolution or
winding-up,
before any distribution is made on any junior stock, including
our common stock. If the amounts payable with respect to shares
of Series A preferred stock and all other parity stock are
not paid in full, the holders of shares of Series A
preferred stock and the holders of the parity stock will share
equally and ratably in any distribution of our assets in
proportion to the full liquidation preference and the amount
equal to all accrued and unpaid and accumulated dividends to
which each such holder is entitled. Neither the voluntary sale,
conveyance, exchange or transfer, for cash, shares of stock,
securities or other consideration, of all or substantially all
of our property or assets nor our consolidation, merger or
amalgamation with or into any other entity, or the
consolidation, merger or amalgamation of any other entity with
or into us will be deemed to be our voluntary or involuntary
liquidation, dissolution or
winding-up.
Voting
Rights
Holders of the Series A preferred stock are not entitled to
any voting rights except as required by law and as set forth in
this section. So long as any shares of Series A preferred
stock remain outstanding, we shall not, without the consent of
the holders of at least two-thirds of the shares of
Series A preferred stock outstanding at the time:
|
|
|
|
|
issue shares of or increase the authorized number of shares of
any senior stock; or
|
|
|
|
amend our amended and restated certificate of incorporation or
the resolutions contained in the certificate of designations,
whether by merger, consolidation or otherwise, if the amendment
would alter or change any power, preference or special right of
the outstanding Series A preferred stock in any manner
materially adverse to the interests of the holders thereof.
|
Notwithstanding the foregoing, any increase in the authorized
number of shares of common stock or Series A preferred
stock or the authorization and issuance of junior stock or other
parity stock, including those with voting or redemption rights
that are different than the voting or redemption rights of the
Series A
104
preferred stock, shall not be deemed to be an amendment that
alters or changes such powers, preferences or special rights in
any manner materially adverse to the interests of the holders of
the Series A preferred stock.
If and whenever six full quarterly dividends, whether or not
consecutive, payable on the Series A preferred stock are
not paid, the number of directors constituting our board of
directors will be increased by two and the holders of the
Series A preferred stock, voting together as a single
class, will be entitled to elect those additional directors. In
the event of such a non-payment, any holder of the Series A
preferred stock may request that we call a special meeting of
the holders of Series A preferred stock for the purpose of
electing the additional directors and we must call such meeting
within 20 days of request. If we fail to call such a
meeting upon request, then any holder of Series A preferred
stock can call such a meeting. If all accumulated dividends on
the Series A preferred stock have been paid in full and
dividends for the current quarterly dividend period have been
paid, the holders of our Series A preferred stock will no
longer have the right to vote on directors and the term of
office of each director so elected will terminate and the number
of our directors will, without further action, be reduced by two.
In any case where the holders of our Series A preferred
stock are entitled to vote, each holder of our Series A
preferred stock will be entitled to one vote for each share of
Series A preferred stock.
Number of
Directors; Removal; Vacancies
The amended and restated certificate of incorporation and the
amended and restated by-laws provide that the number of
directors shall not be less than three nor more than nine and
shall be determined from time to time exclusively by a vote of a
majority of our board of directors then in office. The amended
and restated certificate of incorporation also provides that our
board of directors shall have the exclusive right to fill
vacancies, including vacancies created by expansion of our board
of directors. Furthermore, except as may be provided in a
resolution or resolutions of our board of directors providing
for any class or series of preferred stock with respect to any
directors elected by the holders of such class or series,
directors may be removed by our stockholders only for cause and
only by the affirmative vote of at least
66
2
/
3
%
of the voting power of all of the shares of our capital stock
then entitled to vote generally in the election of directors,
voting together as a single class. These provisions, in
conjunction with the provision of the amended and restated
certificate of incorporation authorizing our board of directors
to fill vacant directorships, could prevent stockholders from
removing incumbent directors without cause and filling the
resulting vacancies with their own nominees.
Under our amended and restated certificate of incorporation, our
board of directors is divided into three classes serving
staggered three-year terms. Each class is to be as nearly equal
in number as reasonably possible. The term of our Class I
director will next expire at our 2010 annual meeting of
stockholders, the term of our Class II directors will next
expire at our 2011 annual meeting of stockholders, and the term
of our Class III directors will next expire at our 2012
annual meeting of stockholders. Directors elected to succeed
directors whose terms have expired have a term of office lasting
three years and until their successors are elected and qualified
or until their earlier resignation or removal.
No
Stockholder Action by Written Consent; Special
Meetings
The amended and restated certificate of incorporation provides
that, except as may be provided in a resolution or resolutions
of our board of directors providing for any class or series of
preferred stock, stockholder action can be taken only at an
annual or special meeting of stockholders and cannot be taken by
written consent in lieu of a meeting. The amended and restated
certificate of incorporation also provides that special meetings
of the stockholders can only be called pursuant to a resolution
approved by a majority of our board of directors then in office.
Stockholders are not permitted to call a special meeting of
stockholders.
Advance
Notice for Raising Business or Making Nominations at
Meetings
The amended and restated by-laws establish an advance notice
procedure for stockholder proposals to be brought before a
meeting of our stockholders and for nominations by stockholders
of candidates for election as directors at an annual meeting or
a special meeting at which directors are to be elected. Subject
to any other applicable requirements, including, without
limitation,
Rule 14a-8
under the Exchange Act, only such
105
business may be conducted at a meeting of stockholders as has
been brought before the meeting by, or at the direction of, our
board of directors, or by a stockholder who has given to our
secretary timely written notice, in proper form, of the
stockholders intention to bring that business before the
meeting. The presiding officer at such meeting has the authority
to make such determinations. Only persons who are nominated by,
or at the direction of, our board of directors, or who are
nominated by a stockholder who has given timely written notice,
in proper form, to the Secretary prior to a meeting at which
directors are to be elected will be eligible for election as
directors.
To be timely, notice of nominations or other business to be
brought before an annual meeting must be received by our
Secretary at our principal executive offices no later than
60 days prior to the date of such annual meeting.
Similarly, notice of nominations or other business to be brought
before a special meeting must be delivered to our Secretary at
the principal executive office no later than the close of
business on the 15th day following the day on which notice
of the date of a special meeting of stockholders was given. The
notice of any nomination for election as a director must set
forth:
|
|
|
|
|
the name, date of birth, business and residence address of the
person or persons to be nominated;
|
|
|
|
the business experience during the past five years of such
person or persons; including his or her principal occupations
and employment during such period, the name and principal
business of any corporation or other organization in which such
occupations and employment were carried on, and such other
information as to the nature of his or her responsibilities and
level of professional competence as may be sufficient to permit
assessment of his or her prior business experience;
|
|
|
|
a description of all direct and indirect compensation and other
material monetary and non-monetary agreements, arrangements and
understandings during the past three years, and any other
material relationships, between or among the stockholder
submitting the nomination notice and any stockholder associated
person acting in concert with such person, on the one hand, and
each proposed nominee and any stockholder associated person
acting in concert with such nominee, on the other hand,
including, without limitation, all information that would be
required to be disclosed pursuant to Item 404 promulgated under
Regulation S-K
if the nominating stockholder and any beneficial owner on whose
behalf the nomination is made, if any, or any stockholder
associated person acting in concert therewith, were the
registrant for purposes of such Item and the nominee
were a director or executive officer of such registrant;
|
|
|
|
whether such person or persons are or have ever been at any time
directors, officers or owners of 5% or more of any class of
capital stock, partnership interest or other equity interest of
any corporation, partnership or other entity;
|
|
|
|
any directorships held by such person or persons in any company
with a class of securities registered pursuant to
Section 12 of the Exchange Act or subject to the
requirements of Section 15(d) of the Exchange Act or any
company registered as an investment company under the Investment
Company Act of 1940, as amended;
|
|
|
|
whether, in the last five years, such person or persons are or
have been convicted in a criminal proceeding or have been
subject to a judgment, order, finding or decree of any federal,
state or other governmental entity, concerning any violation of
federal, state or other law, or any proceeding in bankruptcy,
which conviction, order, finding, decree or proceeding may be
material to an evaluation of the ability or integrity of the
nominee;
|
|
|
|
any other information relating to such person or persons that
would be required to be disclosed in a proxy statement or other
filings required to be made in connection with solicitations of
proxies for election of directors in a contested election
pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder; and
|
|
|
|
the consent of each such person to be named in a proxy statement
as a nominee and to serve as a director if elected.
|
106
The person submitting the notice of nomination, and any person
acting in concert with such person, must provide their names and
business addresses, the name and address under which they appear
on our books (if they so appear), and the class and number of
shares of our capital stock that are beneficially owned by them.
Amendment
of the Amended and Restated Certificate of
Incorporation
Any proposal to amend, alter, change or repeal any provision of
the amended and restated certificate of incorporation, except as
may be provided in a resolution or resolutions of our board of
directors providing for any class or series of preferred stock
and which relate to such class or series of preferred stock,
requires approval by the affirmative vote of both a majority of
the members of our board of directors then in office and a
majority vote of the voting power of all of the shares of our
capital stock entitled to vote generally in the election of
directors, voting together as a single class. Notwithstanding
the foregoing, any proposal to amend, alter, change or repeal
the provisions of the amended and restated certificate of
incorporation relating to:
|
|
|
|
|
the classification of our board of directors;
|
|
|
|
the removal of directors;
|
|
|
|
the prohibition of stockholder action by written consent or
stockholder calls for special meetings;
|
|
|
|
the amendment of amended and restated by-laws; or
|
|
|
|
the amendment of the amended and restated certificate of
incorporation
|
requires approval by the affirmative vote of
66
2
/
3
%
of the voting power of all of the shares of our capital stock
entitled to vote generally in the election of directors, voting
together as a single class.
Amendment
of the Amended and Restated By-Laws
The amended and restated certificate of incorporation provides
that our board of directors or the holders of at least
66
2
/
3
%
of the voting power of all shares of our capital stock then
entitled to vote generally in the election of directors, voting
together as a single class, have the power to amend or repeal
our amended and restated by-laws.
Delaware
Law and Certain Charter and Bylaw Provisions; Anti-Takeover
Measures
We are governed by the provisions of Section 203 of the
Delaware General Corporation Law, which defines a person who
owns 15% or more of a Delaware corporations voting stock,
or is an affiliate of a Delaware corporation and within the last
three years, was the owner of 15% or more of such Delaware
corporations voting stock, as an interested
stockholder. Section 203 prohibits a public Delaware
corporation from engaging in a business combination with an
interested stockholder for a period commencing three years from
the date in which the person became an interested stockholder,
unless:
|
|
|
|
|
the board of directors approved the transaction which resulted
in the stockholder becoming an interested stockholder;
|
|
|
|
upon consummation of the transaction which resulted in the
stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the
corporation (excluding shares owned by officers, directors, or
certain employee stock purchase plans); or
|
|
|
|
at or subsequent to the time the transaction is approved by the
board of directors, there is an affirmative vote of at least
66
2
/
3
%
of the outstanding voting stock not owned by the interested
stockholder approving the transaction.
|
Section 203 could prohibit or delay mergers or other
takeover attempts against us, and accordingly, may discourage
attempts to acquire us through a tender offer, proxy contest or
otherwise.
Certain provisions in our amended and restated certificate of
incorporation and amended and restated by-laws could make it
harder for someone to acquire us through a tender offer, proxy
contest or otherwise. For a description of such provisions, see
Preferred Stock,
Series A Preferred Stock
Voting Rights, Number of Directors;
Removal; Vacancies, No Stockholder
Action by Written Consent; Special Meetings,
Advance Notice for Raising Business or Making
Nominations at Meetings, Amendment
107
of the Amended and Restated Certificate of Incorporation
and Amendment of the Amended and Restated
By-Laws.
Transfer
Agent and Registrar
The transfer agent and registrar for our common stock and our
Series A preferred stock is Computershare.
108
COMPARISON
OF THE 2029 NOTES TO THE 2012 NOTES
The following description is a comparison of the material
terms and provisions of the 2029 notes and the 2012 notes. This
description does not purport to be complete and is qualified in
its entirety by express reference to the respective indentures
governing each of the 2029 notes and the 2012 notes, copies of
which have been filed with the SEC as exhibits to the
registration statement of which this prospectus forms a part and
are available as described under Where You Can Find More
Information.
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
Issuer
|
|
General Cable Corporation
|
|
General Cable Corporation
|
|
|
|
|
|
Aggregate Principal Amount Outstanding Immediately Prior to the
Exchange Offer
|
|
None.
|
|
$475.0 million.
|
|
|
|
|
|
Denominations of Issuance
|
|
Minimum denomination of $1,000 and integral multiples thereof.
|
|
Minimum denomination of $1,000 and integral multiples thereof.
|
|
|
|
|
|
Interest Rate
|
|
The 2029 notes bear cash interest at the rate of 4.50% per year
until November 15, 2019 and thereafter until maturity bear cash
interest at the rate of 2.25% per year. Interest on the 2029
notes will be payable semi-annually in arrears on May 15 and
November 15 of each year, commencing on May 15, 2010.
|
|
The 2012 notes bear cash interest at the rate of 1.00% per year.
Interest on the 2012 notes is payable semi-annually in arrears
on April 15 and October 15 of each year.
|
|
|
|
|
|
Contingent Interest
|
|
Beginning with the six-month period commencing on November 15,
2019, we will pay contingent interest in cash during any
six-month interest period if the trading price of the 2029 notes
for each of the five trading days ending on the second trading
day immediately preceding the first day of the applicable
six-month interest period equals or exceeds 120% of the
principal amount of the 2029 notes. During any interest period
when contingent interest is payable, the contingent interest
will equal 0.50% of the average trading price of $1,000 in
principal amount of the 2029 notes during the five trading days
ending on the second trading day immediately preceding the first
day of the applicable six-month interest period.
|
|
None.
|
|
|
|
|
|
Maturity
|
|
The 2029 notes will mature on November 15, 2029 unless earlier
converted, redeemed or repurchased.
|
|
The maturity date of the 2012 notes is October 15, 2012, unless
earlier converted or repurchased.
|
109
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
Guarantees
|
|
None.
|
|
The 2012 notes are fully and unconditionally guaranteed, jointly
and severally, on an unsecured senior basis, by each of our
subsidiaries that is a borrower or a guarantor under any U.S.
senior credit facility (as defined in the 2012 note indenture),
our 2013 notes, our 2015 notes or our 2017 notes.
|
|
|
|
|
|
Ranking
|
|
The 2029 notes will be unsecured obligations subordinated in
right of payment to our existing and future senior debt,
effectively subordinated to all of our secured indebtedness to
the extent of the value of the assets securing such indebtedness
and effectively subordinated in right of payment to all
indebtedness and other liabilities of our subsidiaries,
including trade payables.
|
|
The 2012 notes and the related guarantees are our and our
guarantors unsecured senior obligations and: (i) rank
equally in right of payment with all of our and our
guarantors existing and future senior indebtedness; (ii)
are senior in right of payment to any of our and our
guarantors existing and future subordinated indebtedness;
(iii) are effectively subordinated to all of our and our
guarantors existing and any future secured indebtedness,
to the extent of the value of the assets securing such
indebtedness; and (iv) are effectively subordinated to all
existing and future indebtedness and other liabilities,
including trade payables, of our subsidiaries that do not
guarantee the 2012 notes.
|
|
|
|
|
|
Conversion rights
|
|
Holders may convert their 2029 notes prior to the close of business on the trading day before November 15, 2029, the maturity date of the 2029 notes, based on the applicable conversion rate only under the following circumstances:
during any calendar quarter commencing after March 31, 2010, if the closing price of our common stock for at least 20 trading days in the 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is more than 130% of the conversion price per share;
|
|
Holders may convert their 2012 notes prior to the close of business on the business day before October 15, 2012, the maturity date of the 2012 notes, based on the applicable conversion rate only under the following circumstances:
during any calendar quarter, if the closing price of our common stock for at least 20 trading days in the 30 consecutive trading days ending on the last trading day of the immediately preceding calendar quarter is more than 130% of the conversion price per share;
|
110
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
|
|
during the five business day period
after any period of five consecutive trading days in which the
trading price per $1,000 principal amount of 2029 notes for each
day of that period was less than 98% of the product of the
closing price of our common stock for each day of that period
and the then applicable conversion rate;
|
|
during the five business day period
after any period of five consecutive trading days in which the
trading price per $1,000 principal amount of 2012 notes for each
day of that period was less than 98% of the product of the
closing price of our common stock for each day of that period
and the then applicable conversion rate;
|
|
|
if specified distributions to holders of
our common stock are made;
if we are a party to any transaction or
event (including any consolidation or merger) pursuant to which
all or substantially all shares of our common stock would be
converted into cash, securities or other property;
at any time beginning 15 days
before the anticipated effective date of a fundamental change
and until the trading day prior to the fundamental change
purchase date, if a fundamental change, as defined in the 2029
note indenture, occurs;
if we elect to redeem 2029 notes, such
2029 notes to be redeemed may be converted, in whole or in part,
at any time from the date notice of redemption is given by us to
holders until the close of business on the trading day
immediately preceding the redemption date; or
at any time beginning on August 31,
2029 and ending at the close of business on the trading day
immediately preceding the November 15, 2029 maturity date.
|
|
if specified distributions to holders of
our common stock are made;
if we are a party to any transaction or
event (including any consolidation or merger) pursuant to which
all or substantially all shares of our common stock would be
converted into cash, securities or other property;
at any time beginning 15 days
before the anticipated effective date of a fundamental change
and until the trading day prior to the fundamental change
purchase date, if a fundamental change, as defined in the 2012
note indenture, occurs; or
at any time beginning on September 15,
2012 and ending at the close of business on the business day
immediately preceding the October 15, 2012 maturity date.
|
111
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
Conversion Price and Conversion Rate
|
|
Subject to the conditions to conversion being satisfied, the 2029 notes will be convertible into cash and, in certain circumstances, shares of our common stock. The initial conversion price of the 2029 notes will equal 122.5% of the average VWAP, rounded to four decimal places; provided that in no event will the initial conversion price be less than $36.75. The initial conversion rate of the 2029 notes will be specified in the 2029 note indenture, and will equal $1,000 divided by the initial conversion price, rounded to four decimal places. In no event will the initial conversion rate exceed 27.2109 shares of our common stock per $1,000 principal amount of 2029 notes.
The conversion rate, and thus the conversion price, may be adjusted under certain circumstances.
|
|
Subject to the conditions to conversion being satisfied, the 2012 notes are convertible into cash and, in certain circumstances, shares of our common stock pursuant to the terms of the indenture governing the 2012 notes. The conversion rate of the 2012 notes is 11.9142 shares of common stock per $1,000 principal amount of 2012 notes. This is equivalent to a conversion price of approximately $83.93 per share of common stock.
The conversion rate, and thus the conversion price, may be adjusted under certain circumstances.
|
112
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
Adjustment to Conversion Rate upon Certain Change of Control
Transactions
|
|
If a holder elects to convert its 2029 notes in connection with certain change of control transactions occurring on or before the maturity date that constitute a make whole transaction, we will pay a make whole premium on 2029 notes converted in connection with such transactions by increasing the conversion rate applicable to the 2029 notes. Any make whole premium will have the effect of increasing the amount of any cash, securities or other assets otherwise due to the holders of 2029 notes upon conversion.
Any increase in the applicable conversion rate will be determined by reference to a matrix applicable to the 2029 notes and is based on the date on which such make whole transaction becomes effective and the price paid, or deemed paid, per share of our common stock in such make whole transaction.
If the holders of our common stock receive only cash in the make whole transaction, the stock price shall be the cash amount paid per share of common stock. Otherwise, the stock price shall be the average of the closing sale prices of our common stock for each of the ten consecutive trading days prior to, but excluding, the effective date.
|
|
If a holder elects to convert its 2012 notes in connection with certain change of control transactions occurring on or before the maturity date, we will pay a make whole premium on 2012 notes converted in connection with such transactions by increasing the conversion rate applicable to the 2012 notes. Any make whole premium will have the effect of increasing the amount of any cash, securities or other assets otherwise due to the holders of 2012 notes upon conversion.
Any increase in the applicable conversion rate will be determined by reference to a matrix applicable to the 2012 notes and is based on the date on which such change of control transaction becomes effective and the price paid, or deemed paid, per share of our common stock in such transaction.
If the holders of our common stock receive only cash in the change of control transaction, the stock price shall be the cash amount paid per share of common stock. Otherwise, the stock price shall be the average of the closing sale prices of our common stock for each of the ten consecutive trading days prior to, but excluding, the effective date.
|
113
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
Optional Redemption
|
|
The 2029 notes will be subject to redemption for cash by us at any time on or after November 15, 2019, in whole or in part, at a redemption price equal to 100% of the principal amount of the 2029 notes, plus accrued and unpaid interest (including contingent and additional interest, if any) to, but not including, the redemption date if the last reported sale price of our common stock has been at least 150% of the conversion price then in effect for at least 20 trading days during the 30 consecutive trading day period immediately preceding the date on which we provide notice of redemption.
The 2029 notes will also be subject to redemption for cash by us at any time on or prior to November 15, 2010, in whole or in part, if a tax triggering event (as defined in this prospectus) has occurred, at a redemption price equal to (i) 101.5% of the principal amount thereof, plus, (ii) if the redemption conversion value (as defined in this prospectus) as of the redemption date of the 2029 notes being redeemed exceeds their initial conversion value (as defined in this prospectus), 95% of the amount determined by subtracting the initial conversion value of such 2029 notes from their redemption conversion value as of the redemption date, plus (iii) accrued and unpaid interest (including additional interest, if any) to, but excluding, the redemption date.
|
|
The 2012 notes are not subject to redemption.
|
114
|
|
|
|
|
|
|
2029 Notes
|
|
2012 Notes
|
|
Purchase of Notes by Us for Cash at the Option of Holders Upon a
Fundamental Change
|
|
In the event of a fundamental change, as defined in the 2029 note indenture, each holder of 2029 notes will have the right to require us to purchase for cash all of such holders 2029 notes, or any portion thereof, in integral multiples of $1,000, on the date, referred to as the fundamental change purchase date, that is 30 business days after the later of the effective date of the fundamental change and the date we give notice of the fundamental change.
The purchase price to be paid to holders of 2029 notes exercising this purchase right is equal to 100% of the principal amount of the 2029 notes to be purchased, plus accrued and unpaid interest (including contingent and additional interest), if any, to, but excluding, the fundamental change purchase date. If such fundamental change purchase date is after a record date but prior to an interest payment date, however, then the interest payable on such interest payment date will be paid to the holder of record of the 2029 notes on the relevant regular record date.
|
|
In the event of a fundamental change, as defined in the 2012 note indenture, each holder of 2012 notes will have the right to require us to purchase for cash all of such holders 2012 notes, or any portion thereof, in integral multiples of $1,000, on the date that is 30 business days after the later of the effective date of the fundamental change and the date we give notice of the fundamental change.
The purchase price to be paid to holders of 2012 notes exercising this purchase right is equal to 100% of the principal amount of the 2012 notes to be purchased, plus accrued and unpaid interest, if any, to, but excluding, the fundamental change purchase date. If such fundamental change purchase date is after a record date but prior to an interest payment date, however, then the interest payable on such interest payment date will be paid to the holder of record of the 2012 notes on the relevant regular record date.
|
|
|
|
|
|
Events of Default
|
|
If an event of default under the indenture governing the 2029
notes occurs, the principal amount of the 2029 notes, plus
premium, if any, and accrued and unpaid interest (including
contingent and additional interest), if any, may be declared
immediately due and payable, subject to certain conditions set
forth in the 2029 note indenture. These amounts automatically
become due and payable in the case of certain types of
bankruptcy, insolvency or reorganization events of default
involving us or our significant subsidiaries.
|
|
If an event of default under the indenture governing the 2012
notes occurs, the principal amount of the 2012 notes, plus
premium, if any, and accrued and unpaid interest, if any, may be
declared immediately due and payable, subject to certain
conditions set forth in the 2012 note indenture. These amounts
automatically become due and payable in the case of certain
types of bankruptcy, insolvency or reorganization events of
default involving us or our significant subsidiaries.
|
|
|
|
|
|
Trading
|
|
We do not intend to list the 2029 notes on any national
securities exchange or to arrange for the quotation of the 2029
notes on any automated quotation system.
|
|
The 2012 notes are not listed on any national securities
exchange or quoted on any automated quotation system.
|
115
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of the material U.S. federal
income tax consequences to holders of 2012 notes in the exchange
offer and the acquisition, ownership and disposition of the 2029
notes and, where noted, the common stock into which the 2029
notes are convertible. It is based on provisions of the
U.S. Internal Revenue Code of 1986, as amended, or the
Code, existing and proposed Treasury regulations promulgated
thereunder, or the Treasury Regulations, and administrative and
judicial interpretations thereof, all as of the date hereof and
all of which are subject to change or differing interpretations,
possibly on a retroactive basis. No ruling from the Internal
Revenue Service, or the IRS, has been or is expected to be
sought with respect to any aspect of the transactions described
herein. The following discussion relates only to 2012 notes,
2029 notes received in the exchange offer and, where noted,
common stock received upon conversion of a 2029 note that is
held by holders who hold such 2012 notes, 2029 notes, and common
stock as capital assets. This summary does not address all of
the tax consequences that may be relevant to particular holders
in light of their particular circumstances, or to certain types
of holders such as banks and other financial institutions,
certain expatriates, real estate investment trusts, regulated
investment companies, insurance companies, tax-exempt
organizations, partnerships or other pass-through entities,
dealers in securities, brokers, persons who have hedged the
interest rate on the 2012 notes or who hedge the interest rate
on the 2029 notes, traders in securities that elect to use a
mark-to-market
method of accounting for their securities holdings,
U.S. persons, as defined by the Code, whose functional
currency is not the U.S. dollar, or persons who hold the
2012 notes, 2029 notes or common stock as part of a
straddle, hedge or conversion
transaction. In addition, this summary does not include
any description of the U.S. federal alternative minimum tax
or estate and gift tax consequences, or the consequences under
any state, local or
non-U.S. tax
that may be applicable to a particular holder.
For purposes of this summary, a U.S. Holder is
a beneficial owner of a 2012 note, a 2029 note or our common
stock that is, for U.S. federal income tax purposes:
|
|
|
|
|
an individual citizen or resident of the United States;
|
|
|
|
a corporation (or an entity treated as a corporation for
U.S. federal income tax purposes) that is organized under
the laws of the United States or any political subdivision
thereof;
|
|
|
|
an estate, the income of which is subject to U.S. federal
income tax without regard to its source; or
|
|
|
|
a trust if:
|
|
|
|
|
|
a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more
U.S. persons have the authority to control all substantial
decisions of the trust, or
|
|
|
|
the trust has made a valid election to be treated as a
U.S. person.
|
A
non-U.S. Holder
is a beneficial owner of a 2012 note, a 2029 note or our common
stock that is neither a U.S. Holder nor an entity or
arrangement treated as a partnership for U.S. federal
income tax purposes.
If a partnership (including for this purpose any entity or
arrangement treated as a partnership for U.S. federal
income tax purposes) is a beneficial owner of a 2012 note, a
2029 note or our common stock, the treatment of a partner in the
partnership will generally depend upon the status of the partner
and upon the activities of the partnership. Partnerships and
partners in such partnerships should consult their tax advisors
about the U.S. federal income tax consequences of owning
and disposing of the 2012 notes, the 2029 notes and our common
stock.
HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS WITH RESPECT
TO THE PARTICULAR U.S. FEDERAL INCOME TAX CONSEQUENCES TO
THEM OF THE CONSUMMATION OF THE EXCHANGE OFFER, INCLUDING THE
ACQUISITION, OWNERSHIP AND DISPOSITION OF THE 2029
NOTES AND COMMON STOCK INTO WHICH THE 2029 NOTES ARE
CONVERTIBLE AS WELL AS THE TAX CONSEQUENCES UNDER STATE, LOCAL
AND
NON-U.S. TAX
AND OTHER
116
U.S. FEDERAL TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES
IN TAX LAWS BEFORE DETERMINING WHETHER TO PARTICIPATE IN THE
EXCHANGE OFFER.
Classification
of the 2029 Notes
Under the indenture governing the 2029 notes, we and each holder
of the 2029 notes agree, for U.S. federal income tax
purposes, to treat the 2029 notes as indebtedness that is
subject to the regulations governing contingent payment debt
instruments, or the contingent debt regulations, in the manner
described below. However, the application of the contingent debt
regulations to instruments such as the 2029 notes is uncertain
in several respects, and no rulings have been sought from the
IRS or a court with respect to any of the tax consequences
discussed below. Any differing treatment could affect the
amount, timing, and character of income, gain, or loss in
respect of an investment in the 2029 notes. For example, a
holder might be required to accrue original issue discount at a
lower rate, might not recognize income, gain, or loss upon
conversion of the 2029 notes to the extent of common stock
received, and might recognize capital gain or loss upon a
taxable disposition of its 2029 notes.
Except as otherwise noted below, the remainder of this
discussion assumes that the 2029 notes will be treated as
indebtedness subject to the contingent debt regulations and does
not address any possible differing treatments of the 2029 notes.
Holders should consult their tax advisors regarding the tax
treatment of holding the 2029 notes.
U.S.
Federal Income Tax Consequences to Exchanging U.S.
Holders
The
Exchange of 2012 Notes for 2029 Notes
We intend to take the position, although the matter is not free
from doubt, that the exchange of 2012 notes for 2029 notes will
constitute a recapitalization for U.S. federal income tax
purposes. Whether such exchange qualifies as a recapitalization
to a holder depends upon, among other things, whether the 2012
notes and 2029 notes constitute securities for
U.S. federal income tax purposes. The rules for determining
whether debt instruments such as the 2012 notes and 2029 notes
are securities are unclear. The term security is not
defined in the Code or Treasury Regulations and has not been
clearly defined by judicial decisions. The determination of
whether a debt instrument is a security requires an overall
evaluation of the nature of the debt instrument, with the term
of the instrument typically regarded as one of the most
significant factors. In this regard, debt instruments with a
term of ten years or more generally have qualified as
securities, whereas debt instruments with a term of less than
five years generally have not qualified as securities. Because
the 2012 notes have a term of more than five years but less than
ten years, it is unclear whether they will qualify as
securities. We believe and intend to take the position that the
2012 notes and the 2029 notes will be treated as securities.
Unless clearly stated to the contrary, the remainder of this
discussion assumes that the exchange will be a recapitalization
and that the 2012 notes and 2029 notes qualify as securities for
U.S. federal income tax purposes. If the IRS were
successful in asserting any contrary position, it could impact
the amount, timing or character of the income, gain or loss you
recognize with respect to the exchange or your ownership of the
2029 notes.
If the exchange of 2012 notes for 2029 notes is treated as a
recapitalization for U.S. federal income tax purposes, you
should not recognize taxable gain or loss as a result of the
exchange, except that you will recognize gain in an amount equal
to the lesser of: (i) the excess, if any, of the issue
price (as described below) of the 2029 notes received in the
exchange over your adjusted tax basis in your 2012 notes, and
(ii) the fair market value of the principal amount of the
2029 notes you receive over the principal amount of the 2012
notes that you surrender in exchange therefor (such excess, if
any, is referred to herein as the excess principal
amount). For purposes of determining the amount of gain
recognized as a result of the exchange, the rules regarding the
determination of the principal amount of the 2029 notes and 2012
notes are uncertain and complex. You should consult your tax
advisor regarding the determination of the principal amount of
the 2029 notes that you receive in the exchange offer and the
2012 notes that you surrender in exchange therefor for purposes
of determining the amount (if any) of gain you would recognize
as a result of the exchange. Except
117
as discussed below, any recognized gain would generally be
treated as capital gain and would be long-term capital gain if
you held the 2012 notes for more than one year. If, however, you
purchased the 2012 notes at a market discount, any gain
recognized would be treated as ordinary income to the extent of
the market discount on the 2012 notes exchanged that accrued
during your period of ownership, unless you previously elected
to include market discount in income as it accrued for
U.S. federal income tax purposes. A 2012 note generally
will be considered to have been acquired with market discount if
the stated principal amount of the 2012 notes at the time of the
acquisition exceeded the holders initial tax basis in the
2012 notes (generally, its cost) by more than a statutory
de
minimis
amount. Market discount accrues on a ratable basis
unless a holder elects to accrue market discount using a
constant-yield method.
Your adjusted tax basis in a 2012 note should generally equal
the price you paid for the 2012 note, increased by market
discount, if any, previously included in income and reduced by
any bond premium previously amortized. Your aggregate initial
tax basis in the 2029 notes received in the exchange should
equal your adjusted tax basis in the 2012 notes that you
exchanged, increased by the amount of any gain you recognize on
the exchange. Your holding period for the 2029 notes (other than
the portion of 2029 notes that constitute the excess principal
amount described above) should include your holding period in
the 2012 notes exchanged therefor.
The 2029 notes received in the exchange offer that are treated
as comprising the excess principal amount, if any, will have an
initial tax basis equal to their fair market value, and you will
have a new holding period in such 2029 notes.
If the 2029 notes are considered to be publicly
traded property, as defined by the Treasury Regulations,
the issue price of the 2029 notes will be equal to
their fair market value on the date of the exchange. The 2029
notes will generally be considered to be publicly
traded property if, at any time during the
60-day
period ending 30 days after the date of the exchange, they
appear on a system of general circulation that provides a
reasonable basis to determine the fair market value of 2029
notes by disseminating either (i) recent price quotations
(including rates, yields, or other pricing information) of one
or more identified brokers, dealers or traders or
(ii) actual prices (including rates, yields, or other
pricing information) of recent sales transactions. We believe
that the 2029 notes will be considered publicly
traded for these purposes, and, thus, that the issue price
of the 2029 notes will be their fair market value on the date of
the exchange. The rules regarding the determination of issue
price are complex and highly detailed, however, and you should
consult your tax advisor regarding the determination of the
issue price of the 2029 notes.
The IRS could take positions with respect to the
characterization of the exchange contrary to those described in
the foregoing summary. For example, if either the 2029 notes or
2012 notes were not treated as securities, your exchange would
not qualify as a recapitalization and you would generally
recognize gain or loss with respect to your 2012 notes being
exchanged equal to the difference between: (i) the issue
price of the 2029 notes received and (ii) your adjusted tax
basis in the 2012 notes. Any such gain would generally be
treated as capital gain (subject to the potential application of
the market discount rules as described above), and any such loss
would generally be treated as capital loss. The deductibility of
capital losses is subject to limitations.
Regardless of whether the exchange of 2012 notes for 2029 notes
qualifies as a recapitalization, any amount received by you that
is attributable to accrued and unpaid interest on the 2012 notes
will be taxable as interest income if such amount had not been
included previously in your gross income for U.S. federal
income tax purposes.
Ownership
of the 2029 Notes
Accrual
of Interest
Under the contingent debt regulations, actual cash payments on
the 2029 notes, including payments of contingent interest, if
any, will not be reported separately as taxable income, but will
be taken into account
118
under such regulations. As discussed more fully below, the
effect of these contingent debt regulations will be to:
|
|
|
|
|
require you, regardless of your usual method of tax accounting,
to use the accrual method with respect to the 2029 notes;
|
|
|
|
require you to accrue original issue discount at the comparable
yield (as described below), which will be substantially in
excess of interest payments actually received by you; and
|
|
|
|
generally result in ordinary, rather than capital, treatment of
any gain, and to some extent loss, on the sale, exchange,
repurchase or redemption of the 2029 notes.
|
Subject to the adjustments described below under
Adjustments to Interest Accruals and Projected
Payments on the 2029 Notes, you will be required to accrue
an amount of original issue discount for U.S. federal
income tax purposes for each accrual period prior to and
including the maturity date of the 2029 notes equal to:
|
|
|
|
|
the product of: (i) the adjusted issue price (as defined
below) of the 2029 notes as of the beginning of the accrual
period, and (ii) the comparable yield (as defined below) of
the 2029 notes, adjusted for the length of the accrual period;
|
|
|
|
divided by the number of days in the accrual period; and
|
|
|
|
multiplied by the number of days during the accrual period that
you held the 2029 notes.
|
The initial issue price of a 2029 note will be determined as
described above under the heading The Exchange
of 2012 Notes for 2029 Notes. The adjusted issue price of
a 2029 note will be its initial issue price increased by any
original issue discount previously accrued, determined without
regard to any adjustments to original issue discount accruals
described below under the heading Adjustments
to Interest Accruals and Projected Payments on the 2029
Notes, and decreased by the projected amounts of any
payments previously scheduled to be made with respect to the
2029 notes.
As described above, and subject to the adjustments described
below under Adjustments to Interest Accruals
and Projected Payments on the 2029 Notes, you will be
required to include original issue discount in income each year,
regardless of your usual method of tax accounting, based on the
comparable yield of the 2029 notes. Pursuant to the contingent
debt regulations, we must determine the comparable yield of the
2029 notes based on the rate, as of the initial issue date, at
which we would issue a fixed-rate, non-convertible debt
instrument with no contingent payments but with terms and
conditions otherwise similar to the 2029 notes. Accordingly, we
have estimated that the comparable yield is an annual rate of
12.5%, compounded semi-annually. This estimate may differ from
the comparable yield we determine as of the initial issue date.
If the comparable yield were successfully challenged by the IRS,
the redetermined yield could be materially greater or less than
the comparable yield we have provided.
We are required to furnish to you the comparable yield and,
solely for tax purposes, a projected payment schedule that
includes the actual interest payments, if any, on the 2029 notes
and estimates the amount and timing of contingent interest
payments and payment upon maturity on the 2029 notes taking into
account the fair market value of the cash and common stock that
might be paid upon a conversion of the 2029 notes. You may
obtain the comparable yield and the projected payment schedule
by submitting a written request for them to us at General Cable
Corporation, 4 Tesseneer Drive, Highland Heights, Kentucky
41076-9753,
Attention: Chief Financial Officer. By exchanging your 2012
notes for the 2029 notes, you agree in the 2029 note indenture
to be bound by our determination of the comparable yield and
projected payment schedule.
The comparable yield and the projected payment schedule are
not provided for any purpose other than the determination of
your original issue discount and adjustments thereof in respect
of the 2029 notes and do not constitute a projection or
representation regarding the actual or expected amount of the
payments on a 2029 note.
119
Adjustments
to Interest Accruals and Projected Payments on the 2029
Notes
If the actual contingent payments made on the 2029 notes differ
from the projected contingent payments, adjustments to your
original issue discount accruals will be made for the
difference. If, during any taxable year, you receive actual
payments with respect to the 2029 notes for that taxable year
that in the aggregate exceed the total amount of projected
payments for the taxable year, you will incur a positive
adjustment equal to the amount of such excess. If you receive in
a taxable year actual payments with respect to the 2029 notes
for the taxable year that in the aggregate are less than the
amount of projected payments for that taxable year, you will
incur a negative adjustment equal to the amount of such deficit.
For these purposes, the payments in a taxable year include the
fair market value of our common stock received upon conversion
in that year.
If your initial tax basis in your 2029 notes differs from the
initial issue price of your 2029 notes (see the discussion above
under the heading The Exchange of 2012 Notes
for 2029 Notes), you will be required to reasonably
allocate such difference to the daily portions of original issue
discount that accrue on your 2029 notes or projected payments on
your 2029 notes in accordance with the provisions of the
contingent debt regulations. Generally, if your adjusted tax
basis exceeds the adjusted issue price of your 2029 note, the
portion of such excess allocated to a daily portion of original
issue discount or projected payment should be treated as a
negative adjustment on the date the daily portion accrues or the
payment is made. If your adjusted issue price exceeds your
adjusted tax basis of your 2029 note, the amount of such excess
allocated to a daily portion of original issue discount or
projected payment should be treated as a positive adjustment on
the date the daily portion accrues or payment is made. On the
date of an adjustment described in this paragraph, your adjusted
basis in your 2029 note should be reduced by the amount
described in this paragraph treated as a negative adjustment and
increased by the amount described in this paragraph treated as a
positive adjustment.
The amount, if any, by which the total positive adjustments on
your 2029 notes in a taxable year exceed total negative
adjustments on your 2029 notes in a taxable year will be treated
as additional interest for the taxable year. The amount, if any,
by which total negative adjustments on your 2029 notes in a
taxable year exceed total positive adjustments on your 2029
notes in a taxable year will be treated as follows:
|
|
|
|
|
first, a net negative adjustment will reduce the amount of
original issue discount required to be accrued in the current
taxable year;
|
|
|
|
second, any net negative adjustment that exceeds the amount of
original issue discount accrued in the current taxable year will
be treated as ordinary loss to the extent of your total prior
original issue discount inclusions with respect to the 2029
notes, reduced to the extent such prior original issue discount
was offset by prior negative adjustments; and
|
|
|
|
third, any excess net negative adjustment will be treated as a
regular negative adjustment in the succeeding taxable year.
|
The rules governing the accrual of interest on the 2029 notes
are extremely complex and you should consult your own tax
advisors regarding the proper accrual of interest and
adjustments thereto under the contingent debt regulations.
Sale,
Exchange, Conversion or Redemption
Upon the sale, exchange, conversion or redemption of a 2029
note, you will recognize gain or loss equal to the difference
between your amount realized and your adjusted tax basis in the
2029 notes. As a holder of a 2029 note, you agree to treat the
cash and fair market value of our common stock that you receive
on conversion as a contingent payment. Any gain recognized on a
2029 note generally will be treated as ordinary interest income.
Loss from the disposition of a 2029 note will be treated as
ordinary loss to the extent of your prior net original issue
discount inclusions with respect to the 2029 notes. Any loss in
excess of that amount will be treated as capital loss. The
deductibility of capital losses is subject to limitations.
Special rules apply in determining the adjusted tax basis of a
2029 note. Your initial tax basis in a 2029 note (as described
above under the heading The Exchange of 2012
Notes for 2029 Notes) will be increased by original issue
discount (without taking into account any adjustments other than
any positive
120
adjustments occurring as a result of a difference between your
adjusted tax basis in a 2029 note and the adjusted issue price
of a 2029 note) you previously accrued on the 2029 notes. Your
tax basis will also be reduced by the projected amount of any
payments previously scheduled to be made on the 2029 notes and
any negative adjustments occurring as a result of a difference
between your adjusted tax basis in a 2029 note and the adjusted
issue price of a 2029 note.
Your adjusted tax basis in the common stock received upon
conversion of a 2029 note will be equal to the then current fair
market value of such common stock. Your holding period for our
common stock received will commence on the day following the
conversion date.
Given the uncertain tax treatment of instruments such as the
2029 notes, you should contact your tax advisors concerning the
tax treatment on conversion of a 2029 note and the ownership of
the common stock.
Constructive
Distributions
The conversion ratio of the 2029 notes may be adjusted in
certain circumstances. Under Section 305(c) of the Code,
adjustments (or failures to make adjustments) that have the
effect of increasing your proportionate interest in our assets
or earnings may in some circumstances result in a deemed
distribution to you. Adjustments to the conversion rate made
pursuant to a bona fide reasonable adjustment formula that has
the effect of preventing the dilution of the interest of the
holders of the 2029 notes, however, will generally not be
considered to result in a deemed distribution to you. Certain of
the possible conversion rate adjustments provided in the 2029
notes (including, without limitation, adjustments in respect of
taxable dividends to holders of our common stock and as
discussed in Description of the 2029 Notes
Determination of Make Whole Premium) will not qualify as
being pursuant to a bona fide reasonable adjustment formula. If
such adjustments are made, you will be deemed to have received a
distribution even though you have not received any cash or
property as a result of such adjustments. Any deemed
distributions will be taxable as a dividend, return of capital,
or capital gain in accordance with the earnings and profits
rules under the Code. It is not clear whether a constructive
dividend deemed paid to non-corporate holders would be eligible
for the current preferential U.S. federal income rates
applicable to certain dividends. It is also unclear whether
corporate holders would be entitled to claim the dividends
received deduction with respect to any such constructive
dividends. You should consult your tax advisors concerning the
tax treatment of such constructive dividends that you receive.
U.S.
Federal Income Tax Consequences to Exchanging
Non-U.S.
Holders
The following is a summary of the material U.S. federal
income tax consequences that will apply to a
non-U.S. Holder.
Special rules may apply to certain
non-U.S. Holders
such as controlled foreign corporations and
passive foreign investment companies. Such
non-U.S. Holders
should consult their own tax advisors to determine the
U.S. federal, state, local and other tax consequences that
may apply to them.
The
Exchange of 2012 Notes for 2029 Notes
Subject to the discussion below with respect to accrued
interest, you will not be subject to U.S. federal income
tax on any gain recognized in the exchange (as described under
U.S. Federal Income Tax Consequences to
Exchanging U.S. Holders The Exchange of 2012
Notes for 2029 Notes), unless:
|
|
|
|
|
that gain is effectively connected with the conduct of a trade
or business in the United States by you (and, if required by an
applicable income tax treaty, is attributable to a
U.S. permanent establishment or fixed base in the case of
an individual); or
|
|
|
|
you are an individual who is present in the United States for
183 days or more in the taxable year of the exchange, and
certain other conditions are met.
|
An individual
non-U.S. Holder
described in the first bullet point above will be subject to
U.S. federal income tax on the net gain derived from the
sale at regular graduated U.S. federal income tax rates. An
individual
non-U.S. Holder
described in the second bullet point above will be subject to a
flat 30% U.S. federal income tax on the gain derived from
the exchange, which may be offset by U.S. source capital
losses, even though the
121
holder is not considered a resident of the United States. A
non-U.S. Holder
that is a foreign corporation and is described in the first
bullet point above will be subject to tax on gain under regular
graduated U.S. federal income tax rates and, in addition,
may be subject to a branch profits tax equal to 30% (or a lower
applicable treaty rate) of its earnings and profits for the
taxable year, subject to adjustments, that are effectively
connected with the foreign corporations conduct of a trade
or business in the United States.
Accrued
Interest
Payments made to you pursuant to the exchange that are
attributable to accrued interest on the 2012 notes will not be
subject to U.S. federal income or withholding tax, provided
that the withholding agent has received or receives, prior to
payment, appropriate documentation (generally, an IRS
Form W-8BEN
or a successor form) establishing that you are not a
U.S. person, unless:
|
|
|
|
|
you actually or constructively own 10% or more of the total
combined voting power of all classes of our capital stock that
are entitled to vote within the meaning of
Section 871(h)(3) of the Code;
|
|
|
|
you are a controlled foreign corporation that is,
directly or indirectly, related to us through stock ownership;
|
|
|
|
you are a bank whose receipt of interest on the 2029 notes is
described in Section 881(c)(3)(A) of the Code; or
|
|
|
|
such interest is effectively connected with your conduct of a
trade or business within the United States (in which case, so
long as you provide a properly-executed IRS
Form W-8ECI
(or successor form) to the withholding agent, you
(i) generally will not be subject to withholding tax, but
(ii) will be subject to U.S. federal income tax in the
same manner as a U.S. Holder (unless an applicable income
tax treaty provides otherwise), and if you are a corporation for
U.S. federal income tax purposes, you may also be subject
to a branch profits tax equal to 30% (or a lower applicable
treaty rate) of your earnings and profits for the taxable year,
subject to adjustments, that are effectively connected with your
conduct of a trade or business in the United States).
|
If you do not qualify for exemption from withholding tax with
respect to interest that is not effectively connected income,
you generally will be subject to withholding at a 30% rate (or
at a reduced rate or exempt from tax under an applicable income
tax treaty) on any payments made to you pursuant to the exchange
that are attributable to accrued interest. To claim the benefits
of a treaty, you must provide a properly executed IRS
Form W-8BEN
(or a successor form) prior to the payment. For purposes of
providing a properly-executed IRS
Form W-8BEN,
special procedures are provided under applicable Treasury
Regulations for payments through qualified foreign
intermediaries or certain financial institutions that hold
customers securities in the ordinary course of their trade
or business.
Ownership
of the 2029 Notes
Payments
with Respect to the 2029 Notes
Subject to the discussion of backup withholding and information
reporting below, payments of interest (including amounts taken
into income under the accrual rules described above under
U.S. Federal Income Tax Consequences to Exchanging
U.S. Holders Ownership of the 2029
Notes Accrual of Interest, a payment of cash
and common stock pursuant to a conversion, and any gain from the
sale or exchange of a 2029 note that is treated as interest for
this purpose) in respect of the 2029 notes will not be subject
to U.S. federal income tax or withholding tax under the
portfolio interest rule, provided that:
|
|
|
|
|
you do not actually or constructively own 10% or more of the
total combined voting power of all classes of our capital stock
that are entitled to vote within the meaning of
Section 871(h)(3) of the Code;
|
|
|
|
you are not a controlled foreign corporation that
is, directly or indirectly, related to us through stock
ownership;
|
122
|
|
|
|
|
you are not a bank whose receipt of interest (including original
issue discount) on the 2029 notes is described in
Section 881(c)(3)(A) of the Code;
|
|
|
|
our common stock continues to be actively traded within the
meaning of Section 871(h)(4)(c)(v)(I) of the Code and we are not
a U.S. real property holding
corporation; and
|
|
|
|
you: (i) provide your name and address and certify, under
penalties of perjury, that you are not a U.S. person (which
certification may be made on IRS
Form W-8BEN
(or other applicable form)); or (ii) hold your 2029 notes
through certain foreign intermediaries and satisfy the
certification requirements of applicable Treasury Regulations.
Special certification rules apply to holders that are
pass-through entities.
|
If the requirements described above are not satisfied, a 30%
withholding tax will apply to the gross amount of interest
(including original issue discount or other amounts treated as
interest) on the 2029 notes that is paid to you, unless, either:
(i) an applicable income tax treaty reduces or eliminates
such tax, and you claim the benefit of that treaty by providing
a properly completed and duly executed IRS
Form W-8BEN
(or suitable successor or substitute form) establishing
qualification for benefits under the treaty, or (ii) the
interest is effectively connected with your conduct of a trade
or business in the United States and you provide an appropriate
statement to that effect on a properly completed and duly
executed IRS
Form W-8ECI
(or suitable successor form).
If you are engaged in a U.S. trade or business and interest
(including original issue discount or other amounts treated as
interest) in respect of a 2029 note is effectively connected
with the conduct of that trade or business, you will be required
to pay U.S. federal income tax on that interest on a net
income basis (and the 30% withholding tax described above will
not apply provided the appropriate statement is provided to us)
generally in the same manner as a U.S. Holder. If you are
eligible for the benefits of an income tax treaty between the
United States and your country of residence, any interest income
that is effectively connected with a U.S. trade or business
will be subject to U.S. federal income tax in the manner
specified by the treaty and generally will only be subject to
U.S. federal income tax if: (i) such income is
attributable to a permanent establishment (or a fixed base in
the case of an individual) maintained by you in the United
States, and (ii) you claim the benefit of the treaty by
properly submitting an IRS
Form W-8BEN.
In addition, if you are a foreign corporation for
U.S. federal income tax purposes, you may be subject to a
branch profits tax equal to 30% (or a lower applicable treaty
rate) of your earnings and profits for the taxable year, subject
to adjustments, that are effectively connected with your conduct
of a trade or business in the United States.
Ownership
of the Common Stock
Dividends
on Shares of Common Stock and Constructive
Distributions
A 30% withholding tax will generally apply to any distributions
(including constructive dividends, as described above under
Tax Consequences to Exchanging
U.S. Holders Ownership of 2029
Notes Constructive Distributions) with respect
to shares of our common stock to you to the extent that the cash
and fair market value of the property distributed does not
exceed your pro rata share of our current and accumulated
earnings and profits, if any, unless, either: (i) an
applicable income tax treaty reduces or eliminates such tax, and
you claim the benefit of that treaty by providing a properly
completed and duly executed IRS
Form W-8BEN
(or suitable successor or substitute form) establishing
qualification for benefits under the treaty, or (ii) the
distributions are effectively connected with your conduct of a
trade or business in the United States and you provide an
appropriate statement to that effect on a properly completed and
duly executed IRS
Form W-8ECI
(or suitable successor form).
If you are engaged in a U.S. trade or business and
distributions with respect to our common stock are effectively
connected with the conduct of that trade or business, you will
be required to pay U.S. federal income tax on the
distributions (and the 30% withholding tax described above will
not apply provided the appropriate statement is provided to us)
generally in the same manner as a U.S. Holder. If you are
eligible for the benefits of an income tax treaty between the
United States and your country of residence, any income arising
from distributions that is effectively connected with a
U.S. trade or business will be subject to
123
U.S. federal income tax in the manner specified by the
treaty and generally will only be subject to U.S. federal
income tax if: (i) such income is attributable to a
permanent establishment (or a fixed base in the case of an
individual) maintained by you in the United States, and
(ii) you claim the benefit of the treaty by properly
submitting an IRS
Form W-8BEN.
In addition, if you are a foreign corporation for
U.S. federal income tax purposes, you may be subject to a
branch profits tax equal to 30% (or a lower applicable treaty
rate) of your earnings and profits for the taxable year, subject
to adjustments, that are effectively connected with your conduct
of a trade or business in the United States.
Sale,
Exchange or Other Taxable Disposition of the Common
Stock
You will not be subject to U.S. federal income tax on any
gain you realize upon a sale, exchange or other taxable
disposition of our common stock, unless:
|
|
|
|
|
that gain is effectively connected with the conduct of a trade
or business in the United States by you (and, if required by an
applicable income tax treaty, is attributable to a
U.S. permanent establishment or fixed base in the case of
an individual);
|
|
|
|
you are an individual who is present in the United States for
183 days or more in the taxable year of that disposition,
and certain other conditions are met; or
|
|
|
|
we are or have been a U.S. real property holding
corporation for U.S. federal income tax purposes.
|
An individual
non-U.S. Holder
described in the first bullet point above will be subject to
U.S. federal income tax on the net gain derived from the
sale at regular graduated U.S. federal income tax rates. An
individual
non-U.S. Holder
described in the second bullet point above will be subject to a
flat 30% U.S. federal income tax on the gain derived from
the sale, exchange, redemption or other disposition, which may
be offset by U.S. source capital losses, even though the
holder is not considered a resident of the United States. A
non-U.S. Holder
that is a foreign corporation and is described in the first
bullet point above will be subject to tax on gain under regular
graduated U.S. federal income tax rates and, in addition,
may be subject to a branch profits tax equal to 30% (or a lower
applicable treaty rate) of its earnings and profits for the
taxable year, subject to adjustments, that are effectively
connected with the foreign corporations conduct of a trade
or business in the United States.
Generally, a corporation is a U.S. real property
holding corporation if the fair market value of its
U.S. real property interests equals or exceeds
50% of the sum of the fair market value of its worldwide real
property interests plus its other assets used or held for use in
a trade or business. We believe that we are not currently, and
we do not anticipate becoming, a U.S. real property holding
corporation.
Backup
Withholding and Information Reporting
In general, if you are a U.S. Holder with respect to the
2012 notes, the 2029 notes or our common stock, information
reporting requirements may apply to the exchange of 2012 notes
for 2029 notes (and cash, if any), and such requirements will
generally apply to all payments we make to you with respect to,
and the proceeds from a sale of, a 2029 note or share of common
stock (unless you are an exempt recipient such as a
corporation). A backup withholding tax may apply to such
payments if you fail to provide a taxpayer identification number
or a certification of exempt status, or if you fail to report in
full dividend and interest income.
In general, if you are a
non-U.S. Holder,
you will not be subject to backup withholding with respect to
the exchange of 2012 notes for 2029 notes (and cash, if any) and
payments that we make to you with respect to the 2029 notes or
shares of our common stock, provided that we do not have actual
knowledge or reason to know that you are a U.S. person and
you have provided a validly completed IRS
Form W-8BEN
(or suitable successor or substitute form) establishing that you
are a
non-U.S. Holder.
We must report annually to the IRS and to each
non-U.S. holder
the amount of interest and dividends paid to such holder and the
tax withheld with respect to such interest and dividends,
regardless of whether withholding was required. Copies of the
information returns reporting such interest and dividends and
withholding may also be made available to the
124
tax authorities in the country in which the
non-U.S. Holder
resides under the provisions of an applicable income tax treaty.
In addition, if you are a
non-U.S. Holder,
payments of the proceeds of a sale of a 2012 note, 2029 note or
share of our common stock within the United States or conducted
through certain
U.S.-related
financial intermediaries may be subject to both backup
withholding and information reporting unless you certify under
penalties of perjury that you are a
non-U.S. Holder
(and the payor does not have actual knowledge or reason to know
that you are a U.S. person) or you otherwise establish an
exemption.
Any amounts withheld under the backup withholding rules will be
allowed as a refund or a credit against your U.S. federal
income tax liability provided the required information is
furnished to the IRS.
Tax
Consequences to Non-Exchanging Holders
Because the terms of the 2012 notes will not be modified in
connection with the exchange offer, we believe that the exchange
of some of the 2012 notes for 2029 notes should not have any
direct U.S. federal income tax consequences for holders of
the 2012 notes who do not tender their 2012 notes or whose 2012
notes are not accepted for exchange in the exchange offer.
125
ERISA
CONSIDERATIONS
Each person considering the use of plan assets of a pension,
profit-sharing or other employee benefit plan, individual
retirement account, or other retirement plan, account or
arrangement to acquire or hold our 2029 notes should consider
whether an investment in our 2029 notes, as well as the
underlying common stock, would be consistent with the documents
and instruments governing the plan, and whether the investment
would involve a prohibited transaction under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended,
or ERISA, or Section 4975 of the Code.
Section 406 of ERISA and Section 4975 of the Code, as
applicable, prohibit plans subject to Title I of ERISA or
Section 4975 of the Code, including entities such as
collective investment funds, partnerships and separate accounts
or insurance company pooled separate accounts or insurance
company general accounts whose underlying assets include the
assets of such plans, from engaging in certain transactions
involving plan assets with persons who are
parties in interest, under ERISA or
disqualified persons, under the Code with respect to
the plan. A violation of these prohibited transaction rules may
result in civil penalties or other liabilities under ERISA and
an excise tax under Section 4975 of the Code for those
persons and penalties and liabilities under ERISA and the Code
for the fiduciary of the plan, unless exemptive relief is
available under an applicable statutory, regulatory or
administrative exemption. Certain plans including those that are
governmental plans (as defined in Section 3(32) of ERISA),
certain church plans (as defined in Section 3(33) of ERISA
and Section 414(e) of the Code with respect to which the
election provided by Section 410(d) of the Code has not
been made), and foreign plans (as described in
Section 4(b)(4) of ERISA) are not subject to the prohibited
transaction requirements of Title I of ERISA or
Section 4975 of the Code but may be subject to similar
provisions under other applicable federal, state, local, foreign
or other regulations, rules or laws.
The acquisition or holding of our 2029 notes (or the underlying
common stock) by a plan with respect to which we, the exchange
agent, the information agent, the dealer managers or certain of
our or their affiliates is or becomes a party in interest may
constitute or result in prohibited transactions under ERISA or
Section 4975 of the Code, unless such securities are
acquired or held pursuant to and in accordance with an
applicable exemption. In this regard, the U.S. Department
of Labor has issued prohibited transaction class exemptions, or
PTCEs, that may apply to the acquisition and holding of the 2029
notes, such as
PTCE 96-23,
PTCE 95-60,
PTCE 91-38,
PTCE 90-1
and
PTCE 84-14.
In addition, Section 408(b)(17) of ERISA and
Section 4975(d)(20) of the Code, or the service
provider exemption, provide limited relief from the
prohibited transaction provisions of ERISA and Section 4975
of the Code for certain transactions with non-fiduciary service
providers for transactions that are for adequate consideration.
There can be no assurance that all of the conditions of any such
exemptions will be satisfied.
Each holder of our 2029 notes, the underlying common stock or
any interest therein will be deemed to have represented and
warranted, on each day from the date on which the holder
acquires its interest in our 2029 notes to the date on which the
holder disposes of its interest in our 2029 notes, by its
acquisition or holding of our 2029 notes or any interest therein
that (a) its acquisition and holding of our 2029 notes is
not made on behalf of or with plan assets of any
Plan, or (b) if its acquisition and holding of our 2029
notes is made on behalf of or with plan assets of a
Plan, then its acquisition and holding of our 2029 notes will
not result in a non-exempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code or a
similar violation of any applicable similar laws.
Due to the complexity of these rules and the penalties that may
be imposed upon persons involved in
non-exempt
prohibited transactions, it is important that fiduciaries or
other persons considering acquiring our 2029 notes on behalf of
or with plan assets of any plan covered by ERISA or
the Code consult with their counsel regarding the potential
applicability of ERISA, Section 4975 of the Code and any
similar laws to such investment as well as the availability of
exemptive relief under any of the PTCEs listed above or any
other applicable exemption.
126
INTERESTS
OF DIRECTORS AND EXECUTIVE OFFICERS
To our knowledge, none of our directors, executive officers or
controlling persons, or any of their affiliates, beneficially
own any 2012 notes.
THE
DEALER MANAGERS
The dealer managers for the exchange offer are Goldman,
Sachs & Co. and J.P. Morgan Securities Inc. The
respective addresses and telephone numbers for the dealer
managers are set forth on the back cover of this prospectus. The
dealer managers for the exchange offer will perform services
customarily provided by investment banking firms acting as
dealer managers of exchange offers of a like nature, including,
but not limited to, soliciting tenders of 2012 notes pursuant to
the exchange offer and communicating generally regarding the
exchange offer with brokers, dealers, commercial banks and trust
companies and other persons, including the holders of the 2012
notes. As compensation for their services, we have agreed to pay
the dealer managers an aggregate fee in cash equal to 2.0% of
the aggregate principal amount of the 2012 notes exchanged in
the exchange offer, and we may pay the dealer managers an
additional discretionary fee equal to 0.75% of the aggregate
principal amount of the 2012 notes exchanged in the exchange
offer. The dealer managers will also be reimbursed for their
reasonable
out-of-pocket
expenses incurred in performing their services, including
reasonable fees and expenses of legal counsel. We have also
agreed to indemnify the dealer managers against certain claims
and liabilities, including those that may arise under the
U.S. federal securities laws.
Certain of the dealer managers and their respective affiliates
have rendered, and the dealer managers may in the future render,
various investment banking, lending and commercial banking
services and other advisory services to us and our subsidiaries.
Certain of the dealer managers have received, and the dealer
managers may in the future receive, customary compensation from
us and our subsidiaries for such services.
The dealer managers and their respective affiliates may from
time to time hold 2012 notes, shares of our common stock and
other securities of ours in their proprietary accounts, which
holdings may be substantial. Certain of the dealer managers and
their respective affiliates currently hold 2012 notes, and, to
the extent they own 2012 notes in these accounts at the time of
the exchange offer, the dealer managers and their respective
affiliates may tender such 2012 notes for exchange pursuant to
the exchange offer. During the course of the exchange offer and
subject to applicable law, the dealer managers and their
respective affiliates may trade 2012 notes and shares of our
common stock or effect transactions in other securities of ours
for their own account or for the accounts of their customers. As
a result, the dealer managers and their respective affiliates
may hold a long or short position in the 2012 notes, our common
stock or other of our securities.
THE
EXCHANGE AGENT AND THE INFORMATION AGENT
D.F. King & Co., Inc. has been appointed exchange
agent and information agent for the exchange offer. We have
agreed to pay D.F. King reasonable and customary fees for its
services as such and will reimburse D.F. King for its reasonable
out-of-pocket
expenses. Please direct the following to D.F. King at the
addresses and telephone numbers set forth on the back cover of
this prospectus:
|
|
|
|
|
requests for additional copies of this prospectus or related
materials;
|
|
|
|
completed letters of transmittal; and
|
|
|
|
requests for assistance in connection with the exchange offer.
|
DELIVERY OF A LETTER OF TRANSMITTAL OR TRANSMISSION OF
INSTRUCTIONS TO AN ADDRESS OR FACSIMILE NUMBER OTHER THAN
THAT OF THE EXCHANGE AGENT AS SET FORTH ON THE BACK COVER OF
THIS PROSPECTUS IS NOT A VALID DELIVERY.
127
FEES AND
EXPENSES
Fees and expenses in connection with the exchange offer are
estimated to be approximately $14.5 million. We will bear
the cost of all fees and expenses relating to the exchange
offer. Tendering holders of 2012 notes will not be required to
pay any expenses of soliciting tenders in the exchange offer,
including any fee or commission payable to the dealer managers.
However, if a tendering holder handles the transactions through
its broker, dealer, commercial bank, trust company or other
institution, such holder may be required to pay brokerage fees
or commissions.
We are making the principal solicitation by mail. However, where
permitted by applicable law, additional solicitations may be
made by facsimile, telephone,
e-mail,
other electronic communication or in person by the dealer
managers, as well as by our and our affiliates officers
and employees.
LEGAL
MATTERS
The validity of the 2029 notes to be issued in the exchange
offer will be passed upon by Blank Rome LLP, New York, New
York. The validity of the 2029 notes to be issued in the
exchange offer will be passed upon for the dealer managers by
Simpson Thacher & Bartlett LLP, New York, New York.
EXPERTS
The consolidated financial statements and the related financial
statement schedule for the year ended December 31, 2008
incorporated into this prospectus by reference from our Current
Report on
Form 8-K
filed with the SEC on August 12, 2009, and the
effectiveness of our internal control over financial reporting
incorporated into this prospectus by reference from our Annual
Report on
Form 10-K
filed with the SEC on March 2, 2009, have been audited by
Deloitte & Touche LLP, an independent registered
public accounting firm, as stated in their reports (which
reports (1) express an unqualified opinion on the
consolidated financial statements and financial statement
schedule and includes an explanatory paragraph regarding the
retrospective application of Financial Accounting Standards
Board (FASB) Staff Position No. APB
14-1,
Accounting for Convertible Debt Instruments that May be
Settled in Cash upon Conversion (Including Partial Cash
Settlement)
, FASB Staff Position
EITF 03-6-1,
Determining Whether Instruments Granted in Share-Based
Payment Transactions Are Participating Securities
, and
Statement of Financial Accounting Standards (SFAS) No. 160,
Noncontrolling Interests in Consolidated Financial
Statements
, which became effective January 1, 2009 and
the adoption of FASB Interpretation No. 48,
Accounting
for Uncertainty in Income Taxes an Interpretation of
SFAS No. 109
, in 2007, and SFAS No. 158,
Employers Accounting for Defined Benefit Pension and
Other Postretirement Benefit Plans an amendment of
FASB Statements No. 87, 88, 106 and 132(R)
, in 2006 and
(2) express an unqualified opinion on the effectiveness of
internal control over financial reporting), which are
incorporated herein by reference. Such financial statements and
financial statement schedule have been so incorporated in
reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
WHERE YOU
CAN FIND MORE INFORMATION
We have filed with the SEC a registration statement on
Form S-4
under the Securities Act to register the offer and exchange of
the 2029 notes and the common stock issuable upon conversion of
the 2029 notes. This prospectus is a part of that registration
statement, which includes additional information not contained
in this prospectus. Pursuant to
Rule 13e-4
under the Exchange Act, we have filed with the SEC an issuer
tender offer statement on Schedule TO that contains
additional information with respect to the exchange offer.
We file annual, quarterly and current reports, proxy statements
and other information with the SEC. The reports, statements and
other information that we file electronically with SEC are
available to the public on the Internet at the SECs
website at
http://www.sec.gov.
Copies of certain information filed by us with the SEC are also
available on our website at
http://www.generalcable.com.
This reference is an inactive hyperlink, and, except as to
certain of our SEC filings appearing on our website that are
incorporated by reference into this prospectus, information on
our website is neither a part of, nor is it incorporated by
reference into, this prospectus.
128
You may also read and copy any document we file with the SEC at
its Public Reference Room, located at 100 F Street,
N.E., Washington, D.C. 20549. You may obtain information on
the operation of the Public Reference Room by calling the SEC at
(800) SEC-0330. Because our common stock is listed on the
New York Stock Exchange, you may also inspect reports, proxy
statements and other information about us at the offices of the
New York Stock Exchange, 20 Broad Street, New York,
New York 10005.
This prospectus does not contain all of the information included
in the registration statement or the Schedule TO, or the
exhibits to such filings. We strongly encourage you to read
carefully the registration statement, the Schedule TO and
the exhibits to such filings.
No dealer, salesperson or other person has been authorized to
give any information or to make any representation not contained
in this prospectus or in the Schedule TO, and, if given or
made, such information or representation may not be relied upon
as having been authorized by us or the dealer managers.
INCORPORATION
OF CERTAIN DOCUMENTS BY REFERENCE
The SECs rules allow us to incorporate by
reference certain information into this prospectus. This
means that we can disclose important information to you,
including business and financial information, by referring you
to other documents. Any information referred to in this way is
considered part of this prospectus except to the extent updated
or superseded by information contained in this prospectus or in
documents incorporated by reference into this prospectus. Any
reports filed by us with the SEC after the date of the filing
and effectiveness of the registration statement of which this
prospectus forms a part and before the date that the offering of
the securities is terminated or expires, will automatically
update and, where applicable, supersede any information
contained in this prospectus or incorporated by reference in
this prospectus.
We incorporate by reference into this prospectus the following
documents filed with the SEC:
|
|
|
|
|
Our Annual Report on
Form 10-K
(File
No. 1-12983)
for the year ended December 31, 2008, filed on
March 2, 2009, as amended by:
|
|
|
|
|
|
Amendment No. 1 on
Form 10-K/A
filed on May 8, 2009; and
|
|
|
|
the portion of our definitive Proxy Statement for the 2009
Annual Meeting of Stockholders (File
No. 1-12983),
filed on April 17, 2009, specifically incorporating by
reference certain information into Items 10 (Directors and
Officers), 11 (Executive Compensation), 12 (Security Ownership
of Certain Beneficial Owners and Management) and 13 (Certain
Relationships and Related Transactions) thereof.
|
|
|
|
|
|
Our Quarterly Report on
Form 10-Q
(File
No. 1-12983)
for the fiscal quarter ended April 3, 2009, filed on
May 8, 2009.
|
|
|
|
Our Quarterly Report on
Form 10-Q
(File
No. 1-12983)
for the fiscal quarter ended July 3, 2009, filed on
August 12, 2009.
|
|
|
|
Our Current Reports on
Form 8-K
(File
No. 1-12983)
filed June 1, 2009, August 12, 2009, September 3,
2009 and October 27, 2009 (other than any information
contained in these reports that has been furnished to the SEC,
which information is not incorporated by reference into this
prospectus).
|
|
|
|
The description of our common stock, filed in our Registration
Statement on
Form 8-A
(File
No. 1-12983),
filed on May 13, 1997, pursuant to Section 12(b) of
the Exchange Act, as incorporated by reference from our
registration statement on
Form S-1
(File No.
333-22961),
filed on March 7, 1997, as amended, and any amendment or
report for the purpose of updating such description.
|
|
|
|
All documents filed by us under Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act after the date of this prospectus
and before the termination of the offering of the common stock
underlying the 2029 notes, all of which are being registered
hereby.
|
We will provide without charge to each person to whom this
prospectus is delivered, upon his or her written or oral
request, a copy of the filed documents referred to above,
excluding exhibits, unless they are specifically incorporated by
reference into those documents. You can request those documents
from our Vice President of Investor Relations, 4 Tesseneer
Drive, Highland Heights, Kentucky
41076-9753,
telephone
(859) 572-8000.
129
The
exchange agent and information agent for the exchange offer
is:
D.F.
King & Co., Inc.
48
Wall Street, 22nd Floor
New York, New York 10005
Banks and
Brokers call:
(212) 269-5550
All Others Call Toll-free:
(800) 488-8035
By
Facsimile:
(For Eligible Institutions Only)
(212) 809-8838
Attn: Mark Fahey
Confirm by Telephone:
(212) 269-5550
Any requests for additional copies of this prospectus and the
related materials may be directed to the information agent at
the addresses and telephone numbers set forth above.
Other requests for information relating to the exchange offer
may be directed to the dealer managers at their respective
addresses and telephone numbers set forth below.
The
dealer managers for the exchange offer are:
|
|
|
Goldman, Sachs &
Co.
Liability Management Group
One New York Plaza,
48
th
Floor
New York, New York 10004
(877) 686-5059
(toll-free)
(212) 902-5183
(collect)
|
|
J.P. Morgan
Convertible Bond Desk
383 Madison Avenue,
5
th
Floor
New York, New York 10179
(800) 261-5767 (toll-free)
(212) 622-2781 (collect)
|
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
Item 20.
|
Indemnification
of Directors and Officers.
|
Pursuant to the authority conferred by Section 102 of the
General Corporation Law of the State of Delaware, as amended
(the DGCL), Article VII of General Cable
Corporations amended and restated certificate of
incorporation, as amended (the Charter), contains
provisions that eliminate personal liability of members of
General Cable Corporations board of directors for
violations of their fiduciary duty of care. Neither the DGCL nor
the Charter, however, limits the liability of a director for
breaching his duty of loyalty, failing to act in good faith,
engaging in intentional misconduct or knowingly violating a law,
paying a dividend or approving a stock repurchase under
circumstances where such payment or repurchase is not permitted
under the DGCL, or obtaining an improper personal benefit.
Article VII of the Charter provides that if the DGCL is
amended to authorize corporate action further eliminating or
limiting the personal liability of directors, the liability of
General Cable Corporations directors shall be eliminated
or limited to the fullest extent permitted by the DGCL, as so
amended.
In accordance with Section 145 of the DGCL, which provides
for the indemnification of directors, officers and employees
under certain circumstances, Article XIV of General Cable
Corporations amended and restated by-laws (the
Bylaws) provides that General Cable Corporation is
obligated to indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or
completed action, suit or proceeding (other than an action by or
in the right of General Cable Corporation in which such person
has been adjudged liable to the General Cable Corporation) by
reason of the fact that he is or was a director, officer or
employee of General Cable Corporation, or is or was a director,
officer or employee of General Cable Corporation serving at the
request of the General Cable Corporation as a director, officer,
employee or agent or another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise
against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed
to the best interests of General Cable Corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe his conduct was unlawful. In the case of any
action, suit or proceeding by or in the right of General Cable
Corporation in which a claim, issue or matter as to which such
person shall have been adjudged to be liable to General Cable
Corporation, such person shall be indemnified only to the extent
that the Court of Chancery of the State of Delaware or the court
in which such action or suit was brought has determined that
such person is fairly and reasonably entitled to indemnity for
such expenses that such court shall deem proper.
General Cable Corporation currently maintains insurance policies
that provide coverage pursuant to which it will be reimbursed
for amounts it may be required or permitted by law to pay to
indemnify directors and officers.
The warranties, representations and covenants contained in any
of the agreements included herein or which appear as exhibits
hereto should not be relied upon by buyers, sellers or holders
of our securities and are not intended as warranties,
representations or covenants to any individual or entity except
as specifically set forth in such agreement.
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description
|
|
|
3
|
.1
|
|
Amended and Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference to
Exhibit 3.1 to Post Effective Amendment No. 1 to the
Registration Statement on
Form S-4
(File
No. 333-143017)
of the Company filed with the Securities and Exchange Commission
on June 11, 2007).
|
|
3
|
.2
|
|
Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3 to the Companys Current Report
on
Form 8-K
filed with the Securities and Exchange Commission on
December 19, 2008 (File
No. 1-12983)).
|
|
4
|
.1
|
|
Specimen Common Stock Certificate.
|
II-1
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description
|
|
|
4
|
.2
|
|
Indenture, dated as of October 2, 2007, by and among the
Company, the subsidiary guarantors named therein and U.S. Bank
National Association, as Trustee, with respect to the 2012 notes
and related guarantees (incorporated by reference to
Exhibit 4.1 to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
October 2, 2007 (File No.
1-12983)).
|
|
4
|
.3
|
|
First Supplemental Indenture, dated as of October 31, 2007,
with respect to the 2012 notes and related guarantees
(incorporated by reference to Exhibit 4.3 to the Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
November 1, 2007 (File No.
1-12983)).
|
|
4
|
.4
|
|
Second Supplemental Indenture, dated as of April 18, 2008,
with respect to the 2012 notes and related guarantees
(incorporated by reference to Exhibit 4.3 to the Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
April 21, 2008 (File No.
1-12983)).
|
|
4
|
.5
|
|
Third Supplemental Indenture, dated as of September 2,
2009, with respect to the 2012 notes and related guarantees
(incorporated by reference to Exhibit 4.3 to the Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
September 3, 2009 (File No.
1-12983)).
|
|
4
|
.6
|
|
Form of 2012 note (included in Exhibit 4.2).
|
|
4
|
.7
|
|
Form of Guarantee of obligations under 2012 notes (included in
Exhibit 4.2).
|
|
4
|
.8
|
|
Form of Indenture, by and between the Company and U.S. Bank
National Association, as Trustee, with respect to the 2029 notes.
|
|
4
|
.9
|
|
Form of 2029 note (included in Exhibit 4.8).
|
|
5
|
.1
|
|
Opinion of Blank Rome LLP.
|
|
8
|
.1
|
|
Tax opinion of Blank Rome LLP.
|
|
12
|
.1
|
|
Computation of Ratio of Earnings to Fixed Charges (incorporated
by reference to Exhibit 99.1 to the Companys Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
August 12, 2009 (File
No. 1-12983)).
|
|
12
|
.2
|
|
Computation of Ratio of Earnings to Fixed Charges (incorporated
by reference to Exhibit 12.1 to the Companys
Quarterly Report on
Form 10-Q
for the quarter ended July 3, 2009 (File
No. 1-12983),
as filed with the Securities and Exchange Commission on
August 12, 2009).
|
|
23
|
.1
|
|
Consent of Deloitte & Touche LLP.
|
|
23
|
.2
|
|
Consent of Blank Rome LLP (included in Exhibits 5.1 and
8.1).
|
|
24
|
.1
|
|
Powers of Attorney (included in the signature page).
|
|
24
|
.2*
|
|
Power of Attorney of John E. Welsh, III.
|
|
25
|
.1
|
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank National Association, as Trustee
under the Indenture with respect to the 2029 notes.
|
|
99
|
.1
|
|
Form of Letter of Transmittal.
|
|
99
|
.2
|
|
Form of Notice of Withdrawal.
|
|
99
|
.3
|
|
Dealer Managers Agreement, dated as of October 27, 2009, by
and among the Company, Goldman, Sachs & Co. and
J.P. Morgan Securities Inc.
|
|
99
|
.4
|
|
First Amendment to Third Amended and Restated Credit Agreement,
effective as of April 28, 2008, by and among General Cable
Industries, Inc., as borrower, the Company and those certain
other subsidiaries of the Company party thereto, as guarantors,
the issuing banks, the lenders and GE Business Financial
Services Inc., as administrative agent for the lenders,
collateral agent and security trustee.
|
|
99
|
.5
|
|
Second Amendment to Third Amended and Restated Credit Agreement,
effective as of October 26, 2009, by and among General
Cable Industries, Inc., as borrower, the Company and those
certain other subsidiaries of the Company party thereto, as
guarantors, the issuing banks, the lenders and GE Business
Financial Services Inc., as administrative agent for the
lenders, collateral agent and security trustee.
|
|
|
|
*
|
|
To be filed by amendment.
|
(b)
Financial Statement Schedules
1.1. Schedule II Valuation and Qualifying
Accounts (incorporated by reference to the Companys Annual
Report on Form
10-K/A
for
the fiscal year ended December 31, 2008 (File No.
1-12983),
as
filed with the Securities and Exchange Commission on May 8,
2009).
II-2
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the Calculation of
Registration Fee table in the effective registration
statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(4) That, for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrants
annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in
this registration statement shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(5) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final
adjudication of such issue.
(6) To respond to requests for information that is
incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11, or 13 of this Form, within one business
day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means.
This includes information contained in documents filed
subsequent to the effective date of the registration statement
through the date of responding to the request.
(7) To supply by means of a post-effective amendment all
information concerning a transaction that was not the subject of
and included in the registration statement when it became
effective.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Highland Heights, Commonwealth of
Kentucky, on the 27th day of October, 2009.
GENERAL CABLE CORPORATION
Robert J. Siverd
Executive Vice President,
General Counsel and Secretary
POWER OF
ATTORNEY
*
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Robert J. Siverd and
Brian J. Robinson, and each of them, his true and lawful
attorneys-in-fact and agents, with full power of substitution
and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments
(including, without limitation, post-effective amendments) to
this Registration Statement and any registration statement filed
under Rule 462 under the Securities Act of 1933, as
amended, and to file the same, with all exhibits thereto, and
other documents in connection therewith, with authority to do
and perform each and every act and the requisite and necessary
to be done in and about the premises as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitute or substitutes, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933 this
registration statement has been signed below by the following
persons in the capacities of General Cable Corporation and on
the dates indicated:
|
|
|
|
|
|
|
Signatures
|
|
Title
|
|
Date
|
|
|
|
|
|
|
/s/ Gregory
B. Kenny
Gregory
B. Kenny
|
|
Director, President and
Chief Executive Officer
(Principal Executive Officer)
|
|
October 27, 2009
|
|
|
|
|
|
/s/ Brian
J. Robinson
Brian
J. Robinson
|
|
Executive Vice President,
Chief Financial Officer and Treasurer
(Principal Financial and
Accounting Officer)
|
|
October 27, 2009
|
|
|
|
|
|
/s/ Robert
J. Siverd
Robert
J. Siverd
|
|
Executive Vice President,
General Counsel and Secretary
|
|
October 27, 2009
|
|
|
|
|
|
/s/ Gregory
E. Lawton
Gregory
E. Lawton
|
|
Director
|
|
October 27, 2009
|
|
|
|
|
|
/s/ Craig
P. Omtvedt
Craig
P. Omtvedt
|
|
Director
|
|
October 27, 2009
|
|
|
|
|
|
/s/ Robert
A. Smialek
Robert
A. Smialek
|
|
Director
|
|
October 27, 2009
|
|
|
|
|
|
/s/ John
E. Welsh, III
John
E.
Welsh, III
*
|
|
Director
|
|
October 27, 2009
|
|
|
|
*
|
|
The Power of Attorney with respect to this signatory will be
filed by amendment to this Registration Statement in lieu of the
Power of Attorney set forth herein.
|
II-4
EXHIBIT INDEX
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description
|
|
|
3
|
.1
|
|
Amended and Restated Certificate of Incorporation of the
Company, as amended (incorporated by reference to
Exhibit 3.1 to Post Effective Amendment No. 1 to the
Registration Statement on
Form S-4
(File
No. 333-143017)
of the Company filed with the Securities and Exchange Commission
on June 11, 2007).
|
|
3
|
.2
|
|
Amended and Restated By-Laws of the Company (incorporated by
reference to Exhibit 3 to the Companys Current Report
on
Form 8-K
filed with the Securities and Exchange Commission on
December 19, 2008 (File No. 1-12983)).
|
|
4
|
.1
|
|
Specimen Common Stock Certificate.
|
|
4
|
.2
|
|
Indenture, dated as of October 2, 2007, by and among the
Company, the subsidiary guarantors named therein and U.S. Bank
National Association, as Trustee, with respect to the 2012 notes
and related guarantees (incorporated by reference to
Exhibit 4.1 to the Current Report on
Form 8-K
filed with the Securities and Exchange Commission on
October 2, 2007 (File No. 1-12983)).
|
|
4
|
.3
|
|
First Supplemental Indenture, dated as of October 31, 2007,
with respect to the 2012 notes and related guarantees
(incorporated by reference to Exhibit 4.3 to the Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
November 1, 2007 (File No. 1-12983)).
|
|
4
|
.4
|
|
Second Supplemental Indenture, dated as of April 18, 2008,
with respect to the 2012 notes and related guarantees
(incorporated by reference to Exhibit 4.3 to the Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
April 21, 2008 (File No. 1-12983)).
|
|
4
|
.5
|
|
Third Supplemental Indenture, dated as of September 2,
2009, with respect to the 2012 notes and related guarantees
(incorporated by reference to Exhibit 4.3 to the Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
September 3, 2009 (File No. 1-12983)).
|
|
4
|
.6
|
|
Form of 2012 note (included in Exhibit 4.2).
|
|
4
|
.7
|
|
Form of Guarantee of obligations under 2012 notes (included in
Exhibit 4.2).
|
|
4
|
.8
|
|
Form of Indenture, by and between the Company and U.S. Bank
National Association, as Trustee, with respect to the 2029 notes.
|
|
4
|
.9
|
|
Form of 2029 note (included in Exhibit 4.8).
|
|
5
|
.1
|
|
Opinion of Blank Rome LLP.
|
|
8
|
.1
|
|
Tax opinion of Blank Rome LLP.
|
|
12
|
.1
|
|
Computation of Ratio of Earnings to Fixed Charges (incorporated
by reference to Exhibit 99.1 to the Companys Current
Report on
Form 8-K
filed with the Securities and Exchange Commission on
August 12, 2009 (File
No. 1-12983)).
|
|
12
|
.2
|
|
Computation of Ratio of Earnings to Fixed Charges (incorporated
by reference to Exhibit 12.1 to the Companys
Quarterly Report on
Form 10-Q
for the quarter ended July 3, 2009 (File
No. 1-12983),
as filed with the Securities and Exchange Commission on
August 12, 2009).
|
|
23
|
.1
|
|
Consent of Deloitte & Touche LLP.
|
|
23
|
.2
|
|
Consent of Blank Rome LLP (included in Exhibits 5.1 and
8.1).
|
|
24
|
.1
|
|
Powers of Attorney (included in the signature page).
|
|
24
|
.2*
|
|
Power of Attorney of John E. Welsh, III.
|
|
25
|
.1
|
|
Form T-1
Statement of Eligibility under the Trust Indenture Act of
1939, as amended, of U.S. Bank National Association, as Trustee
under the Indenture with respect to the 2029 notes.
|
|
99
|
.1
|
|
Form of Letter of Transmittal.
|
|
99
|
.2
|
|
Form of Notice of Withdrawal.
|
E-1
|
|
|
|
|
Exhibit
|
|
|
No.
|
|
Description
|
|
|
99
|
.3
|
|
Dealer Managers Agreement, dated as of October 27, 2009, by
and among the Company, Goldman, Sachs & Co. and
J.P. Morgan Securities Inc.
|
|
99
|
.4
|
|
First Amendment to Third Amended and Restated Credit Agreement,
effective as of April 28, 2008, by and among General Cable
Industries, Inc., as borrower, the Company and those certain
other subsidiaries of the Company party thereto, as guarantors,
the issuing banks, the lenders and GE Business Financial
Services Inc., as administrative agent for the lenders,
collateral agent and security trustee.
|
|
99
|
.5
|
|
Second Amendment to Third Amended and Restated Credit Agreement,
effective as of October 26, 2009, by and among General
Cable Industries, Inc., as borrower, the Company and those
certain other subsidiaries of the Company party thereto, as
guarantors, the issuing banks, the lenders and GE Business
Financial Services Inc., as administrative agent for the
lenders, collateral agent and security trustee.
|
|
|
|
*
|
|
To be filed by amendment
|
E-2
Exhibit 4.8
GENERAL CABLE CORPORATION, as Issuer,
and
U.S. BANK NATIONAL ASSOCIATION, as Trustee
INDENTURE
Dated as of November [
], 2009
Subordinated Convertible Notes Due 2029
TABLE OF CONTENTS
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
|
|
|
1
|
|
|
|
|
|
|
Section 1.01. Definitions
|
|
|
1
|
|
Section 1.02. Other Definitions
|
|
|
13
|
|
Section 1.03. Trust Indenture Act Provisions
|
|
|
14
|
|
Section 1.04. Rules Of Construction
|
|
|
15
|
|
|
|
|
|
|
ARTICLE 2 THE SECURITIES
|
|
|
15
|
|
|
|
|
|
|
Section 2.01. Form and Dating
|
|
|
15
|
|
Section 2.02. Execution and Authentication
|
|
|
17
|
|
Section 2.03. Registrar, Paying Agent and Conversion Agent
|
|
|
18
|
|
Section 2.04. Paying Agent To Hold Money In Trust
|
|
|
19
|
|
Section 2.05. Conversion Agent To Hold Money In Trust
|
|
|
20
|
|
Section 2.06. Lists of Holders of Securities
|
|
|
20
|
|
Section 2.07. Transfer and Exchange
|
|
|
20
|
|
Section 2.08. Replacement Securities
|
|
|
21
|
|
Section 2.09. Outstanding Securities
|
|
|
22
|
|
Section 2.10. Treasury Securities
|
|
|
22
|
|
Section 2.11. Temporary Securities
|
|
|
23
|
|
Section 2.12. Cancellation
|
|
|
23
|
|
Section 2.13. CUSIP and ISIN Numbers
|
|
|
23
|
|
Section 2.14. Calculations
|
|
|
24
|
|
Section 2.15. Payment of Interest; Interest Rights Preserved
|
|
|
24
|
|
Section 2.16. Computation of Interest
|
|
|
25
|
|
|
|
|
|
|
ARTICLE 3 PURCHASE
|
|
|
25
|
|
|
|
|
|
|
Section 3.01. Purchase of Securities by the Company for Cash at
Option of the Holder Upon a Fundamental Change
|
|
|
25
|
|
Section 3.02. Effect of Fundamental Change Purchase Notice
|
|
|
28
|
|
Section 3.03. Deposit of Fundamental Change Purchase Price
|
|
|
28
|
|
Section 3.04. Repayment to the Company
|
|
|
29
|
|
Section 3.05. Securities Purchased In Part
|
|
|
29
|
|
Section 3.06. Compliance With Securities Laws Upon Purchase of
Securities
|
|
|
29
|
|
Section 3.07. Purchase of Securities In Open Market
|
|
|
30
|
|
|
|
|
|
|
ARTICLE 4 CONVERSION
|
|
|
30
|
|
i
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
|
|
Section 4.01. Conversion Privilege and Conversion Rate
|
|
|
30
|
|
Section 4.02. Conversion Procedure
|
|
|
35
|
|
Section 4.03. Fractional Shares
|
|
|
37
|
|
Section 4.04. Taxes on Conversion
|
|
|
37
|
|
Section 4.05. Company To Provide Common Stock
|
|
|
37
|
|
Section 4.06. Adjustment of Conversion Rate
|
|
|
37
|
|
Section 4.07. No Adjustment
|
|
|
43
|
|
Section 4.08. Notice of Adjustment
|
|
|
44
|
|
Section 4.09. Notice of Certain Transactions
|
|
|
44
|
|
Section 4.10. Effect of Reclassification, Consolidation, Merger or Sale on
Conversion Privilege
|
|
|
44
|
|
Section 4.11. Trustees Disclaimer
|
|
|
47
|
|
Section 4.12. Voluntary Increase
|
|
|
47
|
|
Section 4.13. Payment of Cash in Lieu of Common Stock
|
|
|
47
|
|
|
|
|
|
|
ARTICLE 5 COVENANTS
|
|
|
48
|
|
|
|
|
|
|
Section 5.01. Payment of Securities
|
|
|
48
|
|
Section 5.02. SEC Reports
|
|
|
49
|
|
Section 5.03. Compliance Certificates
|
|
|
50
|
|
Section 5.04. Further Instruments and Acts
|
|
|
50
|
|
Section 5.05. Maintenance of Corporate Existence
|
|
|
50
|
|
Section 5.06. Stay, Extension and Usury Laws
|
|
|
51
|
|
Section 5.07. Maintenance of Office or Agency
|
|
|
51
|
|
Section 5.08. Contingent Interest
|
|
|
51
|
|
Section 5.09. Contingent Interest Notification
|
|
|
52
|
|
Section 5.10. Tax Treatment
|
|
|
52
|
|
|
|
|
|
|
ARTICLE 6 CONSOLIDATION; MERGER; SALE OF ASSETS
|
|
|
52
|
|
|
|
|
|
|
Section 6.01. Company May Consolidate, Etc., Only on Certain Terms
|
|
|
52
|
|
Section 6.02. Successor Substituted
|
|
|
53
|
|
|
|
|
|
|
ARTICLE 7 DEFAULT AND REMEDIES
|
|
|
54
|
|
|
|
|
|
|
Section 7.01. Events of Default
|
|
|
54
|
|
Section 7.02. Acceleration
|
|
|
56
|
|
Section 7.03. Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
57
|
|
Section 7.04. Trustee May File Proofs of Claim
|
|
|
58
|
|
Section 7.05. Trustee May Enforce Claims Without Possession of Securities
|
|
|
59
|
|
ii
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
|
|
Section 7.06. Application of Money Collected
|
|
|
59
|
|
Section 7.07. Limitation on Suits
|
|
|
59
|
|
Section 7.08. Unconditional Right of Holders to Receive Payment and to Convert
|
|
|
60
|
|
Section 7.09. Restoration of Rights and Remedies
|
|
|
60
|
|
Section 7.10. Rights and Remedies Cumulative
|
|
|
60
|
|
Section 7.11. Delay or Omission Not Waiver
|
|
|
61
|
|
Section 7.12. Control by Holders
|
|
|
61
|
|
Section 7.13. Waiver of Past Defaults
|
|
|
61
|
|
Section 7.14. Undertaking for Costs
|
|
|
61
|
|
Section 7.15. Remedies Subject to Applicable Law
|
|
|
62
|
|
|
|
|
|
|
ARTICLE 8 TRUSTEE
|
|
|
62
|
|
|
|
|
|
|
Section 8.01. Duties of Trustee
|
|
|
62
|
|
Section 8.02. Notice of Default
|
|
|
63
|
|
Section 8.03. Certain Rights of Trustee
|
|
|
63
|
|
Section 8.04. Trustee Not Responsible for Recitals, Dispositions of Securities or
Application of Proceeds Thereof
|
|
|
65
|
|
Section 8.05. Trustee and Agents May Hold Securities; Collections; etc.
|
|
|
65
|
|
Section 8.06. Money Held in Trust
|
|
|
65
|
|
Section 8.07. Compensation and Indemnification of Trustee and Its Prior Claim
|
|
|
65
|
|
Section 8.08. Conflicting Interests
|
|
|
66
|
|
Section 8.09. Trustee Eligibility
|
|
|
66
|
|
Section 8.10. Resignation and Removal; Appointment of Successor Trustee
|
|
|
66
|
|
Section 8.11. Acceptance of Appointment by Successor
|
|
|
68
|
|
Section 8.12. Merger, Conversion, Consolidation or Succession to Business
|
|
|
68
|
|
Section 8.13. Preferential Collection of Claims Against Company
|
|
|
69
|
|
Section 8.14. Reports By Trustee
|
|
|
69
|
|
|
|
|
|
|
ARTICLE 9 SATISFACTION AND DISCHARGE OF INDENTURE
|
|
|
70
|
|
|
|
|
|
|
Section 9.01. Satisfaction and Discharge of Indenture
|
|
|
70
|
|
Section 9.02. Application of Trust Money and Property
|
|
|
70
|
|
Section 9.03. Reinstatement
|
|
|
71
|
|
|
|
|
|
|
ARTICLE 10 AMENDMENTS; SUPPLEMENTS AND WAIVERS
|
|
|
71
|
|
|
|
|
|
|
Section 10.01. Without Consent of Holders
|
|
|
71
|
|
Section 10.02. With Consent of Holders
|
|
|
72
|
|
iii
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
|
|
Section 10.03. Execution of Supplemental Indentures and Agreements
|
|
|
73
|
|
Section 10.04. Effect of Supplemental Indentures
|
|
|
74
|
|
Section 10.05. Conformity with Trust Indenture Act
|
|
|
74
|
|
Section 10.06. Reference in Securities to Supplemental Indentures
|
|
|
74
|
|
Section 10.07. Notice of Supplemental Indentures
|
|
|
74
|
|
|
|
|
|
|
ARTICLE 11 REDEMPTION
|
|
|
74
|
|
|
|
|
|
|
Section 11.01. Right to Redeem
|
|
|
74
|
|
Section 11.02. Selection of Securities to be Redeemed
|
|
|
75
|
|
Section 11.03. Notice of Redemption
|
|
|
76
|
|
Section 11.04. Effect of Notice of Redemption
|
|
|
76
|
|
Section 11.05. Deposit of Redemption Price
|
|
|
77
|
|
Section 11.06. Securities Redeemed in Part
|
|
|
77
|
|
|
|
|
|
|
ARTICLE 12 SUBORDINATION
|
|
|
77
|
|
|
|
|
|
|
Section 12.01. Agreement of Subordination
|
|
|
77
|
|
Section 12.02. Payments to Holders
|
|
|
78
|
|
Section 12.03. Subrogation of Securities
|
|
|
80
|
|
Section 12.04. Authorization to Effect Subordination
|
|
|
81
|
|
Section 12.05. Notice to Trustee
|
|
|
81
|
|
Section 12.06. Trustees Relation to Senior Debt
|
|
|
82
|
|
Section 12.07. No Impairment of Subordination
|
|
|
82
|
|
Section 12.08. Certain Conversions Not Deemed Payment
|
|
|
82
|
|
Section 12.09. Article Applicable to Paying Agents
|
|
|
83
|
|
Section 12.10. Senior Debt Entitled to Rely
|
|
|
83
|
|
|
|
|
|
|
ARTICLE 13 MISCELLANEOUS
|
|
|
83
|
|
|
|
|
|
|
Section 13.01. Conflict with Trust Indenture Act
|
|
|
83
|
|
Section 13.02. Notices
|
|
|
83
|
|
Section 13.03. Disclosure of Names and Addresses of Holders
|
|
|
85
|
|
Section 13.04. Compliance Certificates and Opinions
|
|
|
85
|
|
Section 13.05. Acts of Holders
|
|
|
86
|
|
Section 13.06. Benefits of Indenture
|
|
|
87
|
|
Section 13.07. Legal Holidays
|
|
|
87
|
|
Section 13.08. Governing Law
|
|
|
87
|
|
Section 13.09. No Adverse Interpretation of Other Agreements
|
|
|
88
|
|
iv
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
Page
|
|
|
Section 13.10. No Personal Liability of Directors, Officers, Employees and
Stockholders
|
|
|
88
|
|
Section 13.11. Successors and Assigns
|
|
|
88
|
|
Section 13.12. Multiple Counterparts
|
|
|
88
|
|
Section 13.13. Separability Clause
|
|
|
88
|
|
Section 13.14. Independence of Covenants
|
|
|
88
|
|
Section 13.15. Schedules and Exhibits
|
|
|
88
|
|
Section 13.16. Effect of Headings and Table of Contents
|
|
|
88
|
|
|
|
|
|
|
EXHIBIT A Form of Security
|
|
|
A-1
|
|
v
CROSS-REFERENCE TABLE
|
|
|
|
|
|
|
|
|
|
|
TIA
|
|
|
|
|
Indenture
|
Section
|
|
|
|
|
Section(s)
|
Section 310(a)(1)
|
|
|
|
|
8.09
|
|
|
|
|
(a
|
)(2)
|
|
|
|
|
8.09
|
|
|
|
|
(a
|
)(3)
|
|
|
|
|
N.A.
|
**
|
|
|
|
(a
|
)(4)
|
|
|
|
|
N.A.
|
|
|
|
|
(a
|
)(5)
|
|
|
|
|
8.09
|
|
|
|
|
(b
|
)
|
|
|
|
|
8.08
|
|
|
|
|
(c
|
)
|
|
|
|
|
N.A.
|
|
Section 311(a)
|
|
|
|
|
8.13
|
|
|
|
|
(b
|
)
|
|
|
|
|
8.05
|
|
|
|
|
(c
|
)
|
|
|
|
|
N.A.
|
|
Section 312(a)
|
|
|
|
|
2.06
|
|
|
|
|
(b
|
)
|
|
|
|
|
13.03
|
|
|
|
|
(c
|
)
|
|
|
|
|
13.03
|
|
Section 313(a)
|
|
|
|
|
8.14
|
(a)
|
|
|
|
(b
|
)(1)
|
|
|
|
|
N.A.
|
|
|
|
|
(b
|
)(2)
|
|
|
|
|
8.14
|
(a)
|
|
|
|
(c
|
)
|
|
|
|
|
8.14
|
(a)
|
|
|
|
(d
|
)
|
|
|
|
|
8.14
|
(b)
|
Section 314(a)
|
|
|
|
|
5.02
|
|
|
|
|
(b
|
)
|
|
|
|
|
N.A.
|
|
|
|
|
(c
|
)(1)
|
|
|
|
|
§13.04
|
(a)
|
|
|
|
(c
|
)(2)
|
|
|
|
|
§13.04
|
(a)
|
|
|
|
(c
|
)(3)
|
|
|
|
|
N.A.
|
|
|
|
|
(d
|
)
|
|
|
|
|
N.A.
|
|
|
|
|
(e
|
)
|
|
|
|
|
§13.04
|
(b)
|
|
|
|
(f
|
)
|
|
|
|
|
N.A.
|
|
Section 315(a)
|
|
|
|
|
8.01
|
(b)
|
|
|
|
315
|
(b)
|
|
|
|
|
8.02
|
|
|
|
|
315
|
(c)
|
|
|
|
|
8.01
|
(a)
|
|
|
|
315
|
(d)
|
|
|
|
|
8.01
|
(c)
|
|
|
|
315(d
|
)(2)
|
|
|
|
|
8.01
|
(c)
|
|
|
|
315(d
|
)(3)
|
|
|
|
|
8.01
|
(c)
|
|
|
|
315
|
(e)
|
|
|
|
|
7.14
|
|
Section 316(a)(1)
|
|
|
|
|
7.12
|
|
|
|
|
316(a
|
)(2)
|
|
|
|
|
N.A.
|
|
|
|
|
316
|
(b)
|
|
|
|
|
7.08
|
|
|
|
|
316
|
(c)
|
|
|
|
|
13.05
|
(e)
|
Section 317(a)
|
|
|
|
|
7.03, 7.04
|
(a)
|
|
|
|
317
|
(b)
|
|
|
|
|
2.04
|
|
Section 318(a)
|
|
|
|
|
13.01
|
|
|
|
|
318
|
(c)
|
|
|
|
|
13.01
|
|
|
|
|
*
|
|
This Cross-Reference Table shall not, for any purpose, be deemed a part of this Indenture.
|
|
**
|
|
N.A. means Not Applicable.
|
vi
THIS INDENTURE dated as of November [ ], 2009 is between General Cable Corporation, a
corporation duly organized under the laws of the State of Delaware (the Company), and U.S. Bank
National Association, a national banking association organized and existing under the laws of the
United States, as Trustee (the Trustee).
In consideration of the purchase of the Securities (as defined herein) by the Holders thereof,
the parties hereto agree as follows for the benefit of one another and for the equal and ratable
benefit of the Holders of the Companys Subordinated Convertible Notes Due 2029.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01.
Definitions
.
0.875% Convertible Notes
means the 0.875% senior convertibles notes due 2013 of the
Company, issued pursuant to the indenture dated as of November 15, 2006 among the Company, the
guarantors named therein, and U.S. Bank National Association, as trustee.
1.00% Convertible Notes
means the 1.00% senior convertibles notes due 2012 of the
Company, issued pursuant to the indenture dated as of October 2, 2007 among the Company, the
guarantors named therein, and U.S. Bank National Association, as trustee.
7.125% Senior Notes
means the 7.125% senior fixed rate notes due 2017 of the
Company, issued pursuant to the indenture dated as of March 21, 2007 among the Company, the
guarantors named therein, and U.S. Bank National Association, as trustee.
Additional Interest
has the meaning specified in Section 7.02.
Affiliate
means, with respect to any specified Person, (i) any other Person directly
or indirectly controlling or controlled by or under direct or indirect common control with such
specified Person; (ii) any other Person that owns, directly or indirectly, 10% or more of such
specified Persons Capital Stock or any officer or director of any such specified Person or other
Person or, with respect to any natural Person, any Person having a relationship with such Person by
blood, marriage or adoption not more remote than first cousin; or (iii) any other Person 10% or
more of the Voting Stock of which is beneficially owned or held directly or indirectly by such
specified Person.
For the purposes of this definition, control when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms
controlling and controlled have meanings correlative to the foregoing.
Agent
means any Registrar, Paying Agent or Conversion Agent.
Applicable Procedures
means, with respect to any conversion, transfer or exchange of
beneficial ownership interests in a Global Security, the rules and procedures of the Depositary, to
the extent applicable to such conversion, transfer or exchange.
1
Bankruptcy Law
means Title 11 of the United States Code entitled
Bankruptcy
or any other law relating to bankruptcy, insolvency, winding up, liquidation,
reorganization or relief of debtors, whether in effect on the date hereof or hereafter.
Board of Directors
means the board of directors of the Company or any duly
authorized committee of such board, or any equivalent body in a limited partnership, limited
liability company or other entity serving substantially the same function as a board of directors
of a corporation.
Board Resolution
means, with respect to any Person, a duly adopted resolution (or
other similar action) of the Board of Directors of such Person or a duly authorized committee
thereof, as applicable.
Business Day
means any weekday that is not a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or executive order to close or
be closed.
Capital Lease Obligation
of any Person means any obligation of such Person and its
Restricted Subsidiaries on a consolidated basis under any capital lease of real or personal
property which, in accordance with GAAP, is required to be recorded as a capitalized lease
obligation on the books of the lessee.
Capital Stock
in any Person means any and all shares, interests, rights to purchase,
warrants, options, participations or other equivalents of or interest in (however designated)
corporate stock or other equity participations, including partnership interests, whether general or
limited, in such Person, including any Preferred Capital Stock and any right or interest which is
classified as equity in accordance with GAAP (other than debt securities convertible into Capital
Stock).
Cash
or
cash
means such coin or currency of the United States as at any
time of payment is legal tender for the payment of public and private debts.
Cash Equivalents
means (i) any evidence of Indebtedness, maturing not more than one
year after the date of acquisition, issued by the United States of America, or an instrumentality
or agency thereof, and guaranteed fully as to principal, premium, if any, and interest by the
United States of America, (ii) any certificate of deposit, maturing not more than one year after
the date of acquisition, issued by a commercial banking institution that is a member of the Federal
Reserve System and that has combined capital and surplus and undivided profits of not less than
$500,000,000, whose debt has a rating, at the time as of which any investment therein is made, of
P-1 (or higher) according to Moodys or A-1 (or higher) according to S&P, (iii) commercial
paper, maturing not more than one year after the date of acquisition, issued by a corporation
(other than an Affiliate or Subsidiary of the Company) organized and existing under the laws of the
United States of America with a rating, at the time as of which any investment therein is made, of
P-1 (or higher) according to Moodys or A-1 (or higher) according to S&P, (iv) any money market
deposit accounts issued or offered by a domestic commercial bank having capital and surplus in
excess of $500,000,000; provided that the short term debt of such commercial bank has a rating, at
the time of Investment, of P-1 (or higher) according to Moodys or A-1
2
(or higher) according to S&P, and (v) shares of money market mutual funds within the
definition of Rule 2a-7 promulgated by the SEC under the Investment Company Act of 1940, as
amended.
Certificated Security
means a Security that is in substantially the form attached as
Exhibit A but that does not include the information or the schedule called for by footnote 1
thereof.
Change of Control
means the occurrence of any of the following events:
(1) any person or group (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act) is or becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have beneficial ownership of all shares that
such person has the right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of Voting Stock representing 50% or more of the total
voting power of all outstanding Voting Stock of the Company; or
(2) the Company consolidates with, or merges with or into, another person (other than a wholly
owned Restricted Subsidiary) or the Company and/or one or more of its Restricted Subsidiaries sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all of the assets of
the Company and the Restricted Subsidiaries (determined on a consolidated basis) to any person
(other than the Company or a wholly owned Restricted Subsidiary), other than any such transaction
where immediately after such transaction the person or persons that beneficially owned (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act) immediately prior to such transaction,
directly or indirectly, Voting Stock representing a majority of the total voting power of all
outstanding Voting Stock of the Company, beneficially own or owns (as so determined), directly or
indirectly, Voting Stock representing a majority of the total voting power of the outstanding
Voting Stock of the surviving or transferee person; or
(3) during any consecutive two-year period, the Continuing Directors cease for any reason to
constitute a majority of the Board of Directors; or
(4) the adoption of a plan of liquidation or dissolution of the Company.
Notwithstanding the foregoing, it will not constitute a Change of Control if 100% of the
consideration for the Companys Common Stock (excluding cash payments for fractional shares and
cash payments made in respect of dissenters appraisal rights) in the transaction or transactions
constituting the Change of Control consists of common stock and any associated rights listed on a
United States national securities exchange or quoted on a national automated dealer quotation
system, or which will be so traded or quoted when issued or exchanged in connection with the Change
of Control, and as a result of such transaction or transactions the Securities become convertible
solely into such common stock.
Closing Price
means, with respect to the Companys Common Stock on any Trading Day,
the reported last sale price per share (or if no last sale price is reported, the average of the
bid and ask prices per share or, if more than one in either case, the average of the average bid
and the average ask prices per share) on such date reported by the New York Stock Exchange, or, if
the Companys Common Stock is not listed on the New York Stock Exchange, as reported by the NASDAQ
Global Market, or, if the Companys Common Stock is not quoted on the NASDAQ
3
Global Market, as reported by the principal national securities exchange on which the
Companys Common Stock is listed, or if no such prices are available, the Closing Price per share
shall be the Fair Market Value of a share of Common Stock as reasonably determined by the Board of
Directors (which determination shall be conclusive and shall be evidenced by an Officers
Certificate delivered to the Trustee).
Common Stock
means the Companys common stock, par value $0.01 per share, or any
successor common stock thereto.
Company
means the party named as such in the first paragraph of this Indenture until
a successor replaces it pursuant to the applicable provisions of this Indenture, and thereafter
Company shall mean such successor Company.
Company Request
or
Company Order
means a written request or order signed
in the name of the Company by any one of its Chairman of the Board, its Chief Executive Officer,
its President, its Chief Operating Officer, its Chief Financial Officer or a Vice President
(regardless of Vice Presidential designation), and by any one of its Treasurer, an Assistant
Treasurer, any other Vice President (regardless of Vice Presidential designation), its Secretary or
an Assistant Secretary, and delivered to the Trustee.
Continuing Directors
means, as of any date of determination, any member of the Board
of Directors of the Company who was (a) a member of such Board of Directors on the date of this
Indenture or (b) nominated for election or elected to such Board of Directors with the approval of
a majority of the Continuing Directors who were members of such board at the time of such
nomination or election.
Conversion Price
per share of Common Stock as of any day means the result obtained
by dividing (i) $1,000 by (ii) the then applicable Conversion Rate.
Conversion Rate
means the rate at which shares of Common Stock shall be delivered
upon conversion, which rate shall be initially [ ] shares of Common Stock for each
$1,000 principal amount of Securities, as adjusted from time to time pursuant to the provisions of
this Indenture.
Conversion Reference Period
means:
(1) for Securities that are converted during the 25 scheduled Trading Days prior to the Final
Maturity Date of the Securities, the 20 consecutive Trading Days preceding and ending on the third
Trading Day prior to the Final Maturity Date, subject to any extension due to a Market Disruption
Event; and
(2) in all other instances, the 20 consecutive Trading Days beginning on the third Trading Day
following the Conversion Date.
Conversion Value
means the average of the Daily Conversion Values for each of the 20
consecutive Trading Days of the Conversion Reference Period.
4
Corporate Trust Office
means the office of the Trustee at which at any particular
time the trust created by this Indenture shall be administered, which office at the date of the
execution of this Indenture is located at 425 Walnut Street, 6th Floor, Cincinnati, OH, 45202,
Attention: Robert T. Jones, Vice President, or at any other time at such other address as the
Trustee may designate from time to time by notice to the Holders and the Company.
Daily Conversion Value
means, with respect to any Trading Day, for each $1,000
principal amount of Securities, an amount equal to the product of (i) the applicable Conversion
Rate and (ii) the Daily VWAP per share of Common Stock on such Trading Day; provided that after the
consummation of a Change of Control in which the consideration is comprised entirely of cash, the
amount used in clause (ii) will be the cash price per share received by holders of Common Stock in
such Change of Control.
Daily Share Amount
means for each Trading Day during the Conversion Reference Period
and for each $1,000 principal amount of Securities surrendered for conversion, a number of shares
(but in no event less than zero) equal to (i) the amount of (a) the Daily VWAP per share of Common
Stock for such Trading Day multiplied by the applicable Conversion Rate less (b) $1,000; divided by
(ii) the Daily VWAP per share of Common Stock for such Trading Day multiplied by 20.
Daily VWAP
for any trading day means the per share volume weighted average price of
the Common Stock on that day as displayed under the heading Bloomberg VWAP on Bloomberg Page BGC.N
<Equity> AQR (or its equivalent successor page if such page is not available) in respect of
the period from the scheduled open of trading on the relevant Trading Day until the scheduled close
of trading on the relevant Trading Day (or if such volume weighted average price is unavailable,
the market price of one share of the Common Stock on such Trading Day determined, using a volume
weighted average method, by a nationally recognized investment banking firm retained by the Company
for this purpose).
Default
means any event that is, or after notice or passage of time or both would
be, an Event of Default.
Designated Senior Debt
means, with respect to the Company, obligations under any
Senior Debt in which the instrument creating or evidencing such Senior Debt or the assumption or
guarantee thereof (or related agreements or documents to which the Company is a party) expressly
provides that such Senior Debt shall be Designated Senior Debt for purposes of this Indenture.
The instrument, agreement or other document evidencing any Designated Senior Debt may place
limitations and conditions on the right of such Senior Debt to exercise the rights of Designated
Senior Debt.
Disposition
means, for the purposes of the definition of
Surviving Person
only, with respect to any Person, any merger, consolidation, amalgamation or other business
combination involving such Person (whether or not such Person is the Surviving Person) or the sale,
assignment, transfer, lease, conveyance or other disposition of all or substantially all of such
Persons assets.
Exchange Act
means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder, as in effect from time to time.
5
Fair Market Value
means, with respect to any asset or property, the sale value that
would be obtained in an arms-length free market transaction between an informed and willing seller
under no compulsion to sell and an informed and willing buyer under no compulsion to buy. Fair
Market Value shall be determined by the Board of Directors of the Company acting in good faith and
shall be evidenced by a resolution of the Board of Directors.
Final Maturity Date
means November 15, 2029.
Fundamental Change
means the occurrence of a Change of Control or a Termination of
Trading.
Fundamental Change Effective Date
means the date on which any Fundamental Change
becomes effective.
Fundamental Change Purchase Price
of any Security, means 100% of the principal
amount of the Security to be purchased plus accrued and unpaid interest, if any, and Contingent
Interest and Additional Interest, if any, to, but excluding, the Fundamental Change Purchase Date.
GAAP
means generally accepted accounting principles in the United States of America
set forth in the opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board and the Public Company Accounting Oversight Board or in such other
statements by such other entity as have been approved by a significant segment of the accounting
profession, which are in effect (i) with respect to periodic reporting requirements, from time to
time, and (ii) otherwise on the date hereof.
Global Security
means a Security in global form that is in substantially the form
attached as Exhibit A and that includes the information and schedule called for in footnote 1
thereof and which is deposited with the Depositary or its custodian and registered in the name of
the Depositary or its nominee.
Hedging Obligations
means, with respect to any Person, the Obligations of such
Person under (1) interest rate swap agreements, interest rate cap agreements, interest rate collar
agreements and similar agreements or arrangements and (2) foreign currency or commodity hedge,
swap, exchange and similar agreements (agreements referred to in this definition being referred to
herein as Hedging Agreements).
Holder
or
Holder of a Security
means the person in whose name a Security
is registered on the Registrars books.
Indebtedness
means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person and whether or not contingent:
(1) every obligation of such Person for money borrowed;
(2) every obligation of such Person evidenced by bonds, debentures, notes or other
similar instruments, including obligations incurred in connection with the acquisition of
assets or business by such Person;
6
(3) every reimbursement obligation of such Person with respect to letters of credit,
bankers acceptances or similar facilities issued for the account of such Person;
(4) every obligation of such Person issued or assumed as the deferred purchase price of
assets or services (but excluding (A) earnout or other similar obligations until such time
as the amount of such obligation is capable of being determined and its payment is probable,
(B) trade accounts payable incurred in the ordinary course of business and payable in
accordance with industry practices (including, so long as not treated as Indebtedness in
accordance with GAAP, trade payables subject to the payables extension facility), or (C)
other accrued liabilities arising in the ordinary course of business which are not overdue
or which are being contested in good faith);
(5) every Capital Lease Obligation of such Person, including, without limitation, from
Sale/Leaseback Transactions;
(6) every net obligation payable under Hedging Agreements of such Person;
(7) every obligation of the type referred to in clauses (1) through (6) of another
Person and all dividends of another Person the payment of which, in either case, such Person
has guaranteed or is responsible or liable for, directly or indirectly, as obligor,
guarantor or otherwise, the amount of such obligation being the maximum amount covered by
such guarantee or for which such Person is otherwise liable; and
(8) every obligation of the type referred to in clauses (1) through (7) above of
another Person the payment of which is secured by the assets of that Person, the amount of
such obligation being deemed to be the lesser of (i) the Fair Market Value of such asset or
(ii) the amount of the obligation so secured.
Indebtedness:
(A) shall never be calculated taking into account any cash and Cash Equivalents held by
such Person;
(B) shall not include obligations of any Person (1) arising from the honoring by a bank
or other financial institution of a check, draft or similar instrument inadvertently drawn
against insufficient funds in the ordinary course of business, provided that such
obligations are extinguished within 5 Business Days of their incurrence, (2) resulting from
the endorsement of negotiable instruments for collection in the ordinary course of business
and consistent with past business practices and (3) under standby letters of credit to the
extent collateralized by cash or Cash Equivalents;
(C) shall include the liquidation preference and any mandatory redemption payment
obligations in respect of any Redeemable Capital Stock or any Preferred Capital Stock of any
Restricted Subsidiary;
(D) shall not include any liability for federal, provincial, state, local or other
taxes; and
7
(E) shall not include obligations under performance bonds, performance guarantees,
surety bonds and appeal bonds, letters of credit or similar obligations, incurred in the
ordinary course of business.
Indenture
means this instrument as originally executed (including all exhibits and
schedules thereto) and as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including
the provisions of the TIA that are automatically deemed to be part of this Indenture by operation
of the TIA.
Indenture Obligations
means the obligations of the Company and any other obligor
under this Indenture or under the Securities, to pay principal of, premium, if any, and interest
(including Contingent Interest and Additional Interest, if any) when due and payable, and all other
amounts due or to become due under or in connection with this Indenture and the Securities and the
performance of all other obligations to the Trustee and the Holders under this Indenture and the
Securities, according to the respective terms hereof and thereof.
Initial Conversion Value
means [ ].
Interest Payment Date
means May 15 and November 15 of each year, commencing May 15,
2010.
Issue Date
means the date of this Indenture.
Market Disruption Event
means the occurrence or existence for more than one-half
hour period in the aggregate on any scheduled Trading Day for the Common Stock of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits permitted by the
New York Stock Exchange or otherwise) in the Common Stock or in any options, contracts or future
contracts relating to the Common Stock, and such suspension or limitation occurs or exists at any
time before 1:00 p.m., New York City time, on such day.
Officer
means the Chairman, any Vice Chairman, the President, the Chief Executive
Officer, any Vice President, the Chief Financial Officer, the Chief Operating Officer, the
Treasurer or any Assistant Treasurer, or the Secretary or any Assistant Secretary of the Company.
Officers Certificate
means a certificate signed by an Officer of the Company or any
Guarantor, as the case may be, and in form and substance reasonably satisfactory to, and delivered
to, the Trustee; provided, however, that for purposes of Section 5.03,
Officers
Certificate
means a certificate signed by the principal executive officer, principal financial
officer, principal operating officer or principal accounting officer of the Company.
Notwithstanding the foregoing, with respect to any Guarantor, the
Officers Certificate
may be executed by any one of the Treasurer, Assistant Treasurer, Secretary or Assistant Secretary
of the Guarantor, the Guarantors general partner or the Guarantors member.
Opinion of Counsel
means a written opinion of counsel, who may be an employee of or
counsel for the Company, any Guarantor or the Trustee and who shall be reasonably acceptable
8
to the Trustee, and which opinion shall be in form and substance reasonably satisfactory to
the Trustee.
Person
means any individual, corporation, limited liability company, partnership,
joint venture, association, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
Preferred Capital Stock,
in any Person, means Capital Stock of any class or classes
(however designated) which is preferred as to the payment of dividends or distributions, or as to
the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over Capital Stock of any other class in such Person.
Principal
or
principal
of a debt security, including the Securities, means
the principal of the security plus, when appropriate, the premium, if any, on the security.
Prospectus
means the Prospectus relating to the issuance of the Securities, dated [ ], 2009.
Redeemable Capital Stock
means any Capital Stock that, either by its terms or by the
terms of any security into which it is convertible or exchangeable or otherwise, (1) is, or upon
the happening of an event or passage of time would be, required to be redeemed prior to the Final
Maturity Date, (2) is redeemable at the option of the holder of such Capital Stock at any time
prior to the Final Maturity Date (other than upon a Change of Control of the Company in
circumstances where the Holders of the Securities would have similar rights), or (3) is convertible
into or exchangeable for debt securities at any time prior to the Final Maturity Date at the option
of the holder of such Capital Stock.
Redemption Conversion Value
means the product of (i) the Conversion Rate in effect
on the Redemption Date and (ii) the average of the Daily VWAP of the Companys Common Stock for the
five consecutive Trading Days ending on the Trading Day immediately preceding the Redemption Date.
Redemption Date
shall mean the date specified for redemption of the Securities in
accordance with the terms of the Securities and Article 11 hereof.
Redemption Price
has the meaning specified in Section 11.01.
Regular Record Date
means, with respect to each Interest Payment Date, the May 1 or
November 1, as the case may be, immediately preceding such Interest Payment Date.
Representative
means the (i) indenture trustee or other trustee, agent or
representative for any Senior Debt or (ii) with respect to any Senior Debt that does not have any
such trustee, agent or other representative, (1) in the case of such Senior Debt issued pursuant to
an agreement providing for voting arrangements as among the holders or owners of such Senior Debt,
any holder or owner of such Senior Debt acting with the consent of the required Persons necessary
to bind such holders or owners of such Senior Debt and (2) in the case of all other such Senior
Debt, the holder or owner of such Senior Debt.
9
Restricted Subsidiary
means any Subsidiary of the Company that has not been
designated by the Companys Board of Directors by a board resolution delivered to the Trustee under
any indenture for any Senior Note, as defined in this Section, as an unrestricted subsidiary
pursuant to and in compliance with the terms of the indenture governing the applicable Senior Note.
Sale/Leaseback Transaction
means an arrangement relating to property now owned or
hereafter acquired whereby the Company or a Restricted Subsidiary transfers such property to a
Person and the Company or a Subsidiary leases it from such Person.
SEC
means the U.S. Securities and Exchange Commission.
Securities
means up to $[ ],000 aggregate principal amount of
Subordinated Convertible Notes due 2029, or any of them (each a
Security
), as amended or
supplemented from time to time, that are issued under this Indenture.
Securities Act
means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.
Securities Custodian
means the Trustee, as custodian with respect to the Securities
in global form, or any successor thereto.
Senior Floating Rate Notes
means the senior floating rate notes due 2015 of the
Company, issued pursuant to the indenture dated as of March 21, 2007 among the Company, the
guarantors named therein, and U.S. Bank National Association, as trustee.
Senior Debt
means, with respect to the Company, the principal of (and premium, if
any) and interest (including contingent and additional interest, if any, and all interest accruing
subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such proceeding) on, and all fees and other
amounts payable in connection with, the following, whether absolute or contingent, secured or
unsecured, due or to become due, outstanding on the date of this Indenture or thereafter created,
incurred, assumed or guaranteed by the Company:
(i) any Indebtedness or obligation (1) evidenced by a credit or loan agreement, note,
bond, debenture or similar written obligation or instrument or (2) for money borrowed;
(ii) all obligations (1) as lessee under leases required to be capitalized on such
Persons balance sheet under GAAP or (2) as lessee under other leases for facilities,
capital equipment or related assets, whether or not capitalized, entered into or leased for
financing purposes;
(iii) all Hedging Obligations or similar agreements or arrangements;
(iv) all obligations and liabilities of such Person with respect to letters of credit,
bankers acceptances and similar facilities (including reimbursement obligations with
respect to the foregoing);
10
(v) all obligations and liabilities of such Person issued or assumed as the deferred
purchase price of any property or services (but excluding trade accounts payable and accrued
liabilities arising in the ordinary course of business);
(vi) obligations of the type described in clauses (i) through (v) above of any third
Person and all dividends of any third Person payment of which, in either case, the Company
has assumed or guaranteed, or for which the Company is responsible or liable, directly or
indirectly, jointly or severally, as obligor, guarantor or otherwise, or which are secured
by a lien on the Companys property; and
(vii) any and all renewals, extensions, modifications, replacements, restatements and
refundings of, or any indebtedness or obligation issued in exchange for, any Indebtedness,
obligation or liability of the kinds described in clauses (i) through (vi).
Notwithstanding the foregoing, the term Senior Debt shall not include (i) the Securities, (ii)
any Indebtedness created, evidenced, assumed or guaranteed by an instrument that expressly provides
that such Indebtedness is subordinate, or shall not be senior, in right of payment to the
Securities or expressly provides that such Indebtedness is pari passu or junior to the
Securities, (iii) any Indebtedness of the Company to any Subsidiary of the Company or (iv) any
Indebtedness of or amounts owed by the Company for trade payables or otherwise for goods or
materials purchased or services obtained in the ordinary course of business.
Senior Notes
means, collectively, the 1.00% Convertible Notes, the 0.875% Senior
Convertible Notes, the Senior Floating Rate Notes and the 7.125% Senior Notes.
Significant Subsidiary
means any Subsidiary that would be a
significant
subsidiary
as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the
Securities Act, as such regulation is in effect on the date of this Indenture.
Special Record Date
for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 2.15.
Stated Maturity
means, with respect to any installment of interest or principal on
any series of Indebtedness, the date on which such payment of interest or principal was scheduled
to be paid in the original documentation governing such Indebtedness, and shall not include any
contingent obligations to repay, redeem or repurchase any such interest or principal prior to the
date originally scheduled for the payment thereof.
Stock Price
means the price paid, or deemed paid, per share of the Companys Common
Stock in connection with a Change of Control as determined pursuant to Section 4.01(j) hereof.
Subsidiary
of a Person means (i) any corporation more than 50% of the outstanding
voting power of the Voting Stock of which is owned or controlled, directly or indirectly, by such
Person or by one or more other Subsidiaries of such Person, or by such Person and one or more other
Subsidiaries of such Person, or (ii) any limited partnership of which such Person or any Subsidiary
of such Person is a general partner, or (iii) any other Person in which such Person, or one or more
other Subsidiaries of such Person, or such Person and one or more other
11
Subsidiaries, directly or indirectly, has more than 50% of the outstanding partnership or
similar interests or has the power, by contract or otherwise, to direct or cause the direction of
the policies, management and affairs of such Person.
Surviving Person
means, with respect to any Person involved in or that makes any
Disposition, the Person formed by or surviving such Disposition or the Person to which such
Disposition is made.
Tax Triggering Event
means (i) the enactment of U.S. federal legislation,
promulgation of Treasury regulations, issuance of a published ruling, notice, announcement or
equivalent form of guidance by the Treasury or the Internal Revenue Service, or the issuance of a
judicial decision, in each case after the Issue Date, if the Company receives an opinion of its
outside counsel to the effect that, any such authority will have the effect of lowering the
comparable yield or delaying or otherwise limiting the current deductibility of interest or
original issue discount with respect to the Securities, or (ii) any closing agreement or other
final settlement entered into by us and the U.S. Treasury or Internal Revenue Service which
agreement or settlement has the effect of lowering the comparable yield or delaying or otherwise
limiting the current deductibility of interest or original issue discount with respect to the
Securities, provided that the Company determines that the reduction, delay or limit on its current
deductibility of interest or original issue discount with respect to the Securities as a result of
the conditions described in clause (i) or (ii) of this definition is material.
Termination of Trading
means any date on which the Companys Common Stock (or other
common stock into which the Securities are then convertible) is not listed for trading on a United
States national securities exchange, quoted on a U.S. national automated dealer quotation system,
or approved for trading on an established automated over-the-counter trading market in the United
States.
TIA
means the Trust Indenture Act of 1939, as amended, and the rules and regulations
thereunder as in effect on the date of this Indenture, except to the extent that the Trust
Indenture Act or any amendment thereto expressly provides for application of the Trust Indenture
Act as in effect on another date.
Trading Day
means any day on which (i) there is no Market Disruption Event and (ii)
the New York Stock Exchange is open for trading, or, if the Common Stock is not listed on the New
York Stock Exchange, any day on which the NASDAQ Global Market is open for trading, or, if the
Common Stock is neither listed on the New York Stock Exchange nor quoted on the NASDAQ Global
Market, any day on which the principal national securities exchange on which the Common Stock is
listed is open for trading, or, if the Common Stock is not listed on a national securities
exchange, any Business Day. A Trading Day only includes those days that have a scheduled closing
time of 4:00 p.m. (New York City time) or the then standard closing time for regular trading on the
relevant exchange or trading system.
Trading Price
of the Securities on any date of determination means the average of
the secondary market bid quotations obtained by the Trustee for $5.0 million principal amount of
Securities at approximately 3:30 p.m., New York City time, on such determination date from three
nationally recognized securities dealers the Company selects, which may include Goldman,
12
Sachs & Co. and/or J.P. Morgan Securities Inc.; provided that if three such bids cannot
reasonably be obtained by the Trustee, but two such bids are obtained, then the average of the two
bids shall be used, and if only one such bid can reasonably be obtained by the Trustee, that one
bid shall be used. If the Trustee cannot reasonably obtain at least one bid for $5.0 million
principal amount of Securities from a nationally recognized securities dealer, or in the reasonable
judgment of the Company, the bid quotations are not indicative of the secondary market value of the
Securities, then the Trading Price per $1,000 principal amount of Securities will be deemed to be
less than 98% of the product of the Closing Price of the Companys Common Stock and the then
applicable Conversion Rate per $1,000 principal amount of Securities. Notwithstanding the
foregoing, for purposes of determining Contingent Interest, if the Trustee cannot reasonably obtain
at least one bid for $5.0 million principal amount of Securities from a nationally recognized
securities dealer, then the Trading Price per $1,000 principal amount of Securities will be deemed
to equal the product of (i) the Conversion Rate then in effect and (ii) the average Closing Price
of the Common Stock over the five Trading-Day period ending on the determination date.
Trustee
means the party named as such in the first paragraph of this Indenture until
a successor replaces it in accordance with the provisions of this Indenture, and thereafter means
the successor.
Trust Officer
means, with respect to the Trustee, any officer assigned to the
Corporate Trust Office having direct responsibility for the administration of this Indenture, and
also, with respect to a particular matter, any other officer to whom such matter is referred
because of such officers knowledge of and familiarity with the particular subject.
Vice President
when used with respect to the Company or the Trustee, means any vice
president, whether or not designated by a number or a word or words added before or after the title
vice president.
Voting Stock
of any Person means Capital Stock of the class or classes pursuant to
which the holders of such Capital Stock have the general voting power under ordinary circumstances
to elect at least a majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not at the time Capital Stock of any other class or classes shall have
or might have voting power by reason of the happening of any contingency).
Section 1.02.
Other Definitions
.
|
|
|
|
|
Term
|
|
Defined in Section
|
|
Act
|
|
|
13.05
|
|
Additional Shares
|
|
|
4.01
|
|
Agent Members
|
|
|
2.01
|
|
Business Combination
|
|
|
4.10
|
|
Cash Percentage
|
|
|
4.13
|
|
Contingent Interest
|
|
|
5.08
|
|
Contingent Payment Regulations
|
|
|
5.08
|
|
Conversion Agent
|
|
|
2.03
|
|
Conversion Date
|
|
|
4.02
|
|
13
|
|
|
|
|
Term
|
|
Defined in Section
|
|
Current Market Price
|
|
|
4.06
|
|
DTC
|
|
|
2.01
|
|
Defaulted Interest
|
|
|
2.15
|
|
Depositary
|
|
|
2.01
|
|
Determination Date
|
|
|
4.06
|
|
Distributed Securities
|
|
|
4.06
|
|
Distribution Notice
|
|
|
4.01
|
|
Event of Default
|
|
|
7.01
|
|
ex-date
|
|
|
4.06
|
|
ex-dividend date
|
|
|
4.01
|
|
Expiration Date
|
|
|
4.06
|
|
Expiration Time
|
|
|
4.06
|
|
Fundamental Change Conversion Notice
|
|
|
4.01
|
|
Fundamental Change Purchase Date
|
|
|
3.01
|
|
Fundamental Change Purchase Notice
|
|
|
3.01
|
|
in connection with
|
|
|
4.10
|
|
Issuer Fundamental Change Notice
|
|
|
3.01
|
|
Make Whole Premium
|
|
|
4.01
|
|
Make Whole Transaction
|
|
|
4.01
|
|
Non-Payment Default
|
|
|
12.02
|
|
Notice of Default
|
|
|
7.01
|
|
Outstanding
|
|
|
2.09
|
|
Paying Agent
|
|
|
2.03
|
|
Payment Blockage Notice
|
|
|
12.02
|
|
Payment Default
|
|
|
12.02
|
|
Primary Registrar
|
|
|
2.03
|
|
Purchased Shares
|
|
|
4.06
|
|
purchases
|
|
|
4.06
|
|
record date
|
|
|
4.06
|
|
Reference Property
|
|
|
4.10
|
|
Registrar
|
|
|
2.03
|
|
Remaining Shares
|
|
|
4.13
|
|
Rights
|
|
|
4.06
|
|
Rights Plan
|
|
|
4.06
|
|
Special Payment Date
|
|
|
2.15
|
|
Spinoff Securities
|
|
|
4.06
|
|
Spinoff Valuation Period
|
|
|
4.06
|
|
tender offer
|
|
|
4.06
|
|
tendered shares
|
|
|
4.06
|
|
Triggering Distribution
|
|
|
4.06
|
|
Section 1.03.
Trust Indenture Act Provisions
.
Whenever this Indenture refers to a provision of the TIA, that provision is incorporated by
reference in and made a part of this Indenture. The following TIA term used in this Indenture has
the following meaning:
14
obligor
on the indenture securities means the Company or any other obligor on the
Securities.
All other terms used in this Indenture that are defined in the TIA, defined by TIA reference
to another statute or defined by any SEC rule and not otherwise defined herein have the meanings
assigned to them therein.
Section 1.04.
Rules Of Construction
.
For all purposes of this Indenture, except as otherwise provided or unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in
accordance with GAAP;
(3) words in the singular include the plural, and words in the plural include the
singular;
(4) the term merger includes a statutory share exchange and the term merged has a
correlative meaning;
(5) the masculine gender includes the feminine and the neuter;
(6) the terms include, including, and similar terms should be construed as if
followed by the phrase without limitation;
(7) references to agreements and other instruments include subsequent amendments
thereto; and
(8) all Article, Exhibit and Section references are to Articles, Exhibits and
Sections, respectively, of or to this Indenture unless otherwise specified herein, and the
terms herein, hereof and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision.
ARTICLE 2
THE SECURITIES
Section 2.01.
Form and Dating
.
The Securities and the Trustees certificate of authentication shall be substantially in the
respective forms set forth in Exhibit A, which Exhibit is incorporated in and made part of this
Indenture. The Securities may include such letters, numbers or other marks of identification and
such notations, legends, endorsements or changes as the Officer 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 by the Trustee, the Depositary, or as may be
required to comply with any applicable law or with any rule or regulation made pursuant
15
thereto or with any rule or regulation of any national securities exchange or automated
quotation system on which the Securities may be listed or quoted, or to conform to usage, or to
indicate any special limitations or restrictions to which any particular Securities are subject.
Each Security shall be dated the date of its authentication. The Securities are being offered for
exchange by the Company pursuant to the terms of the exchange offer contained in the Prospectus and
the related letter of transmittal.
(a)
Initial Global Securities
. All of the Securities are initially being offered for
exchange and shall be issued initially in the form of one or more Global Securities, which shall be
deposited on behalf of the holders exchanging for the Securities represented thereby with the
Trustee, at its Corporate Trust Office, as Securities Custodian for the depositary, The Depository
Trust Company (
DTC
, and such depositary, or any successor thereto, being hereinafter
referred to as the
Depositary
), and registered in the name of its nominee, Cede & Co. (or
any successor thereto), for the accounts of participants in the Depositary, duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate principal amount of
the Global Securities may from time to time be increased or decreased by adjustments made on the
records of the Securities Custodian as hereinafter provided, subject in each case to compliance
with the Applicable Procedures.
(b)
Global Securities In General
. Each Global Security shall represent such of the
outstanding Securities as shall be specified therein and each shall provide that it shall represent
the aggregate principal amount of outstanding Securities from time to time endorsed thereon and
that the aggregate principal amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges, purchases, redemptions or
conversions of such Securities. Any adjustment of the aggregate principal amount of a Global
Security to reflect the amount of any increase or decrease in the amount of outstanding Securities
represented thereby shall be made by the Trustee in accordance with instructions given by the
Holder thereof and shall be made on the records of the Trustee and the Depositary.
Members of, or participants in, the Depositary (
Agent Members
) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by the Depositary or
under the Global Security, and the Depositary (including, for this purpose, its nominee) may be
treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute
owner and Holder of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall (1) prevent the Company, the Trustee or any agent of the Company or
the Trustee from giving effect to any written certification, proxy or other authorization furnished
by the Depositary or (2) impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any Security.
(c)
Book Entry Provisions
. The Company shall execute and the Trustee shall, in
accordance with this Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (1) shall be registered in the name of the Depositary or its nominee, (2) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositarys instructions and (3)
shall bear legends substantially to the following effect:
16
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE FOR
SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR
IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
Section 2.02.
Execution and Authentication
.
(a) The aggregate principal amount of Securities which may be authenticated and delivered
under this Indenture is limited to $[ ],000,000, except as provided in Sections 2.07 and 2.08.
(b) The Securities shall be executed on behalf of the Company by one of its Officers. The
signatures of any of the Officers on the Securities may be manual or facsimile.
(c) Securities bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
(d) No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by manual signature of
an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the
only evidence, that such Security has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
(e) Each Security shall be dated the date of its authentication.
17
(f) The Trustee shall authenticate and make available for delivery Securities for original
issue in the aggregate principal amount of up to $[ ],000,000 upon receipt of a Company Order.
The Company Order shall specify the amount of Securities to be authenticated, shall provide that
all such Securities will be represented by a Global Security and the date on which each original
issue of Securities is to be authenticated.
(g) The Trustee shall act as the initial authenticating agent. Thereafter, the Trustee may
appoint an authenticating agent acceptable to the Company to authenticate Securities. An
authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in
this Indenture to authentication by the Trustee includes authentication by such agent. An
authenticating agent shall have the same rights as an Agent to deal with the Company or an
Affiliate of the Company.
(h) The Securities shall be issuable only in registered form without coupons and only in
denominations of $1,000 principal amount and any integral multiple thereof.
(i) In case the Company, pursuant to Article 6, shall, in a single transaction or through a
series of related transactions, be consolidated or merged with or into any other Person or shall
sell, assign, convey, transfer, lease or otherwise dispose of all or substantially all of its
properties and assets to any Person, and the successor Person resulting from such consolidation or
surviving such merger, or into which the Company shall have been merged, or the Successor Person
which shall have participated in the sale, assignment, conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Article 6, any of the Securities authenticated or delivered prior to such
consolidation, merger, sale, assignment, conveyance, transfer, lease or other disposition may, from
time to time, at the request of the Successor Person, be exchanged for other Securities executed in
the name of the Successor Person with such changes in phraseology and form as may be appropriate,
but otherwise in substance of like tenor as the Securities surrendered for such exchange and of
like principal amount; and the Trustee, upon the request of the Successor Person, shall
authenticate and deliver Securities as specified in such request for the purpose of such exchange.
If Securities shall at any time be authenticated and delivered in any new name of a successor
Person pursuant to this Section 2.02 in exchange or substitution for or upon registration of
transfer of any Securities, such Successor Person, at the option of the Holders but without expense
to them, shall provide for the exchange of all Securities at the time Outstanding for Securities
authenticated and delivered in such new name.
Section 2.03.
Registrar, Paying Agent and Conversion Agent
.
(a) The Company shall maintain one or more offices or agencies where Securities may be
presented for registration of transfer or for exchange (each, a
Registrar
), one or more
offices or agencies where Securities may be presented or surrendered for payment (each, a
Paying Agent
), one or more offices or agencies where Securities may be presented for
conversion (each, a
Conversion Agent
) and one or more offices or agencies where notices
and demands to or upon the Company in respect of the Securities and this Indenture may be served.
The Company will at all times maintain a Paying Agent, Conversion Agent, Registrar and an office or
agency where notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served in the Borough of Manhattan, The City of New York. One of
18
the Registrars (the
Primary Registrar
) shall keep a register of the Securities and
of their transfer and exchange. At the option of the Company, any payment of cash may be made by
check mailed to the Holders at their addresses set forth in the register of Holders.
(b) The Company shall enter into an appropriate agency agreement with any Agent not a party to
this Indenture, provided that the Agent may be an Affiliate of the Trustee. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The Company shall notify the
Trustee of the name and address, and any change in the name or address, of any Agent not a party to
this Indenture. If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent, or
agent for service of notices and demands in any place required by this Indenture, or fails to give
the foregoing notice, the Trustee shall act as such. The Company or any Affiliate of the Company
may act as Paying Agent (except for the purposes of Section 5.01 and Article 9).
(c) The Company hereby initially designates the Trustee as Paying Agent, Registrar, Securities
Custodian and Conversion Agent, and designates the Corporate Trust Office of the Trustee as the
office or agency of the Company for each of the aforesaid purposes and as the office or agency
where notices and demands to or upon the Company in respect of the Securities and this Indenture
may be served.
Section 2.04.
Paying Agent To Hold Money In Trust
.
Unless otherwise specified herein, prior to 10:00 a.m., New York City time, on each due date
of the payment of principal of, or interest (including Contingent Interest and Additional Interest,
if any) on, any Securities, the Company shall deposit a sum sufficient to pay such principal or
interest so becoming due. Subject to Section 9.02, a Paying Agent shall hold in trust for the
benefit of Holders of Securities or the Trustee all money held by the Paying Agent for the payment
of principal of, or interest (including Contingent Interest and Additional Interest, if any) on,
the Securities, and shall notify the Trustee of any failure by the Company (or any other obligor on
the Securities) to make any such payment. If the Company or an Affiliate of the Company acts as
Paying Agent, it shall, before 10:00 a.m., New York City time, on each due date of the principal
of, or interest (including Contingent Interest and Additional Interest, if any) on, any Securities,
segregate the money and hold it as a separate trust fund for the benefit of Holders. The Company at
any time may require a Paying Agent to pay all money held by it to the Trustee, and the Trustee may
at any time during the continuance of any Default, upon written request to a Paying Agent, require
such Paying Agent to pay forthwith to the Trustee all sums so held in trust by such Paying Agent.
Upon doing so, the Paying Agent (other than the Company) shall have no further liability for the
money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, premium, if any, or interest (including Contingent
Interest and Additional Interest, if any) on any Security and remaining unclaimed for two years
after such principal and premium, if any, or interest (including Contingent Interest and Additional
Interest, if any) has become due and payable shall promptly be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with respect
19
to such trust money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in
The New York Times
and
The Wall Street Journal
(national edition), and mail to each such Holder, notice that such
money remains unclaimed and that, after a date specified therein, which shall not be less than 30
days from the date of such notification, publication and mailing, any unclaimed balance of such
money then remaining will promptly be repaid to the Company.
Section 2.05.
Conversion Agent To Hold Money In Trust
.
The Company shall require each Conversion Agent (that is not the Trustee) to agree in writing
that the Conversion Agent will hold in trust for the benefit of Holders or the Trustee all shares
of Common Stock held by the Conversion Agent for the delivery of Common Stock when due upon
conversion, and will notify the Trustee of any default by the Company in making any such delivery.
While any such default continues, the Trustee may require a Conversion Agent to deliver all shares
of Common Stock held by it to the Trustee. The Company at any time may require a Conversion Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Conversion Agent
(if other than the Company or a Subsidiary) shall have no further liability for the money. If the
Company or a Subsidiary acts as Conversion Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all shares held by it as Conversion Agent. Upon any bankruptcy
or reorganization proceedings relating to the Company, the Trustee shall serve as Conversion Agent
for the Securities.
Section 2.06.
Lists of Holders of Securities
.
The Trustee shall preserve in as current a form as is reasonably practicable the most recent
list available to it of the names and addresses of Holders of Securities. The Company shall
furnish or cause the Registrar to furnish to the Trustee (a) semiannually, not more than 10 days
after each Regular Record Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date; and (b) at such other times as
the Trustee may reasonably request in writing, within 30 days after receipt by the Company of any
such request, a list of similar form and content to that in subsection (a) hereof as of a date not
more than 15 days prior to the time such list is furnished; provided, however, that if and so long
as the Trustee shall be the Primary Registrar, no such list need be furnished.
Section 2.07.
Transfer and Exchange
.
(a) When a Security is presented to a Registrar with a request to register a transfer thereof
or to exchange such Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as requested if its
requirements for such transactions are met; provided, however, that every Security presented or
surrendered for registration of transfer or exchange shall be duly endorsed or accompanied by an
assignment form and, if applicable, a transfer certificate each in the form included in Exhibit A,
and completed in a manner satisfactory to the Registrar and duly executed by the Holder thereof or
its attorney duly authorized in writing. To permit registration of transfers and exchanges, upon
surrender of any Security for registration of transfer or exchange at an office or agency
maintained pursuant to Section 2.03, the Company shall execute and the
20
Trustee shall authenticate Securities of a like aggregate principal amount at the Registrars
request. Any exchange or transfer shall be without charge, except that the Company or the Registrar
may require payment of a sum sufficient to cover any transfer tax or similar governmental charge
that may be imposed in relation thereto; provided that this sentence shall not apply to any
exchange pursuant to Section 2.11, 4.02(e) or 10.06.
(b) Neither the Company, any Registrar nor the Trustee shall be required to register the
transfer of or exchange any Securities or portions thereof in respect of which (i) a Fundamental
Change Purchase Notice has been delivered and not withdrawn by the Holder thereof (except, in the
case of the purchase of a Security in part, the portion thereof not to be purchased) or (ii) a
notice of redemption has been delivered.
(c) All Securities issued upon any transfer or exchange of Securities shall be valid
obligations of the Company, evidencing the same debt and entitled to the same benefits under this
Indenture as the Securities surrendered upon such registration of transfer or exchange.
(d) Any Registrar appointed pursuant to Section 2.03 shall provide to the Trustee such
information as the Trustee may reasonably require in connection with the delivery by such Registrar
of Securities upon transfer or exchange of Securities.
(e) Each Holder of a Security agrees to indemnify the Company and the Trustee against any
liability that may result from the registration of transfer, exchange or assignment of such
Holders Security in violation of any provision of this Indenture and/or applicable United States
federal or state securities law.
(f) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest (including Contingent Interest and Additional
Interest, if any) in any Security (including any transfers between or among Agent Members or other
beneficial owners of interests in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Section 2.08.
Replacement Securities
.
(a) If (1) any mutilated Security is surrendered to the Trustee, or (2) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security,
and there is delivered to the Company and the Trustee, such security or indemnity, in each case, as
may be required by them to save each of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a protected purchaser, the Company
shall execute and upon a Company Request the Trustee shall authenticate and deliver, in exchange
for any such mutilated Security or in lieu of any such destroyed, lost or stolen Security, a
replacement Security of like tenor and principal amount, bearing a number not contemporaneously
outstanding.
(b) If any such mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, or is about to be purchased by the Company pursuant to Article 3, or
21
converted pursuant to Article 4, the Company in its discretion may, instead of issuing a new
Security, pay, purchase or convert such Security, as the case may be.
(c) Upon the issuance of any new Securities under this Section 2.08, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of counsel and the
Trustee) in connection therewith.
(d) Every new Security issued pursuant to this Section 2.08 in lieu of any mutilated,
destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the mutilated, destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
(e) The provisions of this Section 2.08 are (to the extent lawful) exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 2.09.
Outstanding Securities
.
(a) Securities outstanding (
Outstanding
) at any time are all Securities
authenticated by the Trustee, except for those canceled by it, those purchased pursuant to Article
3, those converted pursuant to Article 4, those delivered to the Trustee for cancellation or
surrendered for transfer or exchange and those described in this Section 2.09 as not Outstanding.
(b) If a Security is replaced pursuant to Section 2.08, such replaced Security ceases to be
Outstanding unless the Company receives proof satisfactory to it that the replaced Security is held
by a protected purchaser.
(c) If a Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of
any thereof) holds in respect of the Outstanding Securities on a Redemption Date, a Fundamental
Change Purchase Date or the Final Maturity Date money sufficient to pay the principal of (including
premium, if any) and accrued interest (including Contingent Interest and Additional Interest, if
any) on Securities (or portions thereof) payable on that date, then on and after such Redemption
Date, Fundamental Change Purchase Date or Final Maturity Date, as the case may be, such Securities
(or portions thereof, as the case may be) shall cease to be Outstanding and interest (including
Contingent Interest and Additional Interest, if any) on them shall cease to accrue.
(d) Subject to the restrictions contained in Section 2.10, a Security does not cease to be
Outstanding because the Company or an Affiliate of the Company holds the Security.
Section 2.10.
Treasury Securities
.
In determining whether the Holders of the required principal amount of Securities have
concurred in any request, demand, authorization, notice, direction, waiver or consent, Securities
owned by the Company or any other obligor on the Securities or by any Affiliate of the Company or
of such other obligor shall be disregarded, except that, for purposes of determining
22
whether the Trustee shall be protected in relying on any such request, demand, authorization,
notice, direction, waiver or consent, only Securities which a Trust Officer of the Trustee actually
knows are so owned shall be so disregarded.
Section 2.11.
Temporary Securities
.
Until definitive Securities are ready for delivery, the Company may prepare and execute, and,
upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Securities.
Temporary Securities shall be substantially in the form of definitive Securities but may have
variations that the Company with the consent of the Trustee considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate and deliver definitive Securities in exchange for temporary Securities representing an
equal principal amount of Securities. The temporary Securities will be exchanged for definitive
Securities in accordance with Section 2.07 hereof. Until so exchanged, temporary Securities shall
have the same rights under this Indenture as the definitive Securities.
Section 2.12.
Cancellation
.
The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar,
the Paying Agent and the Conversion Agent shall forward to the Trustee any Securities surrendered
to them for transfer, exchange, purchase, payment or conversion. The Trustee and no one else shall
cancel, in accordance with its standard procedures, all Securities surrendered for transfer,
exchange, purchase, payment, conversion or cancellation and shall dispose of the cancelled
Securities in accordance with its customary procedures or deliver the canceled Securities to the
Company upon request. All Securities which are redeemed or purchased or otherwise acquired by the
Company or any of its Subsidiaries prior to the Final Maturity Date pursuant to Article 3 shall be
delivered to the Trustee for cancellation, and the Company may not hold or resell such Securities
or issue any new Securities to replace any such Securities or any Securities that any Holder has
converted pursuant to Article 4. The Trustee shall maintain a record of all canceled Securities.
The Trustee shall provide the Company a list of all Securities that have been canceled from time to
time as requested by the Company in writing.
Section 2.13.
CUSIP and ISIN Numbers
.
The Company in issuing the Securities may use one or more CUSIP or ISIN numbers (if then
generally in use), and, if so, the Trustee shall use such CUSIP and ISIN numbers in a notice of
redemption or Fundamental Change Purchase Notice as a convenience to Holders; provided that any
such notice may state that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of redemption or Fundamental Change
Purchase Notice and that reliance may be placed only on the other identification numbers printed on
the Securities, and any such purchase shall not be affected by any defect in or omission of such
numbers. The Company will notify the Trustee in writing of any change in the
CUSIP
numbers.
23
Section 2.14.
Calculations
.
The calculation of the Redemption Price, Fundamental Change Purchase Price, Conversion Rate,
Conversion Price and each other calculation to be made hereunder shall be the obligation of the
Company, except for such calculations required by clause (1) of Section 4.01(a), which will be
determined by the Conversion Agent, on behalf of the Company. All calculations made by the Company
as contemplated pursuant to this Section 2.14 or otherwise pursuant to the Securities shall be made
in good faith and shall be final and binding on the Company and the Holders absent manifest error.
The Trustee, Paying Agent and Conversion Agent shall not be obligated to recalculate, recompute or
confirm any such calculations made by the Company, and the Trustee is entitled to conclusively rely
upon the accuracy of the Companys calculation without independent verification thereof. The
Company shall provide a schedule of its calculations to the Trustee upon the Trustees request,
certified by an officer, promptly after making such calculations.
Section 2.15.
Payment of Interest; Interest Rights Preserved
.
Interest on any Security which is payable, and is punctually paid or duly provided for, on the
Final Maturity Date of such interest shall be paid to the Person in whose name the Security is
registered at the close of business on the Regular Record Date for such interest payment.
Any interest (including Contingent Interest and Additional Interest, if any) on any Security
which is payable, but is not punctually paid or duly provided for, on the Stated Maturity of such
interest, and interest on such defaulted interest at the then applicable interest rate borne by the
Securities, to the extent lawful (such defaulted interest and interest thereon herein collectively
called
Defaulted Interest
), shall forthwith cease to be payable to the Holder on the
Regular Record Date; and such Defaulted Interest may be paid by the Company, at its election in
each case, as provided in Subsection (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the Persons in whose
names the Securities are registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each
Security and the date (not less than 20 days after such notice) of the proposed payment (the
Special Payment Date
), and on the date of payment 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 Special Payment Date, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this subsection 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 Special Payment Date 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 in writing of such Special Record Date. Unless the Company issues
a press release to the same effect, in the name and at the expense of the Company, the Trustee
shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at its address as it appears in
the Security Register, not less than 10 days prior to
24
such Special Record Date or notify in such other manner as the Trustee determines, including
in accordance with any Applicable Procedures. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date and Special Payment Date therefor having been so mailed or
otherwise conveyed, such Defaulted Interest shall be paid to the Persons in whose names the
Securities are registered on such Special Record Date and shall no longer be payable pursuant to
the following paragraph (b).
(b) The Company may make payment of any Defaulted Interest in any other lawful manner not
inconsistent with the requirements of any national securities exchange on which the Securities may
be listed, and upon such notice as may be required by this Indenture not inconsistent with the
requirements of such exchange, if, after written notice given by the Company to the Trustee of the
proposed payment pursuant to this subsection, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section 2.15, each Security delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest (including Contingent Interest and Additional Interest, if any)
accrued and unpaid, and to accrue, which were carried by such other Security.
All references to interest in this Indenture include, without limitation, all rights to the
payment of Contingent Interest and Additional Interest.
Section 2.16.
Computation of Interest
.
Interest on the Securities shall be computed on the basis of a 360-day year comprised of
twelve 30-day months.
ARTICLE 3
PURCHASE
Section 3.01.
Purchase of Securities by the Company for Cash at Option of the Holder Upon
a Fundamental Change
.
(a) If a Fundamental Change occurs prior to the Final Maturity Date, each Holder of a Security
shall have the right, at the option of the Holder, to require the Company to purchase for cash all
or any portion of the Securities of such Holder equal to $1,000 principal amount (or any integral
multiple thereof) at the Fundamental Change Purchase Price, on the date specified by the Company
that is 30 Business Days after the later of the Fundamental Change Effective Date and the date the
Issuer Fundamental Change Notice is given by the Company pursuant to subsection 3.01(b) (the
Fundamental Change Purchase Date
).
(b) On or before the 30th day after the Company knows or reasonably should know of the
occurrence of a Fundamental Change, the Company shall mail a written notice of the Fundamental
Change and of the resulting purchase right to the Trustee, the Paying Agent and to each Holder of
record of Securities (an
Issuer Fundamental Change Notice
). The Issuer Fundamental
Change Notice shall include the form of a Fundamental Change Purchase Notice to be completed by the
Holder and shall state:
25
(1) the events causing such Fundamental Change;
(2) the date (or expected date) of such Fundamental Change;
(3) the last date by which the Fundamental Change Purchase Notice must be delivered to
elect the purchase option pursuant to this Section 3.01;
(4) the Fundamental Change Purchase Date;
(5) the Fundamental Change Purchase Price;
(6) the Holders right to require the Company to purchase the Securities;
(7) the name and address of each Paying Agent and Conversion Agent;
(8) the then effective Conversion Rate and any adjustments to the Conversion Rate
resulting from such Fundamental Change;
(9) the procedures that the Holder must follow to exercise rights under Article 4 of
this Indenture and that the Securities as to which a Fundamental Change Purchase Notice has
been given may be converted into Common Stock pursuant to Article 4 of this Indenture only
to the extent that the Fundamental Change Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(10) the procedures that the Holder must follow to exercise rights under this Section
3.01;
(11) the procedures for withdrawing a Fundamental Change Purchase Notice;
(12) that, unless the Company fails to pay such Fundamental Change Purchase Price,
Securities covered by any Fundamental Change Purchase Notice will cease to be outstanding
and interest (including Contingent Interest and Additional Interest, if any) will cease to
accrue on and after the Fundamental Change Purchase Date; and
(13) the CUSIP number of the Securities.
At the Companys written request, the Trustee shall give such Issuer Fundamental Change Notice
in the Companys name and at the Companys expense; provided that, in all cases, the text of such
Issuer Fundamental Change Notice shall be prepared by the Company. In connection with the delivery
of the Issuer Fundamental Change Notice to the Holders, the Company shall publish a notice
containing substantially the same information that is required in the Issuer Fundamental Change
Notice in a newspaper of general circulation in The City of New York or publish information on a
website of the Company or through such other public medium the Company may use at that time. If
any of the Securities is in the form of a Global Security, then the Company shall modify such
notice to the extent necessary to accord with the Applicable Procedures relating to the purchase of
Global Securities.
26
(c) A Holder may exercise its rights specified in Section 3.01(a) upon delivery of a written
notice (which shall be in substantially the form attached as Exhibit A under the heading
Fundamental Change Purchase Notice and which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case of Global
Securities, may be delivered electronically or by other means in accordance with the Depositarys
Applicable Procedures) of the exercise of such rights (a
Fundamental Change Purchase
Notice
) to the Paying Agent at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Purchase Date, subject to extension to comply with
applicable law.
(1) The Fundamental Change Purchase Notice shall state: (A) if the Securities are in
certificated form, the certificate numbers of the Securities which the Holder will deliver
to be purchased (or, if the Security is held in global form, any other items required to
comply with the Applicable Procedures), (B) the portion of the principal amount of the
Securities which the Holder will deliver to be purchased, which portion must be a principal
amount of $1,000 or any integral multiple thereof and (C) that such Security shall be
purchased as of the Fundamental Change Purchase Date pursuant to the terms and conditions
specified in the Securities and in this Indenture.
(2) The delivery of a Security for which a Fundamental Change Purchase Notice has been
timely delivered, together with any necessary endorsements, to any Paying Agent and not
validly withdrawn prior to, on or after the Fundamental Change Purchase Date (together with
all necessary endorsements) at the office of such Paying Agent shall be a condition to the
receipt by the Holder of the Fundamental Change Purchase Price therefor.
(3) The Company shall only be obliged to purchase, pursuant to this Section 3.01, a
portion of a Security if the principal amount of such portion is $1,000 or an integral
multiple thereof (provisions of this Indenture that apply to the purchase of all of a
Security also apply to the purchase of such portion of such Security).
(4) Notwithstanding anything herein to the contrary, any Holder delivering to a Paying
Agent the Fundamental Change Purchase Notice contemplated by this Section 3.01(c) shall have
the right to withdraw such Fundamental Change Purchase Notice in whole or in a portion
thereof that is a principal amount of $1,000 or in an integral multiple thereof at any time
prior to the close of business on the Business Day prior to the Fundamental Change Purchase
Date by delivery of a written notice of withdrawal to the Paying Agent in accordance with
Section 3.02(b).
(5) A Paying Agent shall promptly notify the Company of the receipt by it of any
Fundamental Change Purchase Notice or written withdrawal thereof.
(6) Anything herein to the contrary notwithstanding, in the case of Global Securities,
any Fundamental Change Purchase Notice may be delivered or withdrawn and such Securities may
be surrendered or delivered for purchase in accordance with the Applicable Procedures as in
effect from time to time.
27
(d) The Company shall deposit cash at the time and in the manner as provided in Section 3.03,
sufficient to pay the aggregate Fundamental Change Purchase Price of all Securities to be purchased
pursuant to this Section 3.01.
Section 3.02.
Effect of Fundamental Change Purchase Notice
.
(a) Upon receipt by any Paying Agent of a properly completed Fundamental Change Purchase
Notice from a Holder, the Holder of the Security in respect of which such Fundamental Change
Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn as
specified in Section 3.02(b) or the Securities have previously been submitted for conversion)
thereafter be entitled to receive the Fundamental Change Purchase Price with respect to such
Security, subject to the occurrence of the Fundamental Change Effective Date. Such Fundamental
Change Purchase Price shall be paid to such Holder promptly, but no later than two Business Days,
following the later of (1) the Fundamental Change Purchase Date (provided that the conditions in
Section 3.01 have been satisfied) and (2) the time of delivery of such Security to a Paying Agent
by the Holder thereof in the manner required by Section 3.01(c). Securities in respect of which a
Fundamental Change Purchase Notice has been given by the Holder thereof may not be converted into
shares of Common Stock pursuant to Article 4 on or after the date of the delivery of such
Fundamental Change Purchase Notice unless such Fundamental Change Purchase Notice has first been
validly withdrawn in accordance with Section 3.02(b) with respect to the Securities to be
converted.
(b) A Fundamental Change Purchase Notice may be withdrawn by means of a written notice (which
may be delivered by mail, overnight courier, hand delivery, facsimile transmission or in any other
written form and, in the case of Global Securities, may be delivered electronically or by other
means in accordance with the Applicable Procedures) of withdrawal delivered by the Holder to a
Paying Agent at any time prior to the close of business on the Business Day immediately prior to
the Fundamental Change Purchase Date, specifying (1) the principal amount of the Security or
portion thereof (which must be a principal amount of $1,000 or an integral multiple of $1,000 in
excess thereof) with respect to which such notice of withdrawal is being submitted, (2) if the
Securities are in certificated form, the certificate numbers of the Security being withdrawn in
whole or in part (or if the Securities are not certificated, such written notice must comply with
the procedures of the Depositary) and (3) the portion of the principal amount of the Security, if
any, that will remain subject to the Fundamental Change Purchase Notice, which portion must be a
principal amount of $1,000 or an integral multiple thereof.
Section 3.03.
Deposit of Fundamental Change Purchase Price
.
(a) On or before 10:00 a.m., New York City time, on the Business Day following the applicable
Fundamental Change Purchase Date, the Company shall deposit with the Trustee or with a Paying Agent
(or if the Company or an Affiliate of the Company is acting as the Paying Agent, shall segregate
and hold in trust as provided in Section 2.04) an amount of money (in immediately available funds
if deposited on or after such Fundamental Change Purchase Date), sufficient to pay the aggregate
Fundamental Change Purchase Price of all the Securities or portions thereof that are to be
purchased as of the Fundamental Change Purchase Date.
28
(b) If a Paying Agent or the Trustee holds on, or the Business Day following, the Fundamental
Change Purchase Date, in accordance with the terms hereof, an amount of money sufficient to pay the
Fundamental Change Purchase Price of any Security (or portion thereof) for which a Fundamental
Change Purchase Notice has been tendered and not withdrawn in accordance with this Indenture then,
immediately following the applicable Fundamental Change Purchase Date, whether or not the Security
is delivered to the Paying Agent, such Security shall cease to be outstanding, interest (including
Contingent Interest and Additional Interest, if any), shall cease to accrue, and the rights of the
Holder in respect of the Security shall terminate (other than the right to receive the Fundamental
Change Purchase Price upon delivery of the Security as aforesaid).
(c) The Paying Agent will promptly return to the respective Holders thereof any Securities
with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with
this Indenture.
(d) If a Fundamental Change Purchase Date falls after a Regular Record Date and on or before
the related Interest Payment Date, then interest (including Contingent Interest and Additional
Interest, if any) on the Securities payable to, but excluding, such Interest Payment Date will be
payable on such Interest Payment Date to the Holders in whose names the Securities are registered
at the close of business on such Regular Record Date.
Section 3.04.
Repayment to the Company
.
To the extent that the aggregate amount of cash deposited by the Company pursuant to Section
3.03 exceeds the aggregate Fundamental Change Purchase Price of the Securities or portions thereof
that the Company is obligated to purchase, then promptly after the Fundamental Change Purchase Date
the Trustee or a Paying Agent, as the case may be, shall return any such excess cash to the
Company, or if such money is then held by the Company in trust, it shall be discharged from the
trust.
Section 3.05.
Securities Purchased In Part
.
Any Security that is to be purchased only in part shall be surrendered at the office of a
Paying Agent, and promptly after the Fundamental Change Purchase Date, as the case may be, the
Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities, of such authorized denomination or
denominations as may be requested by such Holder (which must be equal to $1,000 principal amount or
any integral multiple thereof), in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered that is not purchased.
Section 3.06.
Compliance With Securities Laws Upon Purchase of Securities
.
In connection with any offer to purchase Securities under Section 3.01, the Company shall (a)
comply with the provisions of the tender offer rules under the Exchange Act which may then be
applicable, (b) file the related Schedule TO (or any successor or similar schedule, form or report)
if required under the Exchange Act, and (c) otherwise comply with all federal and state securities
laws in connection with such offer to purchase or purchase of Securities, all so as to permit the
rights of the Holders and obligations of the Company under Sections 3.01 through
29
3.04 to be exercised in the time and in the manner specified therein. To the extent that
compliance with any such laws, rules and regulations would result in a conflict with any of the
terms hereof, this Indenture is hereby modified to the extent required for the Company to comply
with such laws, rules and regulations.
Section 3.07.
Purchase of Securities In Open Market
.
The Company shall surrender any Security purchased by the Company pursuant to this Article 3
to the Trustee for cancellation. Any Securities surrendered to the Trustee for cancellation may not
be reissued or resold by the Company and will be canceled promptly in accordance with Section 2.12.
The Company may purchase Securities in the open market or by tender at any price or pursuant to
private agreements.
ARTICLE 4
CONVERSION
Section 4.01.
Conversion Privilege and Conversion Rate
.
(a) Subject to the obligation and the right of the Company to pay some or all of the
conversion consideration in cash in accordance with Section 4.13, and upon compliance with the
provisions of this Article 4, at the option of the Holder thereof, any Security or portion thereof
that is an integral multiple of $1,000 principal amount may be converted into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/10,000th of a share) of
Common Stock prior to the close of business on the Trading Day immediately preceding the Final
Maturity Date or such earlier date set forth in this Article 4, unless previously redeemed or
purchased by the Company pursuant to Section 3.01, at the Conversion Rate in effect at such time,
determined as hereinafter provided, and subject to the adjustments described below, during
specified periods, only under the following circumstances:
(1) during any calendar quarter commencing after March 31, 2010, and only during such
calendar quarter, if, as of the last day of the immediately preceding calendar quarter, the
Closing Price per share of the Common Stock for at least 20 Trading Days in the period of
the 30 consecutive Trading Days ending on the last Trading Day of such preceding calendar
quarter was more than 130% of the applicable Conversion Price on the last day of such
preceding fiscal quarter;
(2) if the Company distributes to all or substantially all holders of Common Stock any
rights entitling them to purchase, for a period expiring within 45 days of distribution,
Common Stock, or securities convertible into Common Stock, at less than, or having a
conversion price per share less than, the then current Closing Price per share of the Common
Stock;
(3) if the Company distributes to all or substantially all holders of Common Stock
assets, cash, debt securities or rights to purchase the Companys securities, which
distribution has a per share value as determined by the Board of Directors exceeding 15.0%
of the Closing Price per share of the Common Stock on the Trading Day immediately preceding
the declaration date for such distribution;
30
(4) if the Company is a party to any transaction or event (including, but not limited
to, any consolidation, merger or binding share exchange, other than changes resulting from a
subdivision or combination) pursuant to which all or substantially all shares of the Common
Stock would be converted into cash, securities or other property;
(5) if a Fundamental Change occurs;
(6) with respect to Securities called for redemption pursuant to Section 11.01, until
5:00 p.m., New York City time, on the Trading Day prior to the relevant Redemption Date;
(7) at any time during the period beginning on August 31, 2029 and ending at 5:00 p.m.,
New York City time, on the Trading Day immediately preceding the Final Maturity Date; or
(8) on any Business Day during the five Business Day period after any five consecutive
Trading Day period in which the Trading Price per $1,000 principal amount of Securities, as
determined following a request by a Holder in accordance with the procedures described in
Section 4.01(e)(ii), for each day of that period was less than 98% of the product of the
Closing Price of the Common Stock and the then applicable Conversion Rate per $1,000
principal amount of Securities.
(b) In the case of a distribution contemplated by clauses (2) and (3) of Section 4.01(a), the
Company shall notify Holders and the Trustee at least 25 Trading Days prior to the ex-dividend date
(defined below) for such distribution (the
Distribution Notice
); provided that if the
Company distributes rights pursuant to a stockholder rights agreement, it shall give the
Distribution Notice on the first Business Day immediately after the Company is required to give
notice generally to its stockholders pursuant to such stockholder rights agreement if such date is
less than 25 Trading Days prior to the date of such distribution. Once the Company has given the
Distribution Notice, Holders may surrender their Securities for conversion at any time until the
earlier of the close of business on the last Business Day preceding the ex-dividend date or the
Companys announcement that such distribution will not take place. In the event of a distribution
contemplated by clauses (2) and (3) of Section 4.01(a), Holders may not convert the Securities if
the Holders will otherwise participate in such distribution without converting their Securities.
The
ex-dividend date
is the first date upon which a sale of the Common Stock does not
automatically transfer the right to receive the relevant distribution from the seller of the Common
Stock to its buyer. The Company will provide written notice to the Conversion Agent as soon as
reasonably practicable of any anticipated or actual event or transaction that will cause or causes
the Securities to become convertible pursuant to clauses (2) or (3) of Section 4.01(a).
(c) In the case of a transaction contemplated by clause (4) of Section 4.01(a) (regardless of
whether the transaction constitutes a Fundamental Change), the Company will notify Holders and the
Trustee as promptly as practicable following the date the Company publicly announces such
transaction (but in no event less than 15 days prior to the anticipated effective date of such
transaction, or, if such transaction also constitutes a Fundamental Change, no later than the date
the Issuer Fundamental Change Notice is provided). Holders may surrender Securities for conversion
at any time from and after the date which is 15 days prior to
31
the anticipated effective date of such transaction until the earlier of the date which is 35
days after the actual effective date of such transaction or the date of the Companys announcement
that such transaction will not take place. Notwithstanding anything else contained herein, the
Securities shall not become subject to conversion by reason of a merger, consolidation, or other
transaction effected with one of the Companys direct or indirect Subsidiaries for the purpose of
changing the Companys state of incorporation to any other state within the United States or the
District of Columbia.
(d) In the case of a Fundamental Change, the Company shall notify the Holders of Securities
and the Trustee at least 15 days prior to the anticipated effective date of any Fundamental Change
that the Company knows or reasonably should know will occur (a
Fundamental Change Conversion
Notice
). If the Company does not know, or should not reasonably know, that a Fundamental
Change will occur until the date that is within 15 days before the anticipated effective date of
such Fundamental Change, the Company shall deliver a Fundamental Change Conversion Notice to the
Holders and the Trustee promptly after the Company has knowledge of such Fundamental Change.
Holders may surrender Securities for conversion at any time beginning 15 days before the
anticipated effective date of a Fundamental Change and until the Trading Day immediately preceding
the Fundamental Change Purchase Date (unless the Company shall fail to make the Fundamental Change
Purchase Price payment when due in accordance with Article 3, in which case the conversion right
shall terminate at the close of business on the date such failure is cured and such Security is
purchased).
(e) (i) For each calendar quarter of the Company, beginning with the calendar quarter ending
March 31, 2010, the Conversion Agent, on behalf of the Company, will determine, on the first
Business Day following the last Trading Day of such calendar quarter, whether the Securities are
convertible pursuant to clause (1) of Section 4.01(a), and, if so, will notify the Trustee (to the
extent the Trustee is not also serving as the Conversion Agent) and the Company in writing.
(ii) The Trustee shall have no obligation to determine the Trading Price of the
Securities and whether the Securities are convertible pursuant to clause (8) of Section
4.01(a) unless the Company has requested such determination; and the Company shall have no
obligation to make such request unless a Holder of the Securities provides the Company with
reasonable evidence that the Trading Price per $1,000 principal amount of Securities would
be less than 98% of the product of the Closing Price of the Common Stock and the then
applicable Conversion Rate per $1,000 principal amount of Securities. At such time, the
Company shall instruct the Trustee to determine the Trading Price of the Securities
beginning on the next Trading Day and on each successive Trading Day until the Trading Price
per $1,000 principal amount of the Securities is greater than 98% of the product of the
Closing Price of the Common Stock and the then applicable Conversion Rate per $1,000
principal amount of the Securities.
(f) The conversion rights pursuant to this Article 4 shall commence on the Issue Date of the
Securities and expire at the close of business on the Business Day immediately preceding the Final
Maturity Date, but shall be exercisable only during the time periods specified with respect to each
circumstance pursuant to which the Securities become convertible, subject, in the case of
conversion of any Global Security, to any Applicable Procedures. If a Security is
32
convertible as a result of a Fundamental Change, such conversion right shall commence and
terminate as set forth in Section 4.01(d). Securities in respect of which a Fundamental Change
Purchase Notice has been delivered may not be surrendered for conversion pursuant to this Article 4
prior to a valid withdrawal of such Fundamental Change Purchase Notice, in accordance with the
provisions of Article 3.
(g) Provisions of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.
(h) A Holder of Securities is not entitled to any rights of a holder of Common Stock until
such Holder has converted its Securities into Common Stock, and only to the extent such Securities
are deemed to have been converted into Common Stock pursuant to this Article 4.
(i) The Conversion Rate shall be adjusted in certain instances as provided in Section 4.01(j)
and Section 4.06.
(j) If on or prior to the Final Maturity Date, there shall have occurred a transaction
described in clauses (1), (2) or (4) of the definition of a Change of Control (any such transaction
being referred to in this Clause 4.01(j) as a
Make Whole Transaction
), and a Holder
elects to convert its Securities in connection with such Make Whole Transaction, the Company
shall pay a
Make Whole Premium
by increasing the applicable Conversion Rate for the
Securities surrendered for conversion by a number of additional shares of Common Stock as provided
below (the
Additional Shares
). A conversion of Securities will be deemed for these
purposes to be in connection with such a Make Whole Transaction if the notice of conversion is
received by the Conversion Agent from and including the date that is 10 Trading Days prior to the
Fundamental Change Effective Date of such Make Whole Transaction and prior to and including the
close of business on the business day prior to the Fundamental Change Purchase Date of such Make
Whole Transaction. The number of Additional Shares per $1,000 principal amount of Securities
constituting the Make Whole Premium shall be determined by reference to the table below, based on
the Fundamental Change Effective Date of such Make Whole Transaction and the Stock Price; provided
that if the Stock Price or Fundamental Change Effective Date are not set forth on the table: (i) if
the actual Stock Price on the Fundamental Change Effective Date is between two Stock Prices on the
table or the actual Fundamental Change Effective Date is between two Fundamental Change Effective
Dates on the table, the Make Whole Premium will be determined by a straight-line interpolation
between the Make Whole Premiums set forth for the higher and lower Stock Prices and the two
Fundamental Change Effective Dates on the table based on a 360-day year, as applicable, (ii) if the
actual Stock Price on the Fundamental Change Effective Date exceeds $[ ] per share of Common
Stock, subject to adjustment as set forth herein, no Make Whole Premium will be paid, and (iii) if
the actual Stock Price on the Fundamental Change Effective Date is less than $[ ] per share of
Common Stock, subject to adjustment as set forth herein, no Make Whole Premium will be paid. If
Holders of Common Stock receive only cash in the Make Whole Transaction, the Stock Price shall be
the cash amount paid per share of Common Stock in connection with the Make Whole Transaction.
Otherwise, the Stock Price shall be equal to the average Closing Price of Common Stock over the 10
consecutive Trading Day period ending on the Trading Day immediately preceding, and excluding, the
applicable Fundamental Change Effective Date.
33
Make Whole Premium Upon a Make Whole Transaction (Number of Additional Shares)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Price
|
Effective Date
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
|
$
|
|
November [ ], 2009
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2011
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2012
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2013
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2014
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2015
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2016
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2017
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2018
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2019
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2024
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
November 15, 2029
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Stock Prices set forth in the first row of the table above and the dollar amounts set
forth in clauses (ii) and (iii) in the first paragraph of this Section 4.01(j) (together, the
Dollar Limitations
) will be adjusted as of any date on which the Conversion Rate of the
Securities is adjusted other than an adjustment pursuant to the Make Whole Premium described above.
The adjusted Stock Prices and the Dollar Limitations will equal the Stock Prices and the Dollar
Limitations applicable immediately prior to such adjustment multiplied by a fraction, the numerator
of which is the Conversion Rate immediately prior to the adjustment giving rise to the Stock Price
and Dollar Limitation adjustment and the denominator of which is the Conversion Rate as so
adjusted. The number of Additional Shares set forth in the table above will be adjusted in the
same manner as the Conversion Rate as set forth in Section 4.06 hereof, other than as a result of
an adjustment to the Conversion Rate by adding the Make Whole Premium as described above.
Notwithstanding the foregoing, in no event will the total number of shares of Common Stock
issuable upon conversion of a Security exceed [ ] shares per $1,000 principal amount of
Securities, subject to proportional adjustment in the same manner as the Conversion Rate as set
forth in Section 4.06(a) hereof.
(k) By delivering the amount of cash and, if applicable, the number of shares of Common Stock
issuable on conversion to the Trustee, the Company will be deemed to have satisfied its obligation
to pay the principal amount of the Securities so converted and its
34
obligation to pay accrued and unpaid interest (including Contingent Interest and Additional
Interest, if any) attributable to the period from the most recent Interest Payment Date through the
Conversion Date (which amount will be deemed paid in full rather than cancelled, extinguished or
forfeited).
Section 4.02.
Conversion Procedure
.
(a) To convert a Security, a Holder must (1) complete and manually sign the conversion notice
on the back of the Security (which shall be in substantially the form attached as Exhibit A under
the heading Conversion Notice) and deliver such notice to the Conversion Agent, (2) surrender the
Security to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents if
required by the Conversion Agent, (4) pay an amount equal to the interest (including Contingent
Interest and Additional Interest, if any) as required by Section 4.02(c) and (5) pay all transfer
or similar taxes, if required pursuant to Section 4.04. The date on which the Holder of a Security
satisfies all of the requirements under this Indenture to convert a Security is the
Conversion
Date
with respect to such Security. Upon the conversion of a Security, the Company will pay
the cash and deliver the shares of Common Stock, as applicable, without service charge, as promptly
as practicable after the later of the Conversion Date and the date that all calculations necessary
to make such payment and delivery have been made, but in no event later than 10 Business Days after
the later of those dates. Anything herein to the contrary notwithstanding, in the case of Global
Securities, conversion notices may be delivered and such Securities may be surrendered for
conversion in accordance with clauses (3), (4) and (5) of this Section 4.02(a) and the Applicable
Procedures as in effect from time to time.
(b) The person in whose name the shares of Common Stock are issuable upon conversion shall be
deemed to be a holder of record of such Common Stock on the later of (i) the Conversion Date, (ii)
the expiration of the period in which the Company may elect to deliver cash in lieu of shares of
Common Stock, or (iii) if the Company elects to deliver cash in lieu of some, but not all, of such
shares of Common Stock, the date on which the amount of cash issuable per Security has been
determined; provided, however, that no surrender of a Security on any Conversion Date when the
stock transfer books of the Company shall be closed shall be effective to constitute the person or
persons entitled to receive the shares of Common Stock upon conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall be effective to
constitute the person or persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the close of business on the next succeeding day on
which such stock transfer books are open; provided further that such conversion shall be at the
Conversion Rate in effect on the Conversion Date as if the stock transfer books of the Company had
not been closed. Upon conversion of a Security, such person shall no longer be a Holder of such
Security. Except as set forth in this Indenture, no payment or adjustment will be made for
dividends or distributions declared or made on shares of Common Stock issued upon conversion of a
Security prior to the issuance of such shares of Common Stock.
(c) Holders of Securities surrendered for conversion (in whole or in part) during the period
from the close of business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date will receive the semi-annual interest (including Contingent
Interest and Additional Interest, if any) payable on such Securities on the
35
corresponding Interest Payment Date notwithstanding the conversion, and such interest
(including Contingent Interest and Additional Interest, if any) shall be payable on the
corresponding Interest Payment Date to the Holder of the Security as of the close of business on
the Regular Record Date. Upon surrender of any such Securities for conversion after the close of
business on such Regular Record Date, such Securities shall also be accompanied by payment by the
Holders of such Securities in funds to the Conversion Agent acceptable to the Company of an amount
equal to the interest (including Contingent Interest and Additional Interest, if any) payable on
such corresponding Interest Payment Date; provided that no such payment need be made: (1) in
connection with a conversion following the Regular Record Date preceding the Final Maturity Date;
(2) if the Company has specified a Redemption Date that is after a Regular Record Date and on or
prior to the corresponding Interest Payment Date; (3) if the Company has specified a Fundamental
Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding
Interest Payment Date; or (4) to the extent of any overdue interest (including Contingent Interest
and Additional Interest, if any), if any overdue interest (including Contingent Interest and
Additional Interest, if any) exists at the time of conversion with respect to such Security. Except
as otherwise provided in this Section 4.02(c), no payment or adjustment will be made for accrued
and unpaid interest (including Contingent Interest and Additional Interest, if any) on a converted
Security. Accrued and unpaid interest (including Contingent Interest and Additional Interest, if
any) shall be deemed paid in full, rather than cancelled, extinguished or forfeited. The Company
shall not be required to convert any Securities which are surrendered for conversion without
payment of interest (including Contingent Interest and Additional Interest, if any) as required by
this Section 4.02(c).
(d) Subject to Section 4.02(c), nothing in this Section shall affect the right of a Holder in
whose name any Security is registered at the close of business on a Regular Record Date to receive
the interest (including Contingent Interest and Additional Interest, if any) payable on such
Security on the related Interest Payment Date in accordance with the terms of this Indenture and
the Securities. If a Holder converts more than one Security at the same time, the amount of cash
to be paid and the number of shares of Common Stock issuable upon the conversion, if any (and the
amount of any cash in lieu of fractional shares pursuant to Section 4.03) shall be based on the
aggregate principal amount of all Securities so converted.
(e) In the case of any Security which is converted in part only, upon such conversion the
Company shall execute and the Trustee shall authenticate and deliver to the Holder thereof, without
service charge, a new Security or Securities of authorized denominations in an aggregate principal
amount equal to, and in exchange for, the unconverted portion of the principal amount of such
Security. A Security may be converted in part, but only if the principal amount of such part is an
integral multiple of $1,000 and the principal amount of such Security to remain outstanding after
such conversion is equal to $1,000 or any integral multiple of $1,000 in excess thereof.
(f) Upon the Companys determination that Holders are or will be entitled to convert their
Securities in accordance with the provisions of this Article 4, the Company will promptly issue a
press release or otherwise publicly disclose this information and use its reasonable efforts to
post such information on the Companys website.
36
Section 4.03.
Fractional Shares
.
The Company will not issue fractional shares of Common Stock upon conversion of Securities.
If more than one Security shall be surrendered for conversion at one time by the same Holder, the
number of full shares that shall be issuable upon conversion shall be computed on the basis of the
aggregate principal amount of the Securities (or specified portions thereof to the extent permitted
hereby) so surrendered. In lieu of any fractional shares, the Company will pay an amount in cash
equal to the applicable portion of the arithmetic average of the Daily VWAP of the Common Stock for
each of the 20 consecutive Trading Days of the Conversion Reference Period, rounding to the nearest
whole cent.
Section 4.04.
Taxes on Conversion
.
If a Holder converts a Security, the Holder shall pay any transfer, stamp or similar taxes or
duties related to the issue or delivery of shares of Common Stock upon such conversion. In
addition, the Holder shall pay any such tax which is due because the Holder requests the shares to
be issued in a name other than the Holders name. The Holder shall also pay any such tax with
respect to cash received in lieu of fractional shares. The Conversion Agent may refuse to deliver
the certificate representing the Common Stock being issued in a name other than the Holders name
until the Conversion Agent receives a sum sufficient to pay any tax which will be due because the
shares are to be issued in a name other than the Holders name. Nothing herein shall preclude any
tax withholding required by law or regulation.
Section 4.05.
Company To Provide Common Stock
.
(a) The Company shall, prior to issuance of any Securities hereunder, and from time to time as
may be necessary, reserve, out of its authorized but unissued Common Stock, a sufficient number of
shares of Common Stock to permit the conversion of all outstanding Securities into shares of Common
Stock.
(b) All shares of Common Stock delivered upon conversion of the Securities shall be newly
issued shares or treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive or similar rights and free of any lien or adverse
claim as the result of any action by the Company.
(c) The Company will endeavor promptly to comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of Securities, if any,
and will list or cause to have listed such shares of Common Stock on the New York Stock Exchange,
or each national securities exchange or over the counter market or such other market on which the
Common Stock is then listed or quoted.
Section 4.06.
Adjustment of Conversion Rate
.
(a) The Conversion Rate shall be adjusted from time to time by the Company as follows:
(1) If the Company shall pay a dividend or make a distribution to all or substantially
all holders of outstanding Common Stock in shares of Common Stock, the
37
Conversion Rate in effect immediately prior to the record date for the determination of
stockholders entitled to receive such dividend or other distribution shall be increased so
that the same shall equal the rate determined by multiplying the Conversion Rate in effect
immediately prior to such record date by a fraction of which the numerator shall be the sum
of the number of shares of Common Stock outstanding at the close of business on such record
date plus the total number of shares of Common Stock constituting such dividend or other
distribution and of which the denominator shall be the number of shares of Common Stock
outstanding at the close of business on such record date. Such adjustment shall be made
successively whenever any such dividend or distribution is made and shall become effective
immediately after such record date. For the purpose of this Section 4.06 and otherwise in
this Indenture, the number of shares of Common Stock at any time outstanding shall not
include shares held in the treasury of the Company. The Company will not pay any dividend
or make any distribution on Common Stock held in the treasury of the Company. If any
dividend or distribution of the type described in this clause is declared but not so paid or
made, the Conversion Rate shall again be adjusted to the Conversion Rate that would then be
in effect if such dividend or distribution had not been declared.
(2) If the Company shall subdivide its outstanding Common Stock into a greater number
of shares, or combine its outstanding Common Stock into a smaller number of shares, the
Conversion Rate in effect immediately prior to the day upon which such subdivision or
combination becomes effective shall be, in the case of a subdivision of Common Stock,
proportionately increased and, in the case of a combination of Common Stock, proportionately
reduced. Such adjustment shall be made successively whenever any such subdivision or
combination of the Common Stock occurs and shall become effective immediately after the date
upon which such subdivision or combination becomes effective.
(3) If the Company shall issue any rights to all or substantially all holders of its
outstanding Common Stock entitling them (for a period expiring within 45 days after such
distribution) to subscribe for or purchase shares of Common Stock (or securities convertible
into Common Stock) at a price per share (or having a Conversion Price per share) less than
the Current Market Price per share of Common Stock (as determined in accordance with clause
(8) of this Section 4.06(a)) on 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 such record date by a fraction of which
the numerator shall be the number of shares of Common Stock outstanding at the close of
business on such record date plus the number of additional shares of Common Stock offered
(or into which the convertible securities so offered are convertible) and of which the
denominator shall be the number of shares of Common Stock outstanding at the close of
business on such record date plus the number of shares which the aggregate offering price of
the total number of shares of Common Stock so offered for subscription or purchase (or the
aggregate conversion price of the convertible securities so offered for subscription or
purchase, which shall be determined by multiplying the number of shares of Common Stock
issuable upon conversion of such convertible securities by the Conversion Price per share of
Common Stock pursuant to
38
the terms of such convertible securities) would purchase at the Current Market Price
per share of Common Stock on such record date. Such adjustment shall be made successively
whenever any such rights are issued, and shall become effective immediately after such
record date. To the extent that shares of Common Stock (or securities convertible into
Common Stock) are not delivered after the expiration of such rights, the Conversion Rate
shall be readjusted to the Conversion Rate that would then be in effect had the adjustments
made upon the issuance of such rights been made on the basis of delivery of only the number
of shares of Common Stock actually delivered. If such rights are not so issued, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if the record date for the determination of stockholders entitled to receive such
rights had not been fixed. In determining whether any rights entitle the stockholders to
subscribe for or purchase shares of Common Stock at a price less than the Current Market
Price per share of Common Stock and in determining the aggregate offering price of the total
number of shares of Common Stock so offered, there shall be taken into account any
consideration received by the Company for such rights and any amount payable on exercise or
conversion thereof, the value of such consideration, if other than cash, to be determined by
the Board of Directors.
(4) If the Company shall make a dividend or other distribution to all or substantially
all holders of its Common Stock of shares of its Capital Stock, other than Common Stock, or
evidences of Indebtedness or other assets (including securities) of the Company (excluding
(x) any issuance of rights for which an adjustment was made pursuant to Section 4.06(a)(3),
(y) dividends and distributions in connection with a reclassification, change,
consolidation, merger, combination, liquidation, dissolution, winding up, sale or conveyance
resulting in a change in the conversion consideration pursuant to Section 4.10 and (z) any
dividend or distribution paid exclusively in cash for which an adjustment was made pursuant
to Section 4.06(a)(6)) (the
Distributed Securities
), then in each such case
(unless the Company distributes such Distributed Securities for distribution to the Holders
of Securities on such dividend or distribution date (as if each Holder had converted such
Security into Common Stock immediately prior to the record date with respect to such
distribution)) the Conversion Rate in effect immediately prior to the record date fixed for
the determination of stockholders entitled to receive such dividend or distribution shall be
adjusted so that the same shall equal the rate determined by multiplying the Conversion Rate
in effect immediately prior to such record date by a fraction of which the numerator shall
be the Current Market Price per share of the Common Stock on such record date and of which
the denominator shall be the Current Market Price per share on such record date less the
Fair Market Value (as determined by reference to the Current Market Price of the Distributed
Securities, or in the absence of a Current Market Price of the Distributed Securities, the
Fair Market Value thereof) on such record date of the portion of the Distributed Securities
so distributed applicable to one share of Common Stock (determined on the basis of the
number of shares of Common Stock outstanding at the close of business on such record date).
Such adjustment shall be made successively whenever any such distribution is made and shall
become effective immediately after the record date for the determination of stockholders
entitled to receive such distribution. In the event that such dividend or distribution is
not so paid or made, the Conversion Rate shall again be adjusted to be the
39
Conversion Rate that would then be in effect if such dividend or distribution had not
been declared.
If the then Fair Market Value (as so determined) of the portion of the Distributed Securities
so distributed applicable to one share of Common Stock is equal to or greater than the Current
Market Price per share of the Common Stock on such record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each holder of a Security shall have the right
to receive upon conversion the amount of Distributed Securities so distributed that such Holder
would have received had such Holder converted each Security on such record date. If the Board of
Directors determines the Fair Market Value of any distribution for purposes of this Section
4.06(a)(4) by reference to the actual or when issued trading market for any securities, it must in
doing so consider the prices in such market over the same period used in computing the Current
Market Price of the Common Stock.
Notwithstanding the foregoing, if the securities distributed by the Company to all or
substantially all holders of its Common Stock consist of Capital Stock of, or similar equity
interests in, a Subsidiary or other business unit of the Company (the
Spinoff
Securities
), the Conversion Rate shall be adjusted, unless the Company makes an equivalent
distribution to the Holders of the Securities, so that the same shall be equal to the rate
determined by multiplying the Conversion Rate in effect on the record date fixed for the
determination of stockholders entitled to receive such distribution by a fraction, the numerator of
which shall be the sum of (A) the average Closing Price of one share of Common Stock over the 10
consecutive Trading Day period commencing on and including the fifth Trading Day after the date on
which ex-dividend trading commences for such distribution on the New York Stock Exchange, NASDAQ
Global Market or such other U.S. national or regional exchange or market on which the Common Stock
is then listed or quoted (such consecutive Trading Day period shall be defined as the
Spinoff
Valuation Period
) and (B) the product of (i) the average Closing Price over the Spinoff
Valuation Period of the Spinoff Securities multiplied by (ii) the number of Spinoff Securities
distributed in respect of one share of Common Stock and the denominator of which shall be the
average Closing Price of one share of Common Stock over the Spinoff Valuation Period, such
adjustment to become effective immediately prior to the opening of business on the fifteenth
Trading Day after the date on which ex-dividend trading commences; provided, however, that the
Company may in lieu of the foregoing adjustment elect to make adequate provision so that each
Holder of Securities shall have the right to receive upon conversion thereof the amount of such
Spinoff Securities that such Holder of Securities would have received if such Securities had been
converted on the record date with respect to such distribution.
(5) With respect to any rights or warrants (the
Rights
) that may be issued or
distributed pursuant to any rights plan that the Company implements after the date of this
Indenture (each a
Rights Plan
), in lieu of any adjustment required by any other
provision of this Section 4.06 to the extent that such Rights Plan is in effect at the time
of any conversion, the Holders of Securities will receive, with respect to the shares of
Common Stock issued upon conversion, the Rights described therein (whether or not the Rights
have separated from the Common Stock at the time of conversion), subject to the limitations
set forth in and in accordance with any such Rights Plan; provided that if, at the time of
conversion, however, the Rights have separated from the shares of Common Stock in accordance
with the provisions of the Rights Plan and the Holders would not be
40
entitled to receive any rights in respect of the shares of Common Stock issuable upon
conversion of the Securities as a result of the timing of the Conversion Date, the
Conversion Rate will be adjusted as if the Company distributed to all holders of Common
Stock Distributed Securities as provided in the first paragraph of clause (4) of this
Section 4.06(a), subject to appropriate readjustment in the event of the expiration,
redemption, termination or repurchase of the Rights. Any distribution of rights or warrants
pursuant to a Rights Plan complying with the requirements set forth in the immediately
preceding sentence of this paragraph shall not constitute a distribution of rights or
warrants pursuant to this Section 4.06(a). Other than as specified in this clause (5) of
this Section 4.06(a), there will not be any adjustment to the Conversion Rate as the result
of the issuance of any Rights, the distribution of separate certificates representing such
Rights, the exercise or redemption of such Rights in accordance with any Rights Plan or the
termination or invalidation of any Rights.
(6) If the Company shall, by dividend or otherwise, at any time distribute (a
Triggering Distribution
) to all or substantially all holders of its Common Stock a
payment consisting exclusively of cash (excluding any dividend or distribution in connection
with the liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary), the Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying such Conversion Rate in effect immediately prior to the close of
business on the record date for such Triggering Distribution (a
Determination
Date
) by a fraction, the numerator of which shall be such Current Market Price per
share of the Common Stock on the Determination Date and the denominator of which shall be
the Current Market Price per share of the Common Stock on the Determination Date less the
amount of such Triggering Distribution applicable to one share of Common Stock (determined
on the basis of the number of shares of Common Stock outstanding at the close of business on
the Determination Date), such increase to become effective immediately prior to the opening
of business on the day following the date on which the Triggering Distribution is paid. If
the amount of such Triggering Distribution is equal to or greater than the Current Market
Price per share of the Common Stock on the Determination Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder of a Security shall have
the right to receive upon conversion, the amount of cash so distributed that such Holder
would have received had such Holder converted each Security on such Determination Date. In
the event that such dividend or distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate that would then be in effect if such
divided or distribution had not been declared.
(7) If any tender offer made by the Company or any of its Subsidiaries for all or any
portion of Common Stock shall expire, then, if the tender offer shall require the payment to
stockholders of consideration per share of Common Stock having a Fair Market Value
(determined as provided below) that exceeds the Closing Price per share of Common Stock on
the Trading Day next succeeding the last date (the
Expiration Date
) tenders could
have been made pursuant to such tender offer (as it may be amended) (the last time at which
such tenders could have been made on the Expiration Date is hereinafter sometimes called the
Expiration Time
), the Conversion Rate shall be increased so that the same shall
equal the rate determined by multiplying the Conversion
41
Rate in effect immediately prior to the close of business on the Expiration Date by a
fraction of which the numerator shall be the sum of (A) the Fair Market Value of the
aggregate consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer) of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the
Purchased Shares
) and (B) the product of the number of shares
of Common Stock outstanding (less any Purchased Shares and excluding any shares held in the
treasury of the Company) at the Expiration Time and the Closing Price per share of Common
Stock on the Trading Day next succeeding the Expiration Date and the denominator of which
shall be the product of the number of shares of Common Stock outstanding (including
Purchased Shares but excluding any shares held in the treasury of the Company) at the
Expiration Time multiplied by the Closing Price per share of the Common Stock on the Trading
Day next succeeding the Expiration Date, such increase to become effective immediately prior
to the opening of business on the day following the Expiration Date. In the event that the
Company is obligated to purchase shares pursuant to any such tender offer, but the Company
is permanently prevented by applicable law from effecting any or all such purchases or any
or all such purchases are rescinded, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would have been in effect based upon the number of shares actually
purchased, if any. If the application of this clause (7) of Section 4.06(a) to any tender
offer would result in a decrease in the Conversion Rate, no adjustment shall be made for
such tender offer under this clause (7).
For purposes of this Section 4.06, the term
tender offer
shall mean and include both
tender offers and exchange offers, all references to
purchases
of shares in tender offers
(and all similar references) shall mean and include both the purchase of shares in tender offers
and the acquisition of shares pursuant to exchange offers, and all references to
tendered
shares
(and all similar references) shall mean and include shares tendered in both tender
offers and exchange offers.
(8) For the purpose of any computation under this Section 4.06(a), the current market
price (the
Current Market Price
) per share of Common Stock or any Distributed
Security on any date shall be deemed to be the average of the Closing Prices for the 10
consecutive Trading Days ending on the earlier of (A) the Determination Date or the
Expiration Date, as the case may be, with respect to distributions or tender offers under
this Section 4.06(a) or (B) the
ex-date
with respect to distributions, issuances
or other events requiring such computation under this Section 4.06.
(b) In any case in which this Section 4.06 shall require that an adjustment be made following
a record date, a Determination Date or Expiration Date, as the case may be, established for the
purposes specified in this Section 4.06, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of the certificate described in
Section 4.08) issuing to the Holder of any Security converted after such record date, Determination
Date or Expiration Date the shares of Common Stock and other Capital Stock of the Company issuable
upon such conversion over and above the shares of Common Stock and other Capital Stock of the
Company (or other cash, property or securities, as applicable) issuable upon such conversion only
on the basis of the Conversion Rate prior to adjustment; and, in lieu
42
of any cash, property or securities the issuance of which is so deferred, the Company shall
issue or cause its transfer agents to issue due bills or other appropriate evidence prepared by the
Company of the right to receive such cash, property or securities. If any distribution in respect
of which an adjustment to the Conversion Rate is required to be made as of the record date,
Determination Date or Expiration Date therefore is not thereafter made or paid by the Company for
any reason, the Conversion Rate shall be readjusted to the Conversion Rate which would then be in
effect if such record date had not been fixed or such record date, Determination Date or Expiration
Date had not occurred.
(c) For purposes of this Section 4.06,
record date
shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of Common Stock have the
right to receive any cash, securities or other property or in which the Common Stock (or other
applicable security) is exchanged or converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders entitled to receive such cash, security
or other property (whether or not such date is fixed by the Board of Directors or by statute,
contract or otherwise).
(d) For purposes hereof, the term
ex date
means (i) when used with respect to any
dividend or distribution, the first date on which the Common Stock trades, regular way, on the
relevant exchange or in the relevant market from which the Current Market Price was obtained
without the right to receive such dividend or distribution; and (ii) when used with respect to any
tender offer or exchange offer, the first date on which the Common Stock trades, regular way, on
the relevant exchange or in the relevant market from which the Current Market Price was obtained
after the expiration time of such tender offer or exchange offer (as it may be amended or
extended).
(e) If one or more event occurs requiring an adjustment be made to the Conversion Rate for a
particular period, adjustments to the Conversion Rate shall be determined by the Companys Board of
Directors to reflect the combined impact of such Conversion Rate adjustment events, as set out in
this Section 4.06, during such period.
(f) Notwithstanding the provisions set forth in Section 4.06(a), in no event shall the total
number of shares of Common Stock issuable upon conversion of a Security exceed [ ] shares
per $1,000 principal amount of Securities, subject to proportional adjustment in the same manner as
the Conversion Rate as set forth in clauses (1) through (4) of Section 4.06(a).
Section 4.07.
No Adjustment
.
(a) No adjustment in the Conversion Rate shall be required if Holders may participate in the
transactions set forth in Section 4.06 above (to the same extent as if the Securities had been
converted into shares of Common Stock immediately prior to such transactions) without converting
the Securities held by such Holders.
(b) No adjustment in the Conversion Rate shall be required unless such adjustment would
require an increase or decrease of at least 1% in the Conversion Rate as last adjusted; provided,
however, that any adjustments which would be required to be made but for this Section 4.07(b) shall
be carried forward and taken into account in any subsequent adjustment and
43
provided, further, that such carried-forward adjustments, regardless of whether the aggregate
adjustment is less than 1%, shall be made (i) five business days prior to the maturity of the
Securities (whether at stated maturity or otherwise) or (ii) five business days prior to the
Redemption Date or Fundamental Change Purchase Date, unless such adjustment has already been made.
All calculations under this Article 4 shall be made to the nearest cent or to the nearest one ten
thousandth of a share, as the case may be, with one half cent and 0.00005 of a share, respectively,
being rounded upward.
(c) No adjustment in the Conversion Rate shall be required for issuances of Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for a change in the par
value or a change to no par value of the Common Stock.
(d) To the extent that the Securities become convertible into the right to receive cash, no
adjustment need be made thereafter as to the cash.
(e) No adjustment in the Conversion Rate shall be required with respect to accrued and unpaid
interest on the Securities.
(f) Except as otherwise provided herein, the Conversion Rate will not be adjusted for the
issuance of Common Stock or any securities convertible into or exchangeable for Common Stock or
carrying the right to purchase Common Stock or any such security.
Section 4.08.
Notice of Adjustment
.
Whenever the Conversion Rate or conversion privilege is required to be adjusted pursuant to
this Indenture, the Company shall promptly mail, or cause the Trustee or Conversion Agent to mail
(as provided below), to Holders a notice of the adjustment and file with the Trustee an Officers
Certificate briefly stating the facts requiring the adjustment, the adjusted Conversion Rate and
the manner of computing it. Upon receipt by it of such notice, and at the written request of the
Company, the Trustee or Conversion Agent will promptly mail such notice to Holders of Securities at
the Companys expense. Failure to mail such notice or any defect therein shall not affect the
validity of any such adjustment. Unless and until the Trustee shall receive an Officers
Certificate setting forth an adjustment of the Conversion Rate, the Trustee may assume without
inquiry that the Conversion Rate has not been adjusted and that the last Conversion Rate of which
it has knowledge remains in effect.
Section 4.09.
Notice of Certain Transactions
.
In the event that there is a dissolution or liquidation of the Company, the Company shall mail
to Holders and file with the Trustee a notice stating the proposed effective date. The Company
shall mail such notice at least 20 days before such proposed effective date. Failure to mail such
notice or any defect therein shall not affect the validity of any transaction referred to in this
Section 4.09.
Section 4.10.
Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege
.
(a) If any of following events occur (each, a
Business Combination
), namely:
44
(1) any recapitalization, reclassification or change of the Common Stock, other than
(A) a change in par value, or from par value to no par value, or from no par value to par
value, or (B) as a result of subdivision or a combination,
(2) a consolidation, merger or combination of the Company with another Person, or
(3) a sale, lease or other transfer to another Person of the consolidated assets of the
Company and its Subsidiaries substantially as an entirety, or
(4) any statutory share exchange of the Company with another Person,
in each case as a result of which holders of Common Stock are entitled to receive stock, other
securities, other property or assets (including cash or any combination thereof) with respect to or
in exchange for Common Stock, the Company or the successor or purchasing corporation, as the case
may be, shall execute with the Trustee a supplemental indenture (which shall comply with the TIA as
in force at the date of execution of such supplemental indenture if such supplemental indenture is
then required to so comply) providing that the Holders of the Securities then outstanding will be
entitled thereafter to convert such Securities into the kind and amount of shares of stock, other
securities or other property or assets (including cash or any combination thereof) (
Reference
Property
) which they would have owned or been entitled to receive upon such Business
Combination had such Securities been converted into Common Stock immediately prior to such Business
Combination; provided that Holders shall not be entitled to receive a Make Whole Premium if such
Holder does not convert its Securities in connection with (as defined above) the relevant
Fundamental Change. If the Business Combination causes the Common Stock to be converted into the
right to receive more than a single type of consideration (determined based in part upon any form
of stockholder election), the Reference Property into which the Securities will be convertible will
be deemed to be the kind and amount of consideration elected to be received by the holders of a
majority of the Common Stock who voted for such an election (if electing between two types of
consideration) or the holders of a plurality of the Common Stock who voted for such an election (if
electing between more than two types of consideration), as the case may be. In all cases, the
provisions under Section 4.13 hereof relating to the Companys conversion obligation shall continue
to apply with respect to the calculation of the conversion settlement amount, with the Daily
Conversion Value, Daily Share Amount and the Daily VWAP based on the Reference Property;
provided
,
however
, that, if the holders of Common Stock received only cash in a
Business Combination, the conversion settlement amount shall equal the Conversion Rate in effect on
the Conversion Date multiplied by the price paid per share of Common Stock in such Business
Combination, and settlement shall occur on the third Trading Day following the Conversion Date.
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 4. If, in the case of any such
Business Combination, the stock or other securities and assets receivable thereupon by a holder of
Common Stock includes shares of stock or other securities and assets of a corporation other than
the successor or purchasing corporation, as the case may be, in such Business Combination, then
such supplemental indenture shall also be executed by such other corporation and shall contain such
additional provisions to protect the interests of the Holders of the Securities as the Board of
45
Directors shall reasonably consider necessary by reason of the foregoing, including to the extent
practicable the provisions providing for the conversion rights set forth in this Article 4.
The Company shall cause notice of the execution of such supplemental indenture to be mailed to
each Securityholder, at the address of such Securityholder as it appears on the Register of the
Securities maintained by the Registrar, within twenty calendar days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of such supplemental
indenture.
Any Additional Shares of Common Stock that a Holder is entitled to receive upon conversion
pursuant to Section 4.01(j), if applicable, shall not be payable in shares of Common Stock, but
shall represent a right to receive the aggregate amount of cash, securities or other property into
which the Additional Shares of Common Stock would convert as a result of such recapitalization,
change, consolidation, merger, sale, lease, transfer, conveyance or other disposition.
The Company shall cause notice of the execution of such supplemental indenture to be mailed to
each Holder, at the address of such Holder as it appears on the Register, within 20 days after
execution thereof. Failure to deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section 4.10 shall similarly apply to successive Business
Combinations.
The Company shall not become a party to any Business Combination unless its terms are
consistent in all material respects with the provisions of this Section 4.10.
None of the provisions of this Section 4.10 shall affect the right of a Holder of Securities
to convert its Securities into Common Stock prior to the effective date of a Business Combination.
If this Section 4.10(a) applies to any event or occurrence, Section 4.06 hereof shall not
apply.
(b) In the event the Company shall execute a supplemental indenture pursuant to this Section
4.10, the Company shall promptly file with the Trustee (1) an Officers Certificate briefly stating
the reasons therefore, the kind or amount of shares of stock or other securities or property
(including cash) receivable by Holders of the Securities upon the conversion of their Securities
after any such reclassification, change, combination, consolidation, merger, sale or conveyance,
any adjustment to be made with respect thereto and that all conditions precedent have been complied
with and (2) an Opinion of Counsel that all conditions precedent thereto and hereunder have been
complied with, and shall promptly mail notice thereof to all Holders. Failure to mail such notice
or any defect therein shall not affect the validity of such transaction and such supplemental
indenture.
46
Section 4.11.
Trustees Disclaimer
.
(a) The Trustee shall have no duty to determine when an adjustment under this Article 4 should
be made, how it should be made or what such adjustment should be, but may accept as conclusive
evidence of that fact or the correctness of any such adjustment, and shall be protected in relying
upon, an Officers Certificate and Opinion of Counsel, including the Officers Certificate with
respect thereto which the Company is obligated to file with the Trustee pursuant to Section 4.08.
The Trustee makes no representation as to the validity or value of any securities or assets issued
upon conversion of Securities, and the Trustee shall not be responsible for the Companys failure
to comply with any provisions of this Article 4, including, without limitation, whether or not a
Supplemental Indenture is required to be executed.
(b) The Trustee shall not be under any responsibility to determine the correctness of any
provisions contained in any supplemental indenture executed pursuant to Section 4.10, but may
accept as conclusive evidence of the correctness thereof, and shall be fully protected in relying
upon, the Officers Certificate and Opinion of Counsel, with respect thereto which the Company is
obligated to file with the Trustee pursuant to Section 4.10.
Section 4.12.
Voluntary Increase
.
The Company from time to time may increase the Conversion Rate, to the extent permitted by law
and subject to stockholder approval requirements, if any, of any relevant national securities
exchange or automated quotation system, by any amount for any period of time of at least 20 days,
in which case, the Company will provide at least 15 days notice of such increase. In addition, the
Company may increase the Conversion Rate as the Board of Directors deems advisable to avoid or
diminish income tax to holders of shares of Common Stock in connection with a dividend or
distribution of stock, or rights to acquire stock, or from any event treated as such for income tax
purposes.
Section 4.13.
Payment of Cash in Lieu of Common Stock
.
(a) In lieu of delivery of some or all of the shares of Common Stock otherwise issuable upon
notice of conversion of any Securities, Holders surrendering Securities for conversion shall
receive for each $1,000 principal amount of Securities surrendered: (A) cash in an amount equal to
the lesser of (1) $1,000 and (2) the Conversion Value; and (B) if the Conversion Value is greater
than $1,000, a number of shares of Common Stock (the
Remaining Shares
) equal to the sum
of the Daily Share Amounts for each of the 20 consecutive Trading Days in the Conversion Reference
Period, appropriately adjusted to reflect stock splits, stock dividends, combinations or similar
events occurring during the Conversion Reference Period, subject to the Companys right to deliver
cash in lieu of all or a portion of such Remaining Shares as set forth in Section 4.13(b). The
Company will deliver such cash and any shares of Common Stock, together with any cash payable for
fractional shares, to such Holder in accordance with Section 4.02(a).
(b) The Company may elect to pay cash to the Holders of Securities surrendered for conversion
in lieu of all or a portion of the Common Stock otherwise issuable pursuant to Section 4.13(a). In
such event, on any day prior to the first Trading Day of the applicable
47
Conversion Reference Period, the Company may specify a percentage of the Daily Share Amount
that will be settled in cash (the
Cash Percentage
). If the Company elects to specify a
Cash Percentage, the amount of cash that the Company will deliver in respect of each Trading Day in
the applicable Conversion Reference Period will equal the product of: (1) the Cash Percentage, (2)
the Daily Share Amount for such Trading Day and (3) the Daily VWAP of the Companys Common Stock on
such Trading Day (provided that after the consummation of a Change of Control in which the
consideration is comprised entirely of cash, the amount used in this clause (3) will be the cash
price per share received by holders of Common Stock in such Change of Control). The number of
shares that the Company shall deliver in respect of each Trading Day in the applicable Conversion
Reference Period will be a percentage of the Daily Share Amount equal to 100% minus the Cash
Percentage. If the Company does not specify a Cash Percentage by the start of the applicable
Conversion Reference Period, the Company shall settle 100% of the Daily Share Amount for each
Trading Day in the applicable Conversion Reference Period with shares of Common Stock; provided,
however, that the Company shall pay cash in lieu of fractional shares otherwise issuable upon
conversion of the Securities.
(c) For the purposes of Sections 4.13(a) and (b), in the event that any of Conversion Value,
Daily Conversion Value, Daily Share Amounts, or Daily VWAP is not calculable for all portions of
the Conversion Reference Period, the Companys Board of Directors shall in good faith determine the
values necessary to calculate the Conversion Value, Daily Conversion Value, Daily Share Amounts,
and Daily VWAP, as applicable.
ARTICLE 5
COVENANTS
Section 5.01.
Payment of Securities
.
(a) The Company shall promptly make all payments in respect of the Securities on the dates and
in the manner provided in the Securities and this Indenture. A payment of principal or interest or
Contingent Interest or Additional Interest, if any, shall be considered paid on the date it is due
if the Paying Agent (other than the Company) (or if the Company is the Paying Agent, the segregated
account or separate trust fund maintained by the Company pursuant to Section 2.04) holds by 10:00
a.m., New York City time, on that date money, deposited by or on behalf of the Company sufficient
to make the payment. Subject to Section 4.02, accrued and unpaid interest (including Contingent
Interest and Additional Interest, if any) on any Security that is payable (whether or not
punctually paid or duly provided for) on any Interest Payment Date shall be paid to the Person in
whose name that Security is registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose. Principal, the
Fundamental Change Purchase Price and interest (including Contingent Interest and Additional
Interest, if any), in each case if payable, shall be considered paid on the applicable date due if
on such date (or, in the case of the Fundamental Change Purchase Price, on the Business Day
following the applicable Fundamental Change Purchase Date) the Trustee or the Paying Agent holds,
in accordance with this Indenture, money sufficient to pay all such amounts then due. The Company
shall, to the fullest extent permitted by law, pay interest (including Contingent Interest and
Additional Interest, if any) in immediately available funds on overdue principal and interest at
the annual rate borne by the Securities compounded semi-annually, which interest shall accrue from
the date such overdue amount was originally due
48
to the date payment of such amount, including interest thereon, has been made or duly provided
for. All such interest (including Contingent Interest and Additional Interest, if any) shall be
payable on demand.
(b) Payment of the principal of and interest (including Contingent Interest and Additional
Interest, if any), if any, on the Securities shall be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York (which shall
initially be the Corporate Trust Office of the Trustee) in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company payment of interest on any Certificated
Securities having an aggregate principal amount of $5,000,000 or less may be made by check mailed
to the address of the Person entitled thereto as such address appears in the Register; provided
further that a Holder of a Certificated Security having an aggregate principal amount of more than
$5,000,000 will be paid by wire transfer in immediately available funds at the election of such
Holder if such Holder has provided wire transfer instructions to the Trustee at least 10 Business
Days prior to the payment date. Any wire transfer instructions received by the Trustee will remain
in effect until revoked by the Holder. In the case of a permanent Global Security, interest payable
on any applicable payment date will be paid to the Depositary, with respect to that portion of such
permanent Global Security held for its account by Cede & Co. for the purpose of permitting such
party to credit the interest received by it in respect of such permanent Global Security to the
accounts of the beneficial owners thereof.
Section 5.02.
SEC Reports
. The Company covenants and agrees that it shall:
(a) file with the Trustee, within 15 days after the Company is required to file the same with
the SEC, after giving effect to any grace period provided by Rule 12b-25 promulgated under the
Exchange Act, copies of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may from time to time by rules and
regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required to file information,
documents or reports pursuant to either of Section 13 or Section 15(d) of the Exchange Act, then
the Company shall file with the Trustee and the SEC, in accordance with rules and regulations
prescribed from time to time by the SEC, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the Exchange Act in respect
of a security listed and registered on a national securities exchange as may be prescribed from
time to time in such rules and regulations;
(b) file with the Trustee and the SEC, in accordance with rules and regulations prescribed
from time to time by the SEC, such additional information, documents and reports with respect to
compliance by the Company with the conditions and covenants of this Indenture as may be required by
such rules and regulations;
(c) transmit by mail, to all Holders, as their names and addresses appear in the Register of
the Registrar, within 30 days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant to clauses (a) and
(b) of this Section 5.02 as may be required by rules and regulations prescribed from time to time
by the SEC; and
49
(d) comply with the other provisions of TIA Section 314(a).
All information, documents and reports described in this Section 5.02 and filed with the SEC
pursuant to its Electronic Data Gathering, Analysis, and Retrieval system or any successor shall be
deemed to be filed with the Trustee and transmitted by mail to all Holders, as applicable, as of
the time they are filed via such system. The Trustee shall have no duty to search for or obtain any
electronic or other filings that the Company makes with the SEC, regardless of whether such filings
are periodic, supplemental or otherwise.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely exclusively on Officers Certificates).
Section 5.03.
Compliance Certificates
.
The Company shall deliver to the Trustee, within one hundred twenty (120) days after the end
of each fiscal year of the Company (beginning with the fiscal year ending December 31, 2009), an
Officers Certificate as to the signers knowledge of the Companys compliance with all conditions
and covenants on its part contained in this Indenture and stating whether or not the signer knows
of any Default or Event of Default. If such signer knows of such a Default or Event of Default, the
Officers Certificate shall describe the Default or Event of Default and the efforts to remedy the
same. For the purposes of this Section 5.03, compliance shall be determined without regard to any
grace period or requirement of notice provided pursuant to the terms of this Indenture.
Section 5.04.
Further Instruments and Acts
.
Upon request of the Trustee and the Company will execute and deliver such further instruments
and do such further acts as may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.
Section 5.05.
Maintenance of Corporate Existence
.
Subject to Article 6, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate existence and related rights and
franchises (charter and statutory) of the Company and each Restricted Subsidiary; provided,
however, that the Company shall not be required to preserve any such right or franchise or the
corporate existence of any such Restricted Subsidiary if the Board of Directors of the Company
shall determine that the preservation thereof is no longer necessary or desirable in the conduct of
the business of the Company and its Restricted Subsidiaries as a whole; and provided further,
however, that the foregoing shall not prohibit a sale, transfer or conveyance of a Restricted
Subsidiary or any of its assets in compliance with the terms of this Indenture.
50
Section 5.06.
Stay, Extension and Usury Laws
.
The Company covenants (to the extent that they may lawfully do so) that they shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law or other law which would prohibit or forgive the Company from paying
all or any portion of the principal of or accrued but unpaid interest (including Contingent
Interest and Additional Interest, if any) on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and the Company (to the extent they may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenant that they will not, by
resort to any such law, hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though no such law had
been enacted.
Section 5.07.
Maintenance of Office or Agency
.
The Company shall maintain an office or agency where Securities may be presented or
surrendered for payment. The Company also will maintain an office or agency where Securities may be
surrendered for registration of transfer or exchange and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The office of the Trustee,
at its Corporate Trust Office, will be such office or agency of the Company, unless the Company
shall designate and maintain some other office or agency for one or more of such purposes. The
Company will give prompt written notice to the Trustee of the location and any change in the
location of any such offices or agencies. If at any time the Company shall fail to maintain any
such required offices or agencies or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the office of the
Trustee and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may from time to time designate one or more other offices or agencies (in or
outside of The City of New York) where the Securities may be presented or surrendered for any or
all such purposes, and may from time to time rescind such designation. The Company will give prompt
written notice to the Trustee of any such designation or rescission and any change in the location
of any such office or agency.
Section 5.08.
Contingent Interest
.
Beginning with the six-month interest period commencing November 15, 2019, the Company will
pay interest (
Contingent Interest
) during any six-month interest period if the Trading
Price of the Securities for each of the five Trading Days ending on the second Trading Day immediately preceding the first day of the applicable six-month interest period equals or
exceeds 120% of the principal amount of the Securities. During any six-month interest period when
Contingent Interest is payable, the Contingent Interest payable on each $1,000 principal amount of
Securities shall equal 0.50% of the average Trading Price of $1,000 principal amount of Securities
during the five Trading Days ending on the second Trading Day immediately preceding the first day
of the applicable six-month interest period used to determine whether Contingent Interest must be
paid.
51
The Trustees sole responsibility pursuant to this Section 5.08 shall be to obtain the Trading
Price of the Securities for each of the five Trading Days immediately preceding the first day of
the applicable six-month interest period and to provide such information to the Company. The
Company shall determine whether Holders are entitled to receive Contingent Interest, and if so,
provide notice pursuant to Section 5.09. Notwithstanding any term contained in this Indenture or
any other document to the contrary, the Trustee shall have no responsibilities, duties or
obligations for or with respect to (i) determining whether the Company must pay Contingent Interest
or (ii) determining the amount of Contingent Interest, if any, payable by the Company.
Contingent Interest for any period shall be paid on the same date and to the same Person
entitled to receive other interest payable on any Securities. Contingent Interest due under this
Section 5.08 shall be treated for all purposes of this Indenture like any other interest accruing
on the Securities.
Section 5.09.
Contingent Interest Notification
. Prior to the first Business Day of a six-month interest period during which Contingent
Interest will be paid, the Company will disseminate a press release through
Business Wire
(or if
Business Wire
is no longer available, a comparable wire service) stating that Contingent Interest
will be paid on the Securities and identifying the six-month interest period.
Section 5.10.
Tax Treatment
. The Company agrees, and by acceptance of beneficial ownership interest in the Securities each
Holder of the Securities will be deemed to have agreed, for U.S. federal income tax purposes (1) to
treat the Securities as indebtedness that is subject to Treas. Reg. Sec. 1.1275-4 (the
Contingent Payment Regulations
) and, for purposes of the Contingent Payment Regulations,
to treat the cash and the fair market value of any stock beneficially received by a Holder upon any
conversion of the Securities as a contingent payment and (2) to be bound by the Companys
determination of the comparable yield and projected payment schedule, within the meaning of the
Contingent Payment Regulations, with respect to the Securities. A Holder may obtain the issue
price, amount of original issue discount, issue date, yield to maturity, comparable yield and
projected payment schedule for the Securities by submitting a written request for such information
to the Company at the following address: General Cable Corporation, 4 Tesseneer Drive, Highland
Heights, Kentucky 41076-9753, Attention: Chief Financial Officer.
ARTICLE 6
CONSOLIDATION; MERGER; SALE OF ASSETS
Section 6.01.
Company May Consolidate, Etc., Only on Certain Terms
.
(a) The Company shall not consolidate with or merge with or into (whether or not the Company
is the Surviving Person) any other entity and the Company shall not, and shall not cause or permit
any Restricted Subsidiary to, sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the Companys and the Restricted Subsidiaries assets (determined on a
consolidated basis for the Company and the Restricted Subsidiaries) to any Person in a single
transaction or series of related transactions, unless:
52
(1) either (A) the Company shall be the Surviving Person or (B) the Surviving Person
(if other than the Company) shall be a corporation or limited liability company organized
and validly existing under the laws of the United States of America or any State thereof or
the District of Columbia, and shall, in any such case, expressly assume by a supplemental
indenture, the due and punctual payment of the principal of, premium, if any, and interest
(including Contingent Interest and Additional Interest, if any) on all the Securities and
the performance and observance of every covenant of this Indenture to be performed or
observed on the part of the Company;
(2) immediately thereafter, on a pro forma basis after giving effect to such
transaction (and treating any Indebtedness not previously an obligation of the Company or
any Restricted Subsidiary in connection with or as a result of such transaction as having
been incurred at the time of such transaction), no Default or Event of Default shall have
occurred and be continuing;
Any Restricted Subsidiary may consolidate with, merge into or transfer all or part of its
assets to the Company or another Restricted Subsidiary.
For purposes of the foregoing, the transfer (by lease, assignment, sale or otherwise, in a
single transaction or series of transactions) of all or substantially all the assets of one or more
Restricted Subsidiaries the Capital Stock of which constitute all or substantially all the assets
of the Company shall be deemed to be the transfer of all or substantially all the assets of the
Company.
(b) In connection with any consolidation, merger, transfer, lease or other disposition
contemplated hereby, the Company shall deliver, or cause to be delivered, to the Trustee, in form
and substance reasonably satisfactory to the Trustee, an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger, transfer, lease or other disposition and the
supplemental indenture in respect thereof comply with the requirements under this Indenture.
Section 6.02.
Successor Substituted
.
Upon any consolidation or merger of the Company or any transfer of all or substantially all of
the assets of the Company in accordance with the foregoing in which the Company is not the
Surviving Person, the Surviving Person shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture and the Securities with the same effect
as if such successor corporation had been named as the Company therein; and thereafter except in
the case of a lease, the Company shall be discharged from all obligations and covenants under this
Indenture and the Securities.
For all purposes of this Indenture and the Securities, Subsidiaries of any Surviving Person
shall, upon such transaction or series of related transactions, become Restricted Subsidiaries
unless and until validly designated otherwise.
53
ARTICLE 7
DEFAULT AND REMEDIES
Section 7.01.
Events of Default
.
(a) An
Event of Default
wherever used herein, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body):
(1) the Company shall fail to pay when due the Principal, Redemption Price or any
Fundamental Change Purchase Price of any Security, including any Make Whole Premium, when
the same becomes due and payable whether at the Final Maturity Date, upon redemption,
purchase, acceleration or otherwise; or
(2) the Company shall fail to pay an installment of cash interest (including Contingent
Interest or Additional Interest, if any) on any of the Securities, which default continues
for 60 days after the date when due; or
(3) the Company shall fail to deliver when due all cash and any shares of Common Stock
deliverable upon conversion of the Securities, which failure continues for 15 days; or
(4) the Company shall fail to deliver an Issuer Fundamental Change Notice within the
time required to provide such notice as set forth in Section 3.01(b) hereof; or
(5) the Company shall fail to perform or observe any other term, covenant or agreement
contained in the Securities or this Indenture for a period of 60 days after receipt by the
Company of a Notice of Default specifying such failure; or
(6) a default or defaults under the terms of one or more instruments evidencing or
securing Indebtedness of the Company or any of the Restricted Subsidiaries having an
outstanding principal amount of greater than $50,000,000 individually or in the aggregate,
which default (a) is caused by a failure to pay at final
maturity principal on such Indebtedness within the applicable express grace period, (b)
results in the acceleration of such Indebtedness prior to its express final maturity or (c)
results in the commencement of judicial proceedings to foreclose upon, or to exercise
remedies under applicable law or applicable security documents to take ownership of, the
assets securing such Indebtedness; or
(7) a court having jurisdiction in the premises enters (x) a decree or order for relief
in respect of the Company or any of its Significant Subsidiaries in an involuntary case or
proceeding under any applicable Bankruptcy Law or (y) a decree or order adjudging the
Company or any of its Significant Subsidiaries a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company or any of its Significant Subsidiaries under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any of its
54
Significant Subsidiaries
or of any substantial part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days; or
(8) (a) the Company or any of its Significant Subsidiaries commences a voluntary case
or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be
adjudicated a bankrupt or insolvent; or
(b) the Company or any of its Significant Subsidiaries consents to the entry of
a decree or order for relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding under any applicable Bankruptcy
Law or to the commencement of any bankruptcy or insolvency case or proceeding
against the Company or any of its Significant Subsidiaries; or
(c) the Company or any of its Significant Subsidiaries files a petition or
answer or consent seeking reorganization or relief under any applicable federal or
state law; or
(d) the Company or any of its Significant Subsidiaries consents to the filing
of such petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Company or any of its Significant Subsidiaries or of any substantial part of their
property;
(e) the Company or any of its Significant Subsidiaries makes an assignment for
the benefit of creditors; or
(f) the Company or any of its Significant Subsidiaries admits in writing its
inability to pay its debts generally as they become due; or
(g) the Company or any of its Significant Subsidiaries takes corporate action
in furtherance of any such action described in this Section 7.01(a)(9).
(b) Notwithstanding Section 7.01(a) no Event of Default under clause (5) of Section 7.01(a)
shall occur until the Trustee notifies the Company in writing, or the Holders of at least 25% in
aggregate principal amount of the Securities then Outstanding notify the Company and the Trustee in
writing, of the Default (a
Notice of Default
), and the Company does not cure the Default
within the time specified in clause (5) of Section 7.01(a), or obtain a waiver, after receipt of
such notice. A notice given pursuant to this Section 7.01 shall be given by registered or certified
mail, must specify the Default, demand that it be remedied and state that the notice is a Notice of
Default. When any Default under this Section 7.01 is cured, it ceases.
(c) The Company will deliver to the Trustee, within 10 Business Days after becoming aware of
the occurrence of a Default or Event of Default, written notice thereof.
55
Section 7.02.
Acceleration
.
(a) If an Event of Default (other than an Event of Default specified in clause (7) or (8) of
Section 7.01(a)) shall occur and be continuing with respect to this Indenture, the Trustee or the
Holders of not less than 25% in aggregate principal amount of the Securities then Outstanding may,
and the Trustee at the request of such Holders shall, declare all unpaid principal of, premium, if
any, and accrued interest on all Securities to be due and payable, by a notice in writing to the
Company (and to the Trustee if given by the Holders of the Securities). Upon any such declaration,
such principal, premium, if any, and interest shall become due and payable immediately. If an Event
of Default specified in clause (7) or (8) of Section 7.01(a) occurs and is continuing, then all the
Securities shall ipso facto become and be due and payable immediately in an amount equal to the
principal amount of the Securities, together with accrued and unpaid interest, if any, to the date
the Securities become due and payable, without any declaration or other act on the part of the
Trustee or any Holder. Thereupon, the Trustee may, at its discretion, proceed to protect and
enforce the rights of the Holders of the Securities by appropriate judicial proceedings.
Notwithstanding anything to the contrary in this Indenture, the sole remedy for any Event of
Default from time to time relating to the Companys failure to comply with its obligations under
Section 5.02, will, at the option of the Company, for the first 365 days after the occurrence of
such Event of Default, consist exclusively of the right to receive additional interest (the
Additional Interest
) on the Securities at an annual rate equal to 0.50% of the principal
amount of the Securities. In order to elect to pay Additional Interest as the sole remedy during
the first 365 days after the occurrence of an Event of Default described in the preceding sentence,
the Company must give notice to the Trustee and the Company will disseminate a press release
through
Business Wire
(or if
Business Wire
) is no longer available, a comparable wire service) of
such election promptly following the date on which such Event of Default occurs. Upon the failure
to timely give the Trustee such notice and disseminate such press release, the Securities will be
subject to acceleration as provided in the first paragraph of this Section 7.02(a). A failure by
the Company to pay Additional Interest when due and payable and such default continues for a period
of 60 days, shall constitute an Event of Default subject to Section 7.01(b) which will be subject
to acceleration as provided in the first paragraph of this Section 7.02(a).
Additional Interest will be payable in the same manner and on the same interest payment dates
and subject to the same terms as other interest payable under this Indenture. Additional Interest
will accrue on all outstanding Securities from and including the date on which an Event of Default
first occurs to, but not including, the 365
th
day thereafter (or such earlier date on
which the Event of Default relating to Section 5.02 shall have been cured or waived). If the Event
of Default relating to Section 5.02 is cured or waived prior to such 365
th
day, such
Additional Interest will cease to accrue on the date of such cure or waiver. On such
365
th
day (if the Event of Default is continuing), such Additional Interest will cease
to accrue and the Securities will be subject to acceleration as provided in the first paragraph of
this Section 6.02(a). A Securityholders right to receive Additional Interest for an Event of
Default will not affect the rights of the Securityholders in the event of an occurrence of any
other Event of Default.
56
(b) After a declaration of acceleration with respect to the Securities, but before a judgment
or decree for payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of the Securities
Outstanding, by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient to pay
(1) all sums paid or advanced by the Trustee under this Indenture and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
(2) all overdue interest on all Outstanding Securities,
(3) the principal of and premium, if any, on any Outstanding Securities which have
become due otherwise than by such declaration of acceleration and interest thereon at the
rate borne by the Securities, and
(4) to the extent that payment of such interest is lawful, interest upon overdue
interest at the rate borne by the Securities;
(b) the rescission would not conflict with any judgment or decree of a court of competent
jurisdiction; and
(c) all Events of Default, other than the non-payment of principal of, premium, if any, and
interest on the Securities which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 7.13. No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
Section 7.03.
Collection of Indebtedness and Suits for Enforcement by Trustee
. The Company covenants that if
(a) default is made in the payment of any interest on any Security when such interest becomes
due and payable and such default continues for a period of 60 days, or
(b) default is made in the payment of the principal of or premium, if any, on any Security at
the Stated Maturity thereof or otherwise, the Company will, upon demand of the Trustee, pay to it,
for the benefit of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and premium, if any, and interest (including Contingent Interest and
Additional Interest, if any), with interest upon the overdue principal and premium, if any, and, to
the extent that payment of such interest shall be legally enforceable, upon overdue installments of
interest, at the rate borne by the Securities; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own
name and as trustee of an express trust, may institute a judicial proceeding for the collection
57
of
the sums so due and unpaid and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of the property of the
Company or any other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders under this Indenture by such
appropriate private or judicial proceedings as the Trustee shall deem most effectual to protect and
enforce such rights, whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein or therein, or to enforce any other
proper remedy, or to enforce any other proper remedy, subject however to Section 7.12. No recovery
of any such judgment upon any property of the Company affect or impair any rights, powers or
remedies of the Trustee or the Holders.
Section 7.04.
Trustee May File Proofs of Claim
.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the
Company or any other obligor, upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of principal, and premium, if any, and
interest (including Contingent Interest and Additional Interest, if any) owing and unpaid in
respect of the Securities and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the
Holders, to pay the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 8.07.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
58
Section 7.05.
Trustee May Enforce Claims Without Possession of Securities
.
All rights of action and claims under this Indenture or the Securities may be prosecuted and
enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name and as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 7.06.
Application of Money Collected
.
Any money collected by the Trustee pursuant to this Article 7 or otherwise on behalf of the
Holders or the Trustee pursuant to this Article 7 or through any proceeding or any arrangement or
restructuring in anticipation or in lieu of any proceeding contemplated by this Article 7 shall be
applied, subject to applicable law, in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal, premium, if any, or
interest, upon presentation of the Securities and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.07;
SECOND: To the payment of the amounts then due and unpaid upon the Securities for principal,
premium, if any, and interest, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal, premium, if any, and interest (including Contingent
Interest and Additional Interest, if any); and
THIRD: The balance, if any, to the Person or Persons entitled thereto, including the Company,
provided that all sums due and owing to the Holders and the Trustee have been paid in full as
required by this Indenture.
Section 7.07.
Limitation on Suits
.
No Holder of any Securities shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or the Securities, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(a) such Holder has previously given written notice to the Trustee of a continuing Event of
Default;
(b) the Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as trustee hereunder;
(c) such Holder or Holders have offered to the Trustee a reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such request;
59
(d) the Trustee for 15 days after its receipt of such notice, request and offer (and if
requested, provision) of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to the Trustee during
such 15-day period by the Holders of a majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture or any Security to
affect, disturb or prejudice the rights of any other Holders, or to obtain or to seek to obtain
priority or preference over any other Holders or to enforce any right under this Indenture or any
Security, except in the manner provided in this Indenture and for the equal and ratable benefit of
all the Holders.
Section 7.08.
Unconditional Right of Holders to Receive Payment and to Convert
.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have
the right based on the terms stated herein, which is absolute and unconditional, to receive payment
of the principal of, premium, if any, and (subject to Section 2.15) interest (including Contingent
Interest and Additional Interest, if any) on such Security on the Stated Maturities expressed in
such Security (or, in the case of redemption pursuant to Article 11 hereof, the Redemption Date,
or, in the case of purchase pursuant to Article 3 hereof, on the Fundamental Change Purchase Date),
and to receive payment of the cash and Common Stock, if any, deliverable in respect of the
conversion of any Security, and to institute suit for the enforcement of any such payment or conversion, and such rights shall not be impaired without the consent
of such Holder.
Section 7.09.
Restoration of Rights and Remedies
.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every such case the
Company, any other obligor on the Securities, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as
though no such proceeding had been instituted.
Section 7.10.
Rights and Remedies Cumulative
.
No right or remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
60
Section 7.11.
Delay or Omission Not Waiver
.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by
this Article 7 or by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 7.12.
Control by Holders
.
The Holders of not less than a majority in aggregate principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of conducting any proceeding
for exercising any remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, provided that:
(a) such direction shall not be in conflict with any rule of law or with this Indenture
(including, without limitation, Section 7.07), expose the Trustee to personal liability, or be
unduly prejudicial to Holders not joining therein; and
(b) subject to the provisions of Section 315 of the TIA, the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
Section 7.13.
Waiver of Past Defaults
.
Subject to Section 7.02, the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities may on behalf of the Holders of all outstanding Securities waive any
past Default hereunder and its consequences, except a Default:
(a) in the payment of the principal amount, accrued and unpaid interest (including Contingent
Interest and Additional Interest, if any), Redemption Price, if any, Fundamental Change Purchase
Price, if any and as applicable, or to deliver cash and Common Stock, if any, as required, with
respect to the Securities (which may only be waived with the consent of each Holder of the
Securities affected); or
(b) in respect of any provision which under this Indenture cannot be modified or amended
without the consent of the Holder of each outstanding Security affected.
Upon any such waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or impair any right consequent thereon.
Section 7.14.
Undertaking for Costs
.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such
61
suit
of an undertaking to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by such party
litigant, but the provisions of this Section shall not apply to any suit instituted by the Trustee,
to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10%
in principal amount of the Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of, premium, if any, or interest (including Contingent
Interest and Additional Interest, if any) on, any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption pursuant to Article 11, on the
Redemption Date, or, in the case of purchase pursuant to Article 3 hereof, on the Fundamental
Change Purchase Date).
Section 7.15.
Remedies Subject to Applicable Law
.
All rights, remedies and powers provided by this Article 7 may be exercised only to the extent
that the exercise thereof does not violate any applicable provision of law in the premises, and all
the provisions of this Indenture are intended to be subject to all applicable mandatory provisions
of law which may be controlling in the premises and to be limited to the extent necessary so that
they will not render this Indenture invalid, unenforceable or not entitled to be recorded,
registered or filed under the provisions of any applicable law.
ARTICLE 8
TRUSTEE
Section 8.01.
Duties of Trustee
.
Subject to the provisions of TIA Sections 315(a) through 315(d):
(a) if a Default or an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use the same degree of
care and skill in its exercise thereof as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs;
(b) except during the continuance of a Default or an Event of Default:
(1) the Trustee need perform only those duties as are specifically set forth in this
Indenture and no covenants or obligations shall be implied in this Indenture that are
adverse to the Trustee; and
(2) in the absence of bad faith or willful misconduct on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions
expressed therein, upon certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of this Indenture;
62
(c) the Trustee may not be relieved from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that:
(1) this clause (c) does not limit the effect of clause (b) of this Section 8.01;
(2) the Trustee shall not be liable for any error of judgment made in good faith by a
Trust Officer, unless it is proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or omits to
take in good faith, in accordance with a direction of the Holders of a majority in principal
amount of Outstanding Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture;
(d) no provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder or in
the exercise of any of its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it;
(e) whether or not therein expressly so provided, every provision of this Indenture that in
any way relates to the Trustee is subject to clauses (a), (b), (c) and (d) and (f) of this Section
8.01; and
(f) the Trustee shall not be liable for interest on any money or assets received by it except
as the Trustee may agree with the Company Assets held in trust by the Trustee need not be
segregated from other assets except to the extent required by law.
Section 8.02.
Notice of Default
.
Within 30 days after a Trust Officer of the Trustee receives notice of the occurrence of any
Default, the Trustee shall transmit by mail to all Holders and any other Persons entitled to
receive reports pursuant to Section 313(c) of the TIA, as their names and addresses appear in the
Security Register, notice of such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; provided, however, that, except in the case of a Default in the payment
of the principal of, premium, if any, or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as a trust committee of Trust Officers of the Trustee in
good faith determines that the withholding of such notice is in the interest of the Holders.
Section 8.03.
Certain Rights of Trustee
.
Subject to the provisions of Section 8.01 hereof and TIA Sections 315(a) through 315(d):
(a) the Trustee may rely and shall be protected in acting or refraining from acting upon
receipt by it of any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of Indebtedness or other
63
paper or document believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(c) the Trustee may consult with counsel of its selection and any advice of such counsel or
any Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance thereon 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 or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred therein;
(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, rights or powers conferred upon it by
this Indenture other than any liabilities arising out of the negligence, bad faith or willful
misconduct of the Trustee;
(f) the Trustee shall not be bound to make any investigation into the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, approval, appraisal, bond, debenture, note, coupon, security 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 of the Securities then Outstanding; provided 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 expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation so requested by the Holders of not less than 25% in
aggregate principal amount of the Securities Outstanding shall be paid by the Company or, if paid
by the Trustee or any predecessor Trustee, shall be repaid by the Company upon demand; provided,
further, the Trustee in its discretion may make such further inquiry or investigation into such
facts or matters as it may deem 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;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed with
due care by it hereunder;
(h) the Trustee shall not be charged with knowledge of any Default or Event of Default with
respect to the Securities unless either (i) a Trust Officer of the Trustee shall have
64
actual
knowledge of such Default or Event of Default or (ii) written notice of such Default or Event of
Default shall have been given to the Trustee by the Issuer or by any Holder of Securities; and
(i) the permissive rights of the Trustee enumerated herein shall not be construed as duties of
the Trustee.
Section 8.04.
Trustee Not Responsible for Recitals, Dispositions of Securities or
Application of Proceeds Thereof
.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities, except that the Trustee represents that it is
duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in any Statement of Eligibility and
Qualification on Form T-1 to be supplied to the Company will be true and accurate subject to the
qualifications set forth therein. The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 8.05.
Trustee and Agents May Hold Securities; Collections; etc
.
The Trustee, any Paying Agent, Security Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Securities, with the same
rights it would have if it were not the Trustee, Paying Agent, Security Registrar or such other
agent and, subject to TIA Sections 310 and 311, may otherwise deal with the Company and receive,
collect, hold and retain collections from the Company with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar or such other agent.
Section 8.06.
Money Held in Trust
.
All moneys received by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be segregated from other funds
except to the extent required by mandatory provisions of law. Except for funds or securities
deposited with the Trustee pursuant to Article 9, the Trustee shall be required to invest all
moneys received by the Trustee, until used or applied as herein provided, in Cash Equivalents in
accordance with the directions of the Company.
Section 8.07.
Compensation and Indemnification of Trustee and Its Prior Claim
.
The Company covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the parties shall agree in writing from time to time for
all services rendered by it hereunder (which compensation shall not be limited by any provision of
law in regard to the compensation of a trustee of an express trust) and the Company covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of
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 agents and
65
other persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its
negligence, bad faith or willful misconduct. The Company also covenants and agrees to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against, any claim, loss,
liability, tax, assessment or other governmental charge (other than taxes applicable to the
Trustees compensation hereunder) or expense incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection with the acceptance or administration of
this Indenture or the trusts hereunder and its duties hereunder, including enforcement of this
Section 8.07 and also including any liability which the Trustee may incur as a result of failure to
withhold, pay or report any tax, assessment or other governmental charge, and the costs and
expenses of defending itself against or investigating any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. The obligations of the Company
under this Section 8.07 to compensate and indemnify the Trustee and each predecessor Trustee and to
pay or reimburse the Trustee and each predecessor Trustee for reasonable expenses, disbursements
and advances shall constitute an additional obligation hereunder and shall survive the satisfaction
and discharge of this Indenture and the resignation or removal of the Trustee and each predecessor
Trustee. To secure the Companys payment obligations in this Section 8.07, the Trustee shall have a
prior claim to Holders of Securities on all money or property held or collected by the Trustee
other than money or property held in trust for the benefit of the Holders of particular Securities.
Section 8.08.
Conflicting Interests
.
The Trustee shall comply with the provisions of Section 310(b) of the TIA.
Section 8.09.
Trustee Eligibility
.
There shall at all times be a Trustee hereunder which shall be eligible to act as trustee
under TIA Section 310(a) and which shall have a combined capital and surplus of at least
$100,000,000, to the extent there is an institution eligible and willing to serve. If the Trustee
does not have a Corporate Trust Office in The City of New York, the Trustee may appoint an agent in
The City of New York reasonably acceptable to the Company to conduct any activities which the
Trustee may be required under this Indenture to conduct in The City of New York. If such Trustee
publishes reports of condition at least annually, pursuant to law or to the requirements of
federal, state, territorial or District of Columbia supervising or examining authority, then for
the purposes of this Section 8.09, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 8.09, the Trustee shall resign immediately in the manner and with the
effect hereinafter specified in this Article 8.
Section 8.10.
Resignation and Removal; Appointment of Successor Trustee
.
(a) No resignation or removal of the Trustee and no appointment of a successor trustee
pursuant to this Article 8 shall become effective until the acceptance of appointment by the
successor trustee under Section 8.11.
66
(b) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign by
giving written notice thereof to the Company no later than 20 Business Days prior to the proposed
date of resignation. Upon receiving such notice of resignation, the Company shall promptly appoint
a successor trustee by written instrument executed by authority of the Board of Directors of the
Company, a copy of which shall be delivered to the resigning Trustee and a copy to the 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 resignation, the resigning Trustee may,
at the expense of the Company, or any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor trustee. Such court may thereupon, after
such notice, if any, as it may deem proper, appoint and prescribe a successor trustee.
(c) The Trustee may be removed at any time for any cause or for no cause by an Act of the
Holders of not less than a majority in aggregate principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company or by any Holder who has been a bona fide Holder of
a Security for at least six months,
(2) the Trustee shall cease to be eligible under Section 8.09 and shall fail to resign
after written request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent, or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any case, (i) the Company by a Board Resolution may remove the Trustee, or (ii) subject to
Section 7.14, the Holder of any Security who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove
the Trustee and appoint a successor trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall
promptly appoint a successor trustee and shall comply with the applicable requirements of Section
8.11. If, within 60 days after such resignation, removal or incapability, or the occurrence of such
vacancy, the Company has not appointed a successor Trustee, a successor trustee shall be appointed
by the Act of the Holders of a majority in principal amount of the Outstanding Securities delivered
to the Company and the retiring Trustee. Such successor trustee so appointed shall forthwith upon
its acceptance of such appointment become the successor trustee and
67
supersede the successor trustee
appointed by the Company. If no successor trustee shall have been so appointed by the Company or
the Holders of the Securities and accepted appointment in the manner hereinafter provided, the
Trustee or the Holder of any Security who has been a bona fide Holder for at least six months may,
subject to Section 7.14, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor trustee.
(f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of Securities as their names and addresses appear in the register
of the Registrar. Each notice shall include the name of the successor trustee and the address of
its Corporate Trust Office or agent hereunder.
Section 8.11.
Acceptance of Appointment by Successor
.
(a) Every successor trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties of the retiring Trustee as if originally named as Trustee hereunder; but,
nevertheless, on the written request of the Company or the successor trustee, upon payment of its
charges pursuant to Section 8.07 then unpaid, such retiring Trustee shall pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor trustee all such rights and powers.
(b) No successor trustee with respect to the Securities shall accept appointment as provided
in this Section 8.11 unless at the time of such acceptance such successor trustee shall be eligible
to act as trustee under the provisions of TIA Section 310(a) and this Article 8 and shall have a
combined capital and surplus of at least $100,000,000 and have a Corporate Trust Office or an agent
selected in accordance with Section 8.09.
(c) Upon acceptance of appointment by any successor trustee as provided in this Section 8.11,
the Company shall give notice thereof to the Holders of the Securities, by mailing such notice to
such Holders at their addresses as they shall appear on the Security Register. If the
acceptance of appointment is substantially contemporaneous with the appointment, then the
notice called for by the preceding sentence may be combined with the notice called for by Section
8.10. If the Company fails to give such notice within 10 days after acceptance of appointment by
the successor trustee, the successor trustee shall cause such notice to be given at the expense of
the Company.
Section 8.12.
Merger, Conversion, Consolidation or Succession to Business
.
Any corporation into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or consolidation
68
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 (including the trust created by this Indenture) shall be
the successor of the Trustee hereunder, provided that such corporation shall be eligible under TIA
Section 310(a) and this Article 8 and shall have a combined capital and surplus of at least
$100,000,000 and have a Corporate Trust Office or an agent selected in accordance with Section
8.09, 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 Securities shall have been authenticated but not delivered, any such successor
to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such Securities either in the
name of any predecessor hereunder or in the name of the successor trustee; and in all such cases
such certificate shall have the full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall have; provided that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors by merger,
conversion or consolidation.
Section 8.13.
Preferential Collection of Claims Against Company
.
If and when the Trustee shall be or become a creditor of the Company (or other obligor under
the Securities), the Trustee shall be subject to the provisions of the TIA regarding the collection
of claims against the Company (or any such other obligor). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
Section 8.14.
Reports By Trustee
.
(a) Within 60 days after April 15 of each year commencing with the first April 15 after the
issuance of Securities, the Trustee, if so required under the TIA, shall transmit by mail to all
Holders, in the manner and to the extent provided in TIA Section 313(c), a brief report
dated as of such April 15 in accordance with and with respect to the matters required by TIA
Section 313(a). The Trustee shall also transmit by mail to all Holders, in the manner and to the
extent provided in TIA Section 313(c), a brief report in accordance with and with respect to the
matters required by TIA Section 313(b)(2).
(b) A copy of each report transmitted to Holders pursuant to this Section 8.14 shall, at the
time of such transmission, be mailed to the Company and filed with each national securities
exchange, if any, upon which the Securities are listed and also with the SEC. The Company will
notify the Trustee promptly if the Securities are listed on any national securities exchange.
69
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE
Section 9.01.
Satisfaction and Discharge of Indenture
.
This Indenture shall be discharged and shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Securities as expressly provided for
herein) as to all Outstanding Securities hereunder, and the Trustee, upon Company Request and at
the expense of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(a) either
(1) all such Securities previously authenticated and delivered (except (A) lost, stolen
or destroyed Securities which have been replaced or paid as provided in Section 2.08 or (B)
all Securities whose payment has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged from such trust
as provided in Sections 2.04 and 2.05) have been delivered to the Trustee for cancellation;
or
(2) all such Securities not theretofore delivered to the Trustee for cancellation, have
become due and payable, whether at the Final Maturity Date, a Redemption Date or a
Fundamental Change Purchase Date, or upon conversion or otherwise, and the Company shall
have irrevocably deposited with the Trustee money sufficient to pay all such Securities at
the Final Maturity Date, such Redemption Date, Fundamental Change Purchase Date or other
maturity date, including interest (including Contingent Interest and Additional Interest, if
any) thereon to the Final Maturity Date, such Redemption Date, Fundamental Change Purchase
Date or other maturity date, and any shares of Common Stock or other property due in respect
of converted Securities, and if in each such case the Company shall have paid all other sums
payable hereunder by the Company.
(b) Notwithstanding the satisfaction and discharge hereof, the obligations of the Company to
the Trustee under Section 8.07 and, if United States dollars and/or shares of Common Stock or other
property shall have been deposited with the Trustee pursuant to subclause (2) of clause (a) of this Section 9.01, the obligations of the Trustee under Section
9.02 and the last paragraph of Section 2.04 shall survive.
Section 9.02.
Application of Trust Money and Property
.
Subject to the provisions of the last paragraph of Section 2.04, all United States dollars
and/or shares of Common Stock or other property deposited with the Trustee pursuant to Section 9.01
shall be held in trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal of, premium, if any, and interest (including Contingent Interest and Additional
Interest, if any) on, or cash and Common Stock or other property to be delivered upon
70
the
conversion of, the Securities for whose payment or settlement such United States dollars and/or
shares of Common Stock or other property have been deposited with the Trustee.
Section 9.03.
Reinstatement
.
If the Trustee, any Paying Agent or any Conversion Agent is unable to apply any money and/or
shares of Common Stock or other property in accordance with Section 9.02 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the Companys obligations under this
Indenture and the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee, such Paying Agent or such Conversion Agent
is permitted to apply all such money and/or shares of Common Stock or other property in accordance
with Section 9.02; provided, however, that if the Company has made any payment of the principal of
or interest (including Contingent Interest and Additional Interest, if any) on, or deliver cash and
Common Stock or other property to be delivered upon the conversion of, any Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive any such payment from the money and/or shares of Common Stock or
other property held by the Trustee, such Paying Agent or such Conversion Agent.
ARTICLE 10
AMENDMENTS; SUPPLEMENTS AND WAIVERS
Section 10.01.
Without Consent of Holders
.
(a) The Company and the Trustee may amend or supplement this Indenture or the Securities
without notice to or consent of any Holder of a Security for the purpose of:
(1) evidencing a successor to the Company and the assumption by that successor of the
Companys obligations under this Indenture and the Securities;
(2) adding to the Companys covenants for the benefit of the Holders or surrendering
any right or power conferred upon the Company;
(3) securing the Companys obligations in respect of the Securities;
(4) adding a guarantor or guarantors of the Securities or releasing any guarantor in
accordance with the terms of this Indenture;
(5) evidencing and providing for the acceptance of the appointment of a successor
trustee in accordance with Article 8;
(6) complying with the requirements of the SEC in order to effect or maintain the
qualification of this Indenture under the TIA, as contemplated by this Indenture or
otherwise;
71
(7) providing for conversion rights of Holders if any reclassification or change of
Common Stock or any consolidation, merger or sale of all or substantially all of the
Companys property and assets occurs or otherwise complying with the provisions of this
Indenture in the event of a merger, consolidation or transfer of assets (including the
provisions of Section 4.10 and Article 6);
(8) increasing the Conversion Rate, (A) in accordance with the terms of the Securities
or (B) provided that the increase will not adversely affect the interests of Holders;
(9) curing any ambiguity, omission or inconsistency in this Indenture or correcting or
supplementing any defective provision contained in this Indenture;
(10) providing for uncertificated Securities in addition to certificated Securities;
(11) conforming the Indenture to the description of the Securities provided for in the
Prospectus; or
(12) making any change that will not adversely affect the interests of the Holders in
any material respect.
Section 10.02.
With Consent of Holders
.
(a) The Company and the Trustee may amend or supplement this Indenture and/or the Securities
with the consent of the Holders of at least a majority in aggregate principal amount of the
Outstanding Securities (including consents obtained in connection with a tender offer or
exchange offer for Securities). However, without the written consent of each Holder affected,
an amendment, supplement or waiver may not:
(1) alter the manner of calculation or rate of accrual of interest (including
Contingent Interest and Additional Interest) on any Security, reduce the rate of interest
(including Contingent Interest and Additional Interest) on any Security or change the time
of payment of any installment of interest (including Contingent Interest and Additional
Interest, if any) with respect to, any Security;
(2) change the Stated Maturity of any Security;
(3) change the redemption provisions applicable to the Securities;
(4) make any of the Securities payable in money or securities other than that stated in
the Securities;
(5) reduce the principal amount, or Redemption Price, or Fundamental Change Purchase
Price (including any Make Whole Premium) payable with respect to any of the Securities;
72
(6) make any change that adversely affects the rights of a Holder to convert any of the
Securities in any material respect;
(7) make any change that adversely affects the rights of Holders to require the Company
to purchase Securities at the option of Holders in any material respect;
(8) change the provisions in this Indenture that relate to modifying or amending this
Indenture or waiving any past Default in the payment of principal, premium, if any, or
interest (including Contingent Interest and Additional Interest) on the Securities;
(9) change the Companys obligation to pay Contingent Interest or Additional Interest;
(10) impair the right to institute suit for the enforcement of any payment on or with
respect to any Security or with respect to the conversion of any Security.
(b) Without limiting the provisions of Section 10.02(a) hereof, the Holders of a majority in
aggregate principal amount of the Securities then outstanding may, on behalf of all the Holders of
all Securities, (i) waive compliance by the Company with the restrictive provisions of this
Indenture, and (ii) waive any past Default or Event of Default under this Indenture and its
consequences, except an uncured failure to pay when due the principal amount, accrued and unpaid
interest, accrued and unpaid Contingent Interest or Additional Interest or the Redemption Price, if
any, or the Fundamental Change Purchase Price, if any and as applicable, or to deliver Common Stock
as required, with respect to the Securities, or in respect of any provision which under this
Indenture cannot be modified or amended without the consent of the Holder of each outstanding
Security affected.
(c) Upon the written request of the Company, accompanied by a copy of Board Resolutions
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Holders as aforesaid, the Trustee shall join with the Company in the
execution of such supplemental indenture.
It shall not be necessary for any Act of Holders under this Section 10.02 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such Act
shall approve the substance thereof.
Section 10.03.
Execution of Supplemental Indentures and Agreements
.
In executing, or accepting the additional trusts created by, any supplemental indenture,
agreement, instrument or waiver permitted by this Article 10 or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, in addition to the
documents required by Section 13.04, and (subject to TIA Sections 315(a) through 315(d) and Section
8.03(a) hereof) shall be fully protected in relying upon, an Opinion of Counsel and an Officers
Certificate stating that the execution of such supplemental indenture, agreement or instrument (a)
is authorized or permitted by this Indenture and (b) does not violate the provisions of any
agreement or instrument evidencing any other Indebtedness of the Company or any other Restricted
Subsidiary. The Trustee may, but shall not be obligated to, enter into any such
73
supplemental
indenture, agreement or instrument which affects the Trustees own rights, duties or immunities
under this Indenture or otherwise.
Section 10.04.
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article 10, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder shall be bound thereby.
Section 10.05.
Conformity with Trust Indenture Act
.
Every supplemental indenture executed pursuant to this Article 10 shall conform to the
requirements of the TIA as then in effect.
Section 10.06.
Reference in Securities to Supplemental Indentures
.
Securities authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 10 may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
Section 10.07.
Notice of Supplemental Indentures
.
Promptly after the execution by the Company and the Trustee of any supplemental indenture
pursuant to the provisions of Section 10.02, the Company shall give notice thereof to the Holders
of each Outstanding Security affected, in the manner provided for in Section 13.02, setting forth
in general terms the substance of such supplemental indenture. Any failure of the Company to mail
such notice, or any defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
ARTICLE 11
REDEMPTION
Section 11.01.
Right to Redeem
. (a) The Securities may be redeemed in whole or in
part at the option of the Company:
(1) on or after November 15, 2019, if the Closing Price of the Companys Common Stock
has been at least 150% of Conversion Price then in effect for at least 20 Trading Days
during the 30 consecutive Trading Day period immediately preceding the date on which the
Company provides notice of redemption; and
(2) on or prior to November 15, 2010, if any Tax Triggering Event has occurred.
74
(b) The redemption price at which the Securities are redeemable (the
Redemption
Price
) shall be payable in cash and shall be equal to:
(1) in the case of a redemption pursuant to Section 11.01(a)(1), 100% of the principal
amount of Securities to be redeemed, together with accrued and unpaid interest (including
Contingent Interest and Additional Interest, if any) to, but excluding, the Redemption Date;
provided
, however, that if Securities are redeemed on a date that is after a Record Date and
prior to the corresponding Interest Payment Date, accrued and unpaid interest (including any
Contingent Interest and Additional Interest, if any) will be payable to the Holder of record
as of such Record Date.
(2) in the case of a redemption pursuant to Section 11.01(a)(2), 101.5% of the
principal amount of the Securities being redeemed plus (A) accrued and unpaid interest
(including Additional Interest, if any) to, but excluding, the Redemption Date and (B) if
the Redemption Conversion Value as of the Redemption Date of the Securities being redeemed
exceeds their Initial Conversion Value, 95% of the amount determined by subtracting the
Initial Conversion Value of such Securities from their Redemption
Conversion Value as of the Redemption Date;
provided
, however, that if Securities are
redeemed on a date that is after a Record Date and prior to the corresponding Interest
Payment Date, accrued and unpaid interest (including any Contingent Interest and Additional
Interest, if any) will be payable to the Holder of record as of such Record Date.
(c) The Company may not redeem any Securities unless all accrued and unpaid interest
(including Contingent Interest and Additional Interest, if any) thereon has been or is
simultaneously paid for all semi-annual periods or portions thereof terminating prior to the
Redemption Date.
(d) Except as provided in this Section 11.01, the Securities shall not be redeemable by the
Company.
Section 11.02.
Selection of Securities to be Redeemed.
If less than all the Securities are to be redeemed, the Trustee shall select the Securities to
be redeemed pro rata or by lot or by any other method the Trustee considers fair and appropriate.
The Trustee shall make the selection within 7 days from its receipt of the notice from the Company
delivered pursuant to Section 11.03 from Outstanding Securities not previously called for
redemption.
Securities and portions of them the Trustee selects shall be in principal amounts of $1,000 or
integral multiples of $1,000. Provisions of this Indenture that apply to Securities called for
redemption in whole also apply to Securities called for redemption in part. The Trustee shall
notify the Company promptly of the Securities or portions of Securities to be redeemed.
If any Security selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the converted portion of
such Security shall be deemed (so far as may be) to be the portion selected for
75
redemption. Securities which have been converted during a selection of Securities to be redeemed may be treated
by the Trustee as outstanding for the purpose of such selection.
Section 11.03.
Notice of Redemption
.
At least 20 days but not more than 60 days before a Redemption Date, the Company shall mail a
notice of redemption by first-class mail, postage prepaid, to the Trustee, the Paying Agent and
each Holder of Securities to be redeemed;
provided
, however, that the Company may not deliver any
such notice to any Holder of Securities at any time if all accrued and unpaid interest (including
Contingent Interest and Additional Interest, if any) thereon has been or is simultaneously paid for
all semi-annual periods or portions thereof terminating prior to the Redemption Date.
The notice shall specify the Securities to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Price;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Securities called for redemption may be converted at any time before the close
of business on the Business Day immediately preceding the Redemption Date;
(6) that Holders who want to convert Securities must satisfy the requirements set forth
therein and in this Indenture;
(7) that Securities called for redemption must be surrendered to the Paying Agent for
cancellation to collect the Redemption Price;
(8) if fewer than all the outstanding Securities are to be redeemed, the certificate
numbers (if such Securities are held other than in global form) and principal amounts of the
particular Securities to be redeemed;
(9) that, unless the Company defaults in making payment of such Redemption Price,
interest (including Contingent Interest and Additional Interest) will cease to accrue on and
after the Redemption Date; and
(10) the CUSIP and ISIN numbers of the Securities.
At the Companys written request delivered at least 30 days prior to the date such notice is
to be given (unless a shorter time period shall be acceptable to the Trustee), the Trustee shall
give the notice of redemption to each Holder of Securities to be redeemed in the Companys name and
at the Companys expense.
Section 11.04.
Effect of Notice of Redemption
.
76
Once notice of redemption is given, Securities called for redemption become due and payable on
the Redemption Date and at the Redemption Price stated in the notice except for Securities that are
converted in accordance with the terms of this Indenture. Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price stated in the notice.
Section 11.05.
Deposit of Redemption Price
.
Prior to 10:00 a.m. (New York City time) on a Redemption Date, the Company shall deposit with
the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of them is the Paying
Agent, shall segregate and hold in trust) money sufficient to pay the Redemption Price of all
Securities to be redeemed on that date other than Securities or portions of Securities called for
redemption which on or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of Securities pursuant to
Article 4. If such money is then held by the Company in trust and is not required for such purpose
it shall be discharged from such trust.
Section 11.06.
Securities Redeemed in Part
.
Upon surrender of a Security that is redeemed in part, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder a new Security in an authorized denomination
equal in principal amount to the unredeemed portion of the Security surrendered. The Company shall
not be required to (i) issue, register the transfer of, or exchange any Securities during a period
of 15 days before the Redemption Date or (ii) register the transfer of, or exchange any, Securities
so selected for redemption, in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
ARTICLE 12
SUBORDINATION
Section 12.01.
Agreement of Subordination
.
The Company covenants and agrees, and each Holder of Securities issued hereunder by its
acceptance thereof likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 12; and each Person holding any Security, whether upon original
issue or upon transfer, assignment or exchange thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of and interest (including Contingent Interest and Additional
Interest, if any) on all Securities, and (including, but not limited to, the Fundamental Change
Repurchase Price and the Redemption Price with respect to the Securities subject to repurchase or
redemption in accordance with Articles 3 and 11, respectively, and the payment of any cash upon
conversion in accordance with Article 4) issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the prior payment in full
in cash or other payment satisfactory to the holders of Senior Debt of all Senior Debt, whether
outstanding at the date of this Indenture or thereafter incurred.
77
No provision of this Article 12 shall prevent the occurrence of any Default or Event of
Default hereunder.
Section 12.02
Payments to Holders.
.
No payment shall be made with respect to the principal of or interest (including Contingent
Interest and Additional Interest, if any) on the Securities (including, but not limited to, the
Fundamental Change Repurchase Price and the Redemption Price with respect to the Securities subject
to purchase or redemption in accordance with Articles 3 and 11, respectively, and any payment of
cash upon conversion in accordance with Article 9), except payments and distributions made by the
Trustee as permitted by the first or second paragraph of Section 12.05, if:
(a) a default in the payment of principal, premium, interest or other amounts due on any
Senior Debt, or in respect of any redemption or repurchase obligation under any Senior Debt, occurs
and is continuing (or, in the case of Senior Debt for which there is a period of grace, in the
event of such a default that continues beyond the period of grace, if any, specified in the
instrument or lease evidencing such Senior Debt) (a
Payment Default
); or
(b) a default, other than a Payment Default, on any Designated Senior Debt occurs and is
continuing that then permits holders of such Designated Senior Debt (or any Representative) to
accelerate its maturity (a
Non-Payment Default
) and a Responsible Officer of the Trustee
receives at the Corporate Trust Office a written notice of the default (a
Payment Blockage
Notice
) from the Company or a Representative of Designated Senior Debt.
Notwithstanding the foregoing, following the delivery of a Payment Blockage Notice, no new
Payment Blockage Notice may be delivered and no new period of payment blockage with respect to the
Securities may begin until both (i) 365 consecutive days have elapsed since the effectiveness of
the immediately prior Payment Blockage Notice and (ii) all scheduled payments of principal, any
premium and interest (including Contingent Interest and Additional Interest, if any) with respect
to the Securities that are due have been paid in full in cash. No default that existed or was
continuing on the date of delivery of any Payment Blockage Notice with respect to the Designated
Senior Debt whose holders delivered the Payment Blockage Notice may be made the basis of a
subsequent Payment Blockage Notice by the holders of such Designated Senior Debt, whether or not
within a period of 365 consecutive days.
The Company may and shall resume payments on and distributions in respect of the Securities
upon:
(1) in the case of a Payment Default, the date upon which the default is cured or waived or
ceases to exist, or
(2) in the case of a Non-Payment Default, the earlier of (i) the date on which such default is
cured or waived or ceases to exist, in each case as and to the extent permitted under the
documentation for the Designated Senior Debt, or (ii) the 179
th
day after the date on
which the applicable Payment Blockage Notice is received, in each case, unless the maturity of the
Designated Senior Debt has been accelerated or this Article 12 otherwise prohibits the payment or
distribution at the time of such payment or distribution.
78
Upon any payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any dissolution or winding-up
or liquidation or reorganization of the Company (whether voluntary or involuntary) or in
bankruptcy, insolvency, receivership or similar proceedings, all amounts due or to become due upon
all Senior Debt shall first be paid in full in cash, or other payments satisfactory to the holders
of Senior Debt before any payment of cash, property or securities is made on account of the
principal of or interest (including Contingent Interest and Additional Interest, if any) on, or
with respect to the conversion of, the Securities (except, to the extent required by applicable
law, payments made pursuant to Article 9 from monies deposited with the Trustee pursuant thereto
prior to commencement of proceedings for such dissolution, winding-up, liquidation or
reorganization); and upon any such dissolution or winding-up or liquidation or reorganization of
the Company or bankruptcy, insolvency, receivership or other proceeding, any payment by the
Company, or distribution of assets of the Company of any kind or character, whether in cash,
property or securities, to which the Holders of the Securities or the Trustee would be entitled,
except for the provision of this Article 12, shall (except as aforesaid) be paid by the Company or
by any receiver, trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the Holders of the Securities or by the Trustee under this Indenture
if received by them or it, directly to the holders of Senior Debt (pro rata to such holders on
the basis of the respective amounts of Senior Debt held by such holders, or as otherwise required
by law or a court order) or their representative or representatives, or to the trustee or trustees
under any indenture pursuant to which any instruments evidencing any Senior Debt may have been
issued, as their respective interests may appear, to the extent necessary to pay all Senior Debt in
full in cash, or other payment satisfactory to the holders of Senior Debt, after giving effect to
any concurrent payment or distribution to or for the holders of Senior Debt, before any payment or
distribution is made to the Holders of the Securities or to the Trustee.
For purposes of this Article 12, the words, cash, property or securities shall not be deemed
to include shares of Capital Stock of the Company as reorganized or readjusted, or securities of
the Company or any other corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article 12 with respect to
the Securities to the payment of all Senior Debt which may at the time be outstanding; provided
that (i) the Senior Debt is assumed by the new corporation, if any, resulting from any
reorganization or readjustment, and (ii) the rights of the holders of Senior Debt (other than
leases which are not assumed by the Company or the new corporation, as the case may be) are not,
without the consent of such holders, altered by such reorganization or readjustment. The
consolidation of the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the conveyance, transfer or lease of all or
substantially all its property to another corporation upon the terms and conditions provided for in
Article 6 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this Section 12.02 if such other corporation shall, as a part of such consolidation,
merger, conveyance, transfer or lease, comply with the conditions stated in Article 6.
If payment of the Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Debt or their Representatives of such acceleration. The Company
shall not pay the Securities until five days after the holders or Representatives for the
79
holders
of Senior Debt receive notice of the acceleration and after which the Company shall pay the
Securities only if this Article 12 otherwise permits payment at that time.
In the event that, notwithstanding the foregoing provisions, any payment or distribution of
assets of the Company of any kind or character, whether in cash, property or securities (including,
without limitation, by way of setoff or otherwise), prohibited by the foregoing, shall be received
by the Trustee or the Holders of the Securities before all Senior Debt is paid in full, in cash or
other payment satisfactory to the holders of Senior Debt, or provision is made for such payment
thereof in accordance with its terms in cash or other payment satisfactory to the holders of Senior
Debt, such payment or distribution shall be held in trust for the benefit of and shall be paid over
or delivered to the holders of Senior Debt or their Representative or Representatives, as their
respective interests may appear, as calculated by the Company, for application to the payment of
all Senior Debt remaining unpaid to the extent necessary to pay all Senior Debt in full, in cash or
other payment satisfactory to the holders of Senior Debt or their Representative, after giving
effect to any concurrent payment or distribution to or for the holders of such Senior Debt.
Nothing in this Section 12.02 shall apply to claims of, or payments to, the Trustee under or
pursuant to Sections 7.06 or 8.07. This Section 12.02 shall be subject to the further provisions
of Section 12.05.
Section 12.03.
Subrogation of Securities
.
Subject to the payment in full, in cash or other payment satisfactory to the holders of Senior
Debt, of all Senior Debt, the rights of the Holders of the Securities shall be subrogated to the
extent of the payments or distributions made to the holders of such Senior Debt pursuant to the
provisions of this Article 12 (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to other indebtedness of the Company to
substantially the same extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of Senior Debt to receive payments or distributions of
cash, property or securities of the Company applicable to the Senior Debt until the principal of,
premium, if any, and interest (including Contingent Interest and Additional Interest, if any) on
the Securities shall be paid in full in cash or other payment satisfactory to the Holders of
Securities; and, for the 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 Securities or
the Trustee would be entitled except for the provisions of this Article 12, and no payment over
pursuant to the provisions of this Article 12, to or for the benefit of the holders of Senior Debt
by Holders of the Securities or the Trustee, shall, as between the Company, its creditors other
than holders of Senior Debt, and the Holders of the Securities, be deemed to be a payment by the
Company to or on account of the Senior Debt; and no payment or distribution of cash, property or
securities to or for the benefit of the Holders of the Securities pursuant to the subrogation
provisions of this Article 12, which would otherwise have been paid to the holders of Senior Debt
shall be deemed to be a payment by the Company to or for the account of the Securities. It is
understood that the provisions of this Article 12 are and are intended solely for the purposes of
defining the relative rights of the Holders of the Securities, on the one hand, and the holders of
the Senior Debt, on the other hand.
80
Nothing contained in this Article 12 or elsewhere in this Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than the holders of Senior
Debt, and the Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of, premium, if any, and
interest (including any Contingent Interest and Additional Interest) on the Securities as and when
the same shall become due and payable in accordance with their terms, or is intended to or shall
affect the relative rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Debt.
Upon any payment or distribution of assets of the Company referred to in this Article 12, the
Trustee, subject to the provisions of Section 8.01, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent jurisdiction in which such
bankruptcy, dissolution, winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the Holders of the Securities,
for the purpose of ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable
thereon and all other facts pertinent thereto or to this Article 12.
Section 12.04.
Authorization to Effect Subordination
.
Each Holder of a Security by the Holders acceptance thereof authorizes and directs the
Trustee on the Holders behalf to take such action as may be necessary or appropriate to effectuate
the subordination as provided in this Article 12 and appoints the Trustee to act as the Holders
attorney-in-fact for any and all such purposes.
Section 12.05.
Notice to Trustee
.
The Company shall give prompt written notice in the form of an Officers Certificate to a
Responsible Officer of the Trustee and to any Paying Agent of any fact known to the Company that
would prohibit the making of any payment of monies to or by the Trustee or any Paying Agent in
respect of the Securities pursuant to the provisions of this Article 12. Notwithstanding the
provisions of this Article 12 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
of monies to or by the Trustee in respect of the Securities pursuant to the provisions of this
Article 12, unless and until a Responsible Officer of the Trustee shall have received written
notice thereof at the applicable Corporate Trust Office from the Company (in the form of an
Officers Certificate) or a Representative or a Holder or Holders of Senior Debt or from any
trustee thereof; and before 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
that, if on a date not less than two Business Days prior to the date upon which by the
terms hereof any such monies may become payable for any purpose (including, without limitation, the
payment of the principal of or Interest on any Security) the Trustee shall not have received, with
respect to such monies, the notice provided for in this Section 12.05, then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purpose for which they were received, and shall
not be affected by any notice to the contrary which may be received by it on
81
or after such prior
date. Notwithstanding anything in this Article 12 to the contrary, nothing shall prevent any
payment by the Trustee to the Holders of monies deposited with it pursuant to Article 9, and any
such payment shall not be subject to the provisions of this Article 12.
The Trustee, subject to the provisions of Section 12.01, shall be entitled to rely on the
delivery to it of a written notice by a Representative or a person representing himself to be a
holder of Senior Debt (or a trustee on behalf of such holder) to establish that such notice has
been given by a Representative or a holder of Senior Debt. 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 12, 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 12, and if such evidence is not furnished the Trustee may defer any
payment to such Person pending judicial determination as to the right of such Person to receive
such payment.
Section 12.06.
Trustees Relation to Senior Debt
.
The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article 12 in respect of any Senior Debt at any time held by it, to the same extent as any other
holder of Senior Debt, and nothing in Section 8.13 or elsewhere in this Indenture shall deprive the
Trustee of any of its rights as such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe
only such of its covenants and obligations as are specifically set forth in this Article 12, and no
implied covenants or obligations with respect to the holders of Senior Debt shall be read into this
Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and, subject to the provisions of Section 4.01, the Trustee shall not be
liable to any holder of Senior Debt if it shall pay over or deliver to Holders of Securities, the
Company or any other Person money or assets to which any holder of Senior Debt shall be entitled by
virtue of this Article 12 or otherwise.
Section 12.07.
No Impairment of Subordination
.
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 which any such holder may have or otherwise be charged with.
Section 12.08.
Certain Conversions Not Deemed Payment
.
For the purposes of this Article 12 only, the issuance and delivery of Common Stock and the
payment of cash in lieu of fractional shares of such Common Stock upon conversion of a Security in
accordance with Article 4 shall not be deemed to constitute a payment or distribution on account of
the principal of or Interest on such Security. Nothing contained in this Article 12
82
or elsewhere
in this Indenture or in the Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Debt and the Holders, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in accordance with Article 4.
Section 12.09.
Article Applicable to Paying Agents
. If 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 (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 the first paragraph of Section 12.05 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 12.10.
Senior Debt Entitled to Rely
. The holders of Senior Debt (including,
without limitation, Designated Senior Debt) shall have the right to rely upon this Article 12, and
no amendment or modification of the provisions contained herein shall diminish the rights of such
holders unless such holders shall have agreed in writing thereto.
ARTICLE 13
MISCELLANEOUS
Section 13.01.
Conflict with Trust Indenture Act
.
If any provision hereof limits, qualifies or conflicts with any provision of the TIA or
another provision which is required or deemed to be included in this Indenture by any of the
provisions of the TIA, the provision or requirement of the TIA shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded,
as the case may be.
Section 13.02.
Notices
.
Any demand, authorization notice, request, consent or communication shall be given in writing
and mailed by first-class mail, postage prepaid, or delivered by recognized overnight courier
addressed as follows or transmitted by facsimile transmission (confirmed by delivery in person or
mail by first-class mail, postage prepaid, or by guaranteed overnight courier) to the following
facsimile numbers:
If to the Company, to:
General Cable Corporation
4 Tesseneer Drive
Highland Heights, Kentucky 41076
Attention: General Counsel
Facsimile No.: (859) 572-8444
83
or at any other address previously furnished in writing to the Trustee by the Company,
with a copy to:
Blank Rome LLP
One Logan Square
Philadelphia, Pennsylvania 19103-6998
Attention: Alan H. Lieblich, Esq., Jeffrey M. Taylor, Esq.
Facsimile No.: (215) 569-5555
if to the Trustee, to:
U.S. Bank National Association
Corporate Trust Services
CN-WN-06CT
425 Walnut Street, 6th Floor
Cincinnati, Ohio 45202
Attention: Robert T. Jones, Vice President
Facsimile No.: (513) 632-5511
or at any other address previously furnished in writing to the Holders or the Company or any other
obligor on the Securities by the Trustee.
Such notices or communications shall be effective when received.
The Company or the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
Where this Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, or delivered by recognized overnight courier, to each Holder affected
by such event, at its address as it appears in the register kept by the Primary Registrar, not
later than the latest date, and not earlier than the earliest date, prescribed for the giving of
such notice or by any other manner deemed acceptable to the Trustee. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other
Holders. Any notice when mailed to a Holder in the aforesaid manner shall be conclusively deemed to
have been received by such Holder whether or not actually received by such Holder. Where this
Indenture provides for notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause,
it shall be impracticable to mail notice of any event as required by any provision of this
Indenture, then any method of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
84
If the Company mails any notice to a Holder of a Security, it shall mail a copy to the Trustee
and each Registrar, Paying Agent and Conversion Agent.
Section 13.03.
Disclosure of Names and Addresses of Holders
.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities, and the Trustee shall comply with TIA Section
312(b). The Company, the Trustee, the Registrar and any other Person shall have the protection of
TIA Section 312(c). Further, every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee or any agent of either of
them shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders in accordance with TIA Section
312, regardless of the source from which such information was derived, and that the Trustee shall
not be held accountable by reason of mailing any material pursuant to a request made under TIA
Section 312.
Section 13.04.
Compliance Certificates and Opinions
.
(a) Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture and as may be requested by the Trustee, the Company and any other
obligor on the Securities (if applicable) shall furnish to the Trustee an Officers Certificate in
a form and substance reasonably acceptable to the Trustee stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with which constitutes a
condition precedent) relating to the proposed action have been complied with, and an Opinion of
Counsel in a form and substance reasonably acceptable to the Trustee stating that in the opinion of
such counsel all such conditions precedent, if any, have been complied with, except that, in the
case of any such application or request as to which the furnishing of such certificates or opinions
is specifically required by any provision of this Indenture relating to such particular application
or request, no additional certificate or opinion need be furnished.
(b) Every certificate or Opinion of Counsel with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate or individual or firm
signing such opinion has read and understands such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual or such firm, he or it has
made such examination or investigation as is necessary to enable him or it to express an
informed opinion as to whether or not such covenant or condition has been complied with; and
85
(4) a statement as to whether, in the opinion of each such individual or such firm,
such condition or covenant has been complied with.
Section 13.05.
Acts of Holders
.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the Act of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and conclusive
in favor of the Trustee and the Company, if made in the manner provided in this
Section 13.05.
(b) The ownership of Securities shall be proved by the register maintained by
the Primary Registrar.
(c) Any request, demand, authorization, direction, notice, consent, waiver or
other Act by the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, suffered or
omitted to be done by the Trustee, any Paying Agent or Conversion Agent, or the
Company or any other obligor of the Securities in reliance thereon, whether or not
notation of such action is made upon such Security.
(d) The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument or
writing acknowledged to him the execution thereof. Where such execution is by a
signer acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and date
of the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may, at
its option, by or pursuant to a Board Resolution, fix in advance a record date for
the determination of such Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. Notwithstanding TIA Section 316(c), any such
86
record date shall be the record date specified in or pursuant to such Board
Resolution, which shall be a date not more than 30 days prior to the first
solicitation of Holders generally in connection therewith and no later than the date
such first solicitation is completed.
(f) If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for purposes of determining whether Holders
of the requisite proportion of Securities then Outstanding have authorized or agreed
or consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for this purpose the Securities then Outstanding shall be
computed as of such record date; provided that no such request, demand,
authorization, direction, notice, consent, waiver or other Act by the Holders on
such record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after such record
date.
(g) For purposes of this Indenture, any action by the Holders which may be
taken in writing may be taken by electronic means or as otherwise reasonably
acceptable to the Trustee.
Section 13.06.
Benefits of Indenture
.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person
(other than the parties hereto and their successors hereunder, any Paying Agent and the Holders)
any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 13.07.
Legal Holidays
.
In any case where any Interest Payment Date, Fundamental Change Purchase Date, Redemption Date
or Final Maturity Date of any Security shall not be a Business Day, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of interest (including Contingent
Interest and Additional Interest, if any) or principal or premium, if any, need not be made on such
date, but may be made on the next succeeding Business Day with the same force and effect as if made
on such Interest Payment Date, Fundamental Change Purchase Date, Redemption Date or Final Maturity
Date, and no interest shall accrue with respect to such payment for the period from and after such
Interest Payment Date, Fundamental Change Purchase Date, Redemption Date or Final Maturity Date, as
the case may be, to the next succeeding Business Day.
Section 13.08.
Governing Law
.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
87
Section 13.09.
No Adverse Interpretation of Other Agreements
.
This Indenture may not be used to interpret another indenture, loan or debt agreement of the
Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used
to interpret this Indenture.
Section 13.10.
No Personal Liability of Directors, Officers, Employees and
Stockholders
.
No director, officer, employee, stockholder, incorporator or agent of the Company, as such,
will have any liability for any obligations of the Company under the Securities or the Indenture,
or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
holder of the Securities by accepting a Security waives and releases all such liability.
Section 13.11.
Successors and Assigns
.
All covenants and agreements in this Indenture by the Company shall bind their respective
successors and assigns, whether so expressed or not.
Section 13.12.
Multiple Counterparts
.
The parties may sign multiple counterparts of this Indenture. Each signed counterpart shall be
deemed an original, but all of them together represent the same agreement.
Section 13.13.
Separability Clause
.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 13.14.
Independence of Covenants
.
All covenants and agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any such covenants, the fact that it would be
permitted by an exception to, or be otherwise within the limitations of, another covenant shall not
avoid the occurrence of a Default or an Event of Default if such action is taken or condition
exists.
Section 13.15.
Schedules and Exhibits
.
All schedules and exhibits attached hereto are by this reference made a part hereof with the
same effect as if herein set forth in full.
Section 13.16.
Effect of Headings and Table of Contents
.
The Article and Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
[SIGNATURE PAGES FOLLOW]
88
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of the date and year
first above written.
|
|
|
|
|
|
Very truly yours,
GENERAL CABLE CORPORATION
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
|
|
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION, as Trustee
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
89
Exhibit A
[FORM OF FACE OF SECURITY]
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT, FOR PURPOSES OF SECTIONS 1272, 1273,
AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED. UPON THE REQUEST OF THE HOLDER OF THIS
NOTE, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO THE HOLDER OF THIS NOTE, (I) THE ISSUE PRICE OF
THE NOTE, (II) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IN RESPECT THEREOF, (III) THE ISSUE DATE OF
THE NOTE, (IV) THE COMPARABLE YIELD OF THE NOTE, AND (V) THE PROJECTED PAYMENT SCHEDULE OF THE
NOTE, IN EACH CASE AS DETERMINED UNDER THE ORIGINAL ISSUE DISCOUNT RULES OF THE U.S. INTERNAL
REVENUE CODE. PLEASE CONTACT: GENERAL CABLE CORPORATION, 4 TESSENEER DRIVE HIGHLAND HEIGHTS,
KENTUCKY 41076, ATTN: CHIEF FINANCIAL OFFICER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY TO GENERAL CABLE CORPORATION (THE COMPANY) OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS
EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS
NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS
EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
1
|
|
|
1
|
|
This paragraph should be included only if the Security
is a Global Security.
|
1
General Cable Corporation
Subordinated Convertible Note due 2029
|
|
|
No.:
|
|
CUSIP No. [ ]
|
|
|
ISIN No. [ ]
|
General Cable Corporation, a Delaware corporation, promises to pay to ______. or
registered assigns the principal amount of ______dollars ($______) (which amount
may from time to time be increased or decreased by adjustments made on the records of the Trustee,
as custodian for the Depositary, in accordance with the rules and procedures of the
Depositary)
2
on November 15, 2029, or such earlier date on which this Security shall
become due pursuant to the applicable redemption or repurchase provisions thereof.
This Security shall bear interest as specified on the other side of this Security. This
Security is convertible as specified on the other side of this Security.
Reference is made to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Security the right to convert
this Security into cash and, if applicable, 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 Security shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
Dated:
[SIGNATURE PAGE FOLLOWS]
|
|
|
2
|
|
This parenthetical should be included only if the
Security is a Global Security.
|
1
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
|
|
|
|
|
|
GENERAL CABLE CORPORATION
|
|
|
By:
|
|
|
|
|
Name:
|
|
|
|
|
Title:
|
|
|
|
Dated:
Trustees Certificate of Authentication:
This is one of the Securities referred to in the
within-mentioned Indenture.
|
|
|
|
|
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
|
|
|
By:
|
|
|
|
|
Authorized Officer
|
|
|
|
2
[FORM OF REVERSE SIDE OF SECURITY]
General Cable Corporation
Subordinated Convertible Note due 2029
1. Interest
General Cable Corporation, a Delaware corporation (the Company, which term shall include any
successor corporation under the Indenture hereinafter referred to), promises to pay interest in
cash on the principal amount of this Security at the rate of 4.50% per annum until November 15,
2019 and thereafter until maturity promises to pay interest in cash on the principal amount of this
Security at the rate of 2.25% per annum. The Company shall pay interest semiannually on May 15
and November 15 of each year (each an Interest Payment Date), commencing May 15, 2010. Interest
on the Securities will accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from November [ ], 2009. Each payment of interest will include interest
accrued through the day before the relevant Interest Payment Date, Redemption Date or Fundamental
Change Purchase Date, as the case may be. Cash interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Accrued and unpaid interest (including Contingent Interest and Additional Interest (each as
defined below), if any) payable upon a redemption or a purchase by the Company upon a Fundamental
Change will be paid to the person to whom principal is payable, unless the Redemption Date or
Fundamental Change Purchase Date is after a record date and on or prior to the related interest
payment date, in which case accrued and unpaid interest (including Contingent Interest and
Additional Interest, if any) to, but excluding, such interest payment date shall be paid on such
interest payment date to the record holder as of the record date.
Interest on Securities converted after the close of business on a Regular Record Date (as
defined below) but prior to the opening of business on the corresponding Interest Payment Date will
be paid to the Holder of the Securities on each Regular Record Date but, upon conversion, the
Holder must pay the Company the interest which has accrued and will be paid on such Interest
Payment Date, provided that no such payment need be made (i) in connection with a conversion
following the Regular Record Date preceding the Final Maturity Date, (ii) if the Company has
specified a Redemption Date that is after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, (iii) if the Company has specified a Fundamental Change
Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest
Payment Date, or (iv) to the extent of any overdue interest, if any overdue interest exists at the
time of conversion with respect to the Security.
If a payment date is not a Business Day, payment will be made on the next succeeding Business
Day, and no additional interest will accrue in respect of such payment by virtue of the payment
being made on such later date.
1
Beginning with the six-month interest period commencing November 15, 2019, the Company will
pay interest (Contingent Interest) during any six-month interest period if the Trading Price of
the Securities for each of the five Trading Days ending on the second Trading Day immediately
preceding the first day of the applicable six-month interest period equals or exceeds 120% of the
principal amount of the Securities. During any six-month interest period when Contingent Interest
is payable, the Contingent Interest payable on each $1,000 principal amount of Securities shall
equal 0.50% of the average Trading Price of $1,000 principal amount of Securities during the five
Trading Days ending on the second Trading Day immediately preceding the first day of the applicable
six-month interest period used to determine whether Contingent Interest must be paid.
If the Company has made an election to pay Additional Interest pursuant to Section 7.02(a) of
the Indenture in connection with any Event of Default from time to time relating to the Companys
failure to comply with its reporting obligations under Section 5.02 of the Indenture, then the
Holder of this Security is entitled to receive such Additional Interest as and to the extent
provided in the Indenture.
Any reference herein to interest accrued or payable as of any date shall include any
Contingent Interest and Additional Interest accrued or payable on such date as provided in the
Indenture.
No sinking fund is provided for the Securities.
2. Method of Payment
The Company shall pay interest (including Contingent Interest and Additional Interest, if any)
on this Security (except defaulted interest or interest payable in connection with a redemption or
repurchase as provided in the Indenture) to the person who is the Holder of this Security at the
close of business on May 1 or November 1, as the case may be (each, a Regular Record Date)
immediately preceding the related Interest Payment Date. The Holder must surrender this Security to
a Paying Agent to collect payment of principal and premium, if any. The Company will pay principal,
premium, if any, and interest (including Contingent Interest and Additional Interest, if any) and
cash payable in connection with any conversion of this Security in money of the United States that
at the time of payment is legal tender for payment of public and private debts.
3. Paying Agent, Registrar and Conversion Agent
Initially, U.S. Bank National Association (the Trustee, which term shall include any
successor trustee under the Indenture hereinafter referred to) will act as Paying Agent, Registrar
and Conversion Agent. The Company may change any Paying Agent, Registrar or Conversion Agent
without notice to the Holder. The Company or any of its Affiliates may, subject to certain
limitations set forth in the Indenture, act as Paying Agent.
4. Indenture
This Security is one of a duly authorized issue of Securities of the Company designated as its
Subordinated Convertible Notes due 2029 (the Securities), issued under an Indenture
2
dated as of November [ ], 2009 (together with any supplemental indentures thereto, the
Indenture), between the Company and the Trustee. The terms of this Security include those stated
in the Indenture and those required by or made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the TIA), as in effect on the date of the Indenture. This
Security is subject to all such terms, and the Holder of this Security is referred to the Indenture
and the TIA for a statement of them.
The Securities are subordinated unsecured obligations of the Company limited to
$[ ],000 aggregate principal amount. The Indenture does not limit other debt of the
Company, secured or unsecured.
5. Subordination
The payment of the principal, any premium and interest (including Contingent Interest and
Additional Interest, if any) on the Securities, and any cash payable upon conversion of the
Securities, including amounts payable on any redemption or repurchase, will be subordinated to the
prior payment in full of all of the Companys existing and future Senior Debt.
6. Redemption of Securities
No sinking fund is provided for the Securities. The Securities are redeemable as a whole, or
from time to time in part, (i) on or after November 15, 2019, at the option of the Company if the
Closing Price of the Companys Common Stock has been greater than or equal to 150% of Conversion
Price then in effect for at least 20 Trading Days during the 30 consecutive Trading Day period
immediately preceding the date on which the Company provides notice of redemption and (ii) on or
prior to November 15, 2010, if a Tax Triggering Event occurs.
The redemption price (the Redemption Price) for any such redemption is equal to (a) in the
case of a redemption described in clause (i) above, 100%, expressed as a percentage of the
principal amount of Securities to be redeemed, together with accrued and unpaid interest (including
Contingent Interest and Additional Interest, if any) to, but excluding, the Redemption Date and (b)
in the case of a redemption described in clause (ii) above, 101.5%, expressed as a percentage of
the principal amount of Securities to be redeemed, together with accrued and unpaid interest
(including Contingent Interest and/or Additional Interest, if any) to, but excluding, the
Redemption Date and, if the Redemption Conversion Value of the Securities being redeemed exceeds
their Initial Conversion Value, 95% of the amount determined by subtracting the Initial Conversion
Value of the Securities being redeemed from their Redemption Conversion Value.
7. Purchase of Securities at Option of Holder Upon a Fundamental Change
Upon a Fundamental Change, at the option of the Holder and subject to the terms and conditions
of the Indenture, the Company shall become obligated to purchase for cash, subject to certain
exceptions described in the Indenture, all or any part specified by the Holder (so long as the
principal amount of such part is $1,000 or an integral multiple of $1,000) of the Securities held
by such Holder on a date specified by the Company that is 30 Business Days after the later of the
Fundamental Change Effective Date and the date that a Issuer Fundamental Change Notice is
delivered, at a purchase price equal to 100% of the principal amount thereof together with
3
accrued and unpaid interest, if any, and accrued and unpaid Contingent Interest and Additional
Interest, if any, to, but excluding, the Fundamental Change Purchase Date. The Holder shall have
the right to withdraw any Fundamental Change Purchase Notice (in whole or in a portion thereof that
is $1,000 or an integral multiple of $1,000) at any time prior to the close of business on the
Business Day immediately preceding the Fundamental Change Purchase Date by delivering a written
notice of withdrawal to the Paying Agent in accordance with the terms of the Indenture.
8. Conversion
Subject to and upon compliance with the provisions of the Indenture and upon the occurrence of
the events specified in the Indenture, a Holder may surrender for conversion any Security that is
$1,000 principal amount or integral multiples thereof. In lieu of receiving shares of the Companys
Common Stock, a Holder will receive to the extent set forth in the Indenture, for each $1,000
principal amount of Securities surrendered for conversion:
|
|
|
cash in an amount equal to the lesser of (1) $1,000 and (2) the Conversion Value, as
defined in the Indenture; and
|
|
|
|
|
if the Conversion Value is greater than $1,000, a number of shares of the Companys Common
Stock (the Remaining Shares), equal to the sum of the Daily Share Amounts, as defined in the
Indenture, for each of the 20 consecutive Trading Days in the Conversion Reference Period, as
defined in the Indenture, subject to the Companys right to deliver cash in lieu of all or a
portion of the Remaining Shares as described in the Indenture.
|
No fractional share of Common Stock shall be issued upon conversion of a Security. Instead,
the Company shall pay a cash adjustment as provided in the Indenture.
9. Denominations, Transfer, Exchange
The Securities are in registered form, without coupons, in denominations of $1,000 principal
amount and integral multiples of $1,000 principal amount. A Holder may register the transfer of or
exchange Securities in accordance with the Indenture. The Registrar may require a Holder, among
other things, to furnish appropriate endorsements and transfer documents and to pay any taxes or
other governmental charges that may be imposed in relation thereto by law or permitted by the
Indenture.
10. Persons Deemed Owners
The Holder of a Security may be treated as the owner of it for all purposes.
11. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee
and any Paying Agent will pay the money back to the Company at its written request, subject to the
provisions of the Indenture. After that, Holders entitled to money must look to the Company for
payment as general creditors.
4
12. Amendment, Supplement and Waiver
Subject to certain exceptions, the Indenture or the Securities may be amended or supplemented
with the consent of the Holders of at least a majority in aggregate principal amount of the
Securities then outstanding, and an existing Default or Event of Default and its consequence or
compliance with any provision of the Indenture or the Securities may be waived in a particular
instance with the consent of the Holders of a majority in aggregate principal amount of the
Securities then outstanding. Without the consent of or notice to any Holder, the Company and the
Trustee may amend or supplement the Indenture or the Securities to, among other things, (x) cure
any ambiguity, omission, defect or inconsistency or (y) make any other change that does not
adversely affect the interests of the Holders in any material respect.
13. Successor Entity
When a successor corporation assumes all the obligations of its predecessor under the
Securities and the Indenture in accordance with the terms and conditions of the Indenture, the
predecessor corporation (except in certain circumstances specified in the Indenture) shall be
released from those obligations.
14. Defaults and Remedies
Under the Indenture, an Event of Default shall occur if:
(1) the Company shall fail to pay when due the principal, or any Redemption Price or any
Fundamental Change Purchase Price of any Security, including any Make Whole Premium, when the same
becomes due and payable whether at the Final Maturity Date, upon redemption, purchase, acceleration
or otherwise; or
(2) the Company shall fail to pay when due an installment of cash interest (including
Contingent Interest and Additional Interest, if any) on any of the Securities, which default
continues for 60 days after the date when due; or
(3) the Company shall fail to deliver when due all cash and any shares of Common Stock
deliverable upon conversion of the Securities, which failure continues for 15 days; or
(4) the Company shall fail to deliver an Issuer Fundamental Change Notice within the time
required to provide such notice as set forth in Section 3.01(b) of the Indenture; or
(5) the Company shall fail to perform or observe any other term, covenant or agreement
contained in the Securities or the Indenture for a period of 60 days after receipt by the Company
of a Notice of Default specifying such failure; or
(6) a default or defaults under the terms of one or more instruments evidencing or securing
Indebtedness of the Company or any of the Restricted Subsidiaries having an outstanding principal
amount of greater than $50,000,000 individually or in the aggregate, which default (a) is caused by
a failure to pay at final maturity principal on such Indebtedness within the applicable express
grace period, (b) results in the acceleration of such Indebtedness prior to its express final
maturity or (c) results in the commencement of judicial proceedings to foreclose
5
upon, or to exercise remedies under applicable law or applicable security documents to take
ownership of, the assets securing such Indebtedness; or
(7) a court having jurisdiction in the premises enters (x) a decree or order for relief in
respect of the Company or any of its Significant Subsidiaries in an involuntary case or proceeding
under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law
or (y) a decree or order adjudging the Company or any of its Significant Subsidiaries a bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or any of its Significant Subsidiaries
under any applicable federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or any of its Significant
Subsidiaries or of any substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order for relief or any such other decree
or order unstayed and in effect for a period of 90 consecutive days; or
(8) (a) the Company or any of its Significant Subsidiaries commences a voluntary case or
proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or any other case or proceeding to be adjudicated a bankrupt or insolvent; or
(b) the Company or any of its Significant Subsidiaries consents to the entry of a decree or
order for relief in respect of the Company or any of its Significant Subsidiaries in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against
the Company or any of its Significant Subsidiaries; or
(c) the Company or any of its Significant Subsidiaries files a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law; or
(d) the Company or any of its Significant Subsidiaries consents to the filing of such petition
or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or any of its Significant Subsidiaries or
of any substantial part of their property; or
(e) the Company or any of its Significant Subsidiaries makes an assignment for the benefit of
creditors; or
(f) the Company or any of its Significant Subsidiaries admits in writing its inability to pay
its debts generally as they become due; or
(g) the Company or any of its Significant Subsidiaries takes corporate action in furtherance
of any such action.
Notwithstanding the above, no Event of Default under clause (5) above shall occur until the
Trustee notifies the Company in writing, or the Holders of at least 25% in aggregate principal
amount of the Securities then Outstanding notify the Company and the Trustee in writing, of the
Default (a Notice of Default), and the Company does not cure the Default within the time
specified in clause (5) after receipt of such notice.
6
If an Event of Default (other than an Event of Default specified in clause (7) or (8) above)
shall occur and be continuing with respect to the Indenture, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities then Outstanding may, and the Trustee at
the request of such Holders shall, declare all unpaid principal of, premium, if any, and accrued
interest (including Contingent Interest and Additional Interest, if any) on all Securities to be
due and payable, by a notice in writing to the Company (and to the Trustee if given by the Holders
of the Securities). Upon any such declaration, such principal, premium, if any, and accrued
interest (including Contingent Interest and Additional Interest, if any) shall become due and
payable immediately.
If an Event of Default specified in clauses (7) or (8) occurs and is continuing, then all the
Securities shall ipso facto become and be due and payable immediately in an amount equal to the
principal amount of the Securities, together with accrued and unpaid interest, if any, to the date
the Securities become due and payable, without any declaration or other act on the part of the
Trustee or any Holder.
The Holders of a majority in aggregate principal amount of the Securities Outstanding, by
written notice to the Company and the Trustee, may rescind and annul an acceleration and its
consequences if: (a) the Company has paid or deposited with the Trustee a sum sufficient to pay (1)
all sums paid or advanced by the Trustee under the Indenture and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, (2) all overdue
interest on all Outstanding Securities, (3) the principal of and premium, if any, on any
Outstanding Securities which have become due otherwise than by such declaration of acceleration and
interest (including Contingent Interest and Additional Interest, if any) thereon at the rate borne
by the Securities, and (4) to the extent that payment of such interest is lawful, interest upon
overdue interest at the rate borne by the Securities; (b) the rescission would not conflict with
any judgment or decree of a court of competent jurisdiction; and (c) all Events of Default, other
than the non-payment of principal of, premium, if any, and interest (including Contingent Interest
and Additional Interest, if any) on the Securities which have become due solely by such declaration
of acceleration, have been cured or waived. No such rescission shall affect any subsequent Default
or impair any right consequent thereon.
Holders may not enforce the Indenture or the Securities except as provided in the Indenture.
The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority in aggregate principal amount of
the Securities then outstanding may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders for a period of 30 days notice of any continuing Default (except
a Default in payment of principal, premium, if any, or interest (including Contingent Interest and
Additional Interest, if any)) if and so long as it determines that withholding notice is in their
interests. The Company is required to file periodic certificates with the Trustee as to the
Companys compliance with the Indenture and knowledge or status of any Default.
15. Tax Treatment
The Company agrees, and by acceptance of beneficial ownership interest in the Security each
Holder of the Securities will be deemed to have agreed, for U.S. federal income tax
7
purposes (1) to treat the Debentures as indebtedness that is subject to Treas. Reg. Sec.
1.1275-4 (the Contingent Payment Regulations) and, for purposes of the Contingent Payment
Regulations, to treat the cash and the fair market value of any stock beneficially received by a
Holder upon any conversion of the Securities as a contingent payment and (2) to be bound by the
Companys determination of the comparable yield and projected payment schedule, within the
meaning of the Contingent Payment Regulations, with respect to the Securities. A Holder may obtain
the issue price, amount of original issue discount, issue date, yield to maturity, comparable yield
and projected payment schedule for the Securities by submitting a written request for such
information to the Company at the following address: General Cable Corporation, 4 Tesseneer Drive,
Highland Heights, Kentucky 41076, Attention: Chief Financial Officer.
16. Trustee Dealings With the Company
U.S. Bank National Association, the initial Trustee under the Indenture, or any of its
Affiliates, in its individual or any other capacity, may make loans to, accept deposits from and
perform services for the Company or an Affiliate of the Company, and may otherwise deal with the
Company or an Affiliate of the Company, as if it were not the Trustee.
17. No Recourse Against Others
No director, officer, employee, stockholder, incorporator or agent of the Company, as such,
will have any liability for any obligations of the Company under the Securities, the Indenture, or
for any claim based on, in respect of, or by reason of, such obligations or their creation. Each
holder of the Securities by accepting a Security waives and releases all such liability.
18. CUSIP and ISIN Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification
Procedures, the Company has caused CUSIP and ISIN numbers to be printed on the Securities and has
directed the Trustee to use CUSIP and ISIN numbers in notices of redemption and notices relating to
fundamental changes as a convenience to Securityholders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained in any notice of
redemption or any notice relating to a fundamental change and reliance may be placed only on the
other identification numbers placed thereon.
19. Authentication
This Security shall not be valid until the Trustee or an authenticating agent manually signs
the certificate of authentication on the other side of this Security.
20. Abbreviations and Definitions
Customary abbreviations may be used in the name of the Holder or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors
Act).
8
All terms defined in the Indenture and used in this Security but not specifically defined
herein are defined in the Indenture and are used herein as so defined.
21. Indenture to Control; Governing Law
In the case of any conflict between the provisions of this Security and the Indenture, the
provisions of the Indenture shall control. This Security and the Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.
The Company will furnish to any Holder, upon written request and without charge, a copy of the
Indenture. Requests may be made to: General Cable Corporation, 4 Tesseneer Drive, Highland Heights,
KY 41076, Attention: General Counsel, Facsimile No. (859) 572-8444, Telephone No. (859) 572-8000.
9
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
(insert assignees soc. sec. or tax I.D. no.)
Print or type assignees name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may substitute another
to act for him or her.
|
|
|
|
|
|
|
Your Signature:
|
|
|
Date:
|
|
|
|
|
|
|
(Sign exactly as your name appears on the
|
|
|
|
|
other side of this Security)
|
|
|
|
|
|
* Signature guaranteed by:
|
|
|
|
*
|
|
The signature must be guaranteed by an institution which is a member of one of the
following recognized signature guaranty programs: (i) the Securities Transfer Agent
Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii)
the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable
to the Trustee.
|
1
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
o
To convert only part of this Security, state the principal amount to be converted (must be
$1,000 or a integral multiple of $1,000):
$
.
If you want the stock certificate made out in another persons name, fill in the form below:
(insert assignees soc. sec. or tax I.D. no.)
Print or type assignees name, address and zip code)
|
|
|
|
|
|
Your Signature:
|
Date:
|
|
|
|
|
(Sign exactly as your name appears on the
|
|
|
other side of this Security)
|
|
|
|
* Signature guaranteed by:
|
|
|
|
*
|
|
The signature must be guaranteed by an institution which is a member of one of the
following recognized signature guaranty programs: (i) the Securities Transfer Agent
Medallion Program (STAMP); (ii) the New York Stock Exchange Medallion Program (MSP); (iii)
the Stock Exchange Medallion Program (SEMP); or (iv) such other guaranty program acceptable
to the Trustee.
|
1
FUNDAMENTAL CHANGE PURCHASE NOTICE
To: General Cable Corporation
The undersigned registered owner of this Security hereby irrevocably acknowledges receipt of a
notice from General Cable Corporation (the Company) as to the occurrence of a Fundamental Change
with respect to the Company and requests and instructs the Company to purchase the entire principal
amount of this Security, or the portion thereof (which is $1,000 or an integral multiple thereof)
below designated, in accordance with the terms of the Indenture referred to in this Security at the
Fundamental Change Purchase Price, together with accrued and unpaid interest (including Contingent
Interest and Additional Interest, if any), if any, to, but excluding, such date, to the registered
Holder hereof.
|
|
|
|
|
|
Your Signature:
|
|
|
|
Date:
|
|
|
|
|
Signature(s)
|
|
|
|
|
|
Signature(s) must be guaranteed by
a qualified guarantor institution
with membership in an approved
signature guarantee program
pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934.
|
|
|
|
|
|
|
|
|
Signature Guaranty
|
Principal amount to be repurchased (in
|
|
|
an integral multiple of $1,000, if less than all):
|
|
|
|
|
|
NOTICE:
|
|
The signature to the foregoing Election must correspond to the Name as written
upon the face of this Security in every particular, without any alteration or change
whatsoever.
|
1
SCHEDULE OF EXCHANGES OF SECURITIES
3
The following exchanges, redemptions, purchases or conversions of a part of this Global
Security have been made:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Principal Amount of
|
|
|
|
|
Authorized
|
|
Amount of Decrease
|
|
Amount of Increase
|
|
this Global
|
|
|
|
|
Signatory of
|
|
in Principal Amount
|
|
in Principal Amount
|
|
Security Following
|
Date of Decrease or
|
|
Securities
|
|
of this Global
|
|
of this Global
|
|
Such Decrease or
|
Increase
|
|
Custodian
|
|
Security
|
|
Security
|
|
Increase
|
|
|
|
3
|
|
This schedule should be included only if the Security
is a Global Security.
|
1