Exhibit 4.4
EXECUTION COPY
BUNGE LIMITED FINANCE CORP.,
as Issuer
BUNGE LIMITED,
as Guarantor
AND
THE BANK OF NEW YORK,
as Trustee
3 3/4% Convertible Notes Due 2022
INDENTURE
Dated as of November 27, 2002
TABLE OF CONTENTS
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Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S |
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Consolidation, Merger, Amalgamation and Sale of Assets by the Guarantor |
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Purchase of Notes at Option of Holders Upon Specified Purchase Dates |
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Purchase of Notes at the Option of Holders Upon a Change of Control |
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Rules by Trustee, Paying Agent, Conversion Agent and Registrar |
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No Bankruptcy Petition Against the Borrower; Liability of the Borrower |
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Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S |
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EXHIBIT E |
Form of Certificate to be Delivered in Connection with Transfers of Restricted Common Shares |
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SCHEDULE 1.1 |
Designated Obligors and Material Subsidiaries |
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SCHEDULE 4.1 |
Full Member States of the European Union |
iv
CROSS-REFERENCE TABLE
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Trust
Indenture |
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Indenture |
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310(a)(1) |
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8.10 |
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(a)(2) |
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8.10 |
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(a)(3) |
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N.A. |
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(a)(4) |
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N.A. |
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(b) |
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8.8; 8.10 |
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(c) |
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N.A. |
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311(a) |
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8.11 |
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(b) |
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8.11 |
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(c) |
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N.A. |
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312(a) |
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2.5 |
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(b) |
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13.3 |
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(c) |
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13.3 |
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313(a) |
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8.6 |
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(b)(1) |
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N.A. |
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(b)(2) |
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8.6 |
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(c) |
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8.6 |
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(d) |
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8.6 |
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314(a) |
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3.11; 13.2; 13.5 |
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(b) |
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N.A. |
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(c)(1) |
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13.4 |
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(c)(2) |
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13.4 |
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(c)(3) |
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N.A. |
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(d) |
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N.A. |
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(e) |
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13.5 |
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315(a) |
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8.1 |
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(b) |
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8.5; 13.2 |
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(c) |
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8.1 |
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(d) |
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8.1 |
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(e) |
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7.11 |
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316(a)(last sentence) |
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13.6 |
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(a)(1)(A) |
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7.5 |
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(a)(1)(B) |
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7.4 |
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(a)(2) |
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N.A. |
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(b) |
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7.8 |
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317(a)(1) |
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7.8 |
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(a)(2) |
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7.9 |
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(b) |
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2.4 |
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318(a) |
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13.1 |
N.A. means Not Applicable.
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be part of this Indenture.
v
INDENTURE dated as of November 27, 2002, among BUNGE LIMITED FINANCE CORP., a Delaware corporation (the “Company”), as issuer, BUNGE LIMITED, a company incorporated under the laws of Bermuda with limited liability (the “Guarantor”), as guarantor, and THE BANK OF NEW YORK, a New York banking corporation (the “Trustee”), as trustee.
Each party agrees as follows for the benefit of the other parties and for the equal and ratable benefit of the Holders of (i) the Company’s 3¾% Convertible Notes Due 2022 issued on the date hereof and the guarantee thereof by the Guarantor (the “Initial Notes”) and (ii) if and when issued, additional 3¾% Convertible Notes Due 2022 which may be offered subsequent to the Issue Date and the guarantee thereof by the Guarantor (the “Subsequent Notes” and together with the Initial Notes, the “Notes”).
“Affiliate” means, with respect to any specified Person, any other Person, directly or indirectly, controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing; provided, however, that the existence of a management contract by the Company or an Affiliate of the Company to manage another entity shall not be deemed to be control.
“Agent Member” has the meaning ascribed to it in Section 2.1(d) hereof.
“Authenticating Agent” has the meaning ascribed to it in Section 2.2 hereof.
“Average Sale Price” means the average of the Sales Prices of the Common Shares for the shortest of:
(1) 30 consecutive trading days ending on the last full trading day prior to the Time of Determination with respect to the rights, warrants or options or distribution in respect of which the Average Sale Price is being calculated;
(2) the period (x) commencing on the date next succeeding the first public announcement of (a) the issuance of rights, warrants or options or (b) the distribution, in each case, in respect of which the Average Sale Price is being calculated and (y) proceeding through the last full trading day prior to the Time of Determination with respect to the rights, warrants or options or distribution in respect of which the Average Sale Price is being calculated (excluding days within such period, if any, which are not trading days); and
(3) the period, if any, (x) commencing on the date next succeeding the Ex-Dividend Time with respect to the next preceding (a) issuance of rights, warrants or options or (b) distribution, in each case, for which an adjustment is required by the provisions of Section 12.7, 12.8 or 12.9 hereof and (y) proceeding through the last full trading day prior to the Time of Determination with respect to the rights, warrants or options or distribution in respect of which the Average Sale Price is being calculated (excluding days within such period, if any, which are not trading days).
In the event that the Ex-Dividend Time (or in the case of a consolidation, division, subdivision, combination or reclassification, the effective date with respect thereto) with respect to a dividend, consolidation, division, subdivision, combination or reclassification to which Section 12.6(1), (2), (3) or (4) hereof applies occurs during the period applicable for calculating “Average Sale Price” pursuant to this definition, “Average Sale Price” shall be calculated for such period in a manner determined by the Board of Directors of the Guarantor to reflect the effect of such dividend, consolidation, division, subdivision, combination or reclassification on the Sale Price of the Common Shares during such period.
“Board of Directors” means, with respect to any Person, the board of directors of such Person or any duly authorized committee thereof.
“Bunge Master Trust” means the trust created pursuant to the Pooling Agreement, a beneficial interest in the assets of which will be acquired by the Company through the Series 2002-1 VFC.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banking institutions are authorized or required by law to close in New York, New York.
“Capital Stock” means, with respect to any Person, any and all shares, interests, rights to purchase, warrants, options (whether or not currently exercisable), participations or other equivalents of or interests in (however designated) the equity (which includes, but is not limited to, common shares, common stock, preference shares, preferred stock and partnership and joint venture interests) of such Person (excluding any debt securities convertible into, or exchangeable for, such equity).
“Change of Control” means (a) with respect to the Guarantor, the occurrence of either of the following events:
(1) at any time during any twelve (12) consecutive calendar months, more than 50% of the members of the Board of Directors of the Guarantor who were members on the first day of such period shall have resigned or shall have been removed or replaced, other than as a result of death, disability or change in personal circumstances; or
(2) any person or “group” (as defined in section 13(d)(3) of the Exchange Act, but excluding (A) any employee benefit or stock ownership plans of the Guarantor, (B) members of the Board of Directors and executive officers of the Guarantor as of the Issue Date, (C) the families of such members and executive officers, and (D) family trusts established by or for the benefit of any of the foregoing individuals) shall have acquired
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more than 50% of the combined voting power of all classes of common shares of the Guarantor,
provided that a Change of Control shall not be deemed to have occurred under this clause (a) in the event that the purchase by the Guarantor of common shares issued and outstanding on the Issue Date results in one or more of the Guarantor’s shareholders of record as of the Issue Date controlling more than 50% of the combined voting power of all classes of common shares of the Guarantor; and
(b) with respect to the Company, if at any time the Guarantor shall fail to own, directly or indirectly, 100% of the Capital Stock of the Company.
“Change of Control Offer” has the meaning ascribed to it in Section 6.2(a) hereof.
“Change of Control Payment” has the meaning ascribed to it in Section 6.2(a) hereof.
“Change of Control Payment Date” has the meaning ascribed to it in Section 6.2(b) hereof.
“Change of Control Purchase Notice” has the meaning ascribed to it in Section 6.2(c) hereof.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Common Shares” means common shares, par value $0.01 per common share, of the Guarantor or any other Capital Stock of the Guarantor into which such Common Shares shall be reclassified or changed.
“Common Shares Restrictive Legend” has the meaning ascribed to it in Section 12.22 hereof.
“Company” means Bunge Limited Finance Corp. or its successor.
“Company Notice” has the meaning ascribed to it in Section 6.1(d) hereof.
“Company Order” has the meaning ascribed to it in Section 2.2 hereof.
“Consolidated Net Income” means, with respect to any period, the consolidated net income (or loss) of the Guarantor and its Subsidiaries for such period (taken as a cumulative whole) as determined in accordance with GAAP, after eliminating all offsetting debits and credits between the Guarantor and its Subsidiaries and all other items required to be eliminated in the course of the preparation of consolidated financial statements of the Guarantor and its Subsidiaries in accordance with GAAP.
“Consolidated Total Assets” means, at any date of determination, the amount at which the total assets of the Guarantor and the Subsidiaries appear on the then most recent
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annual consolidated balance sheet of such Persons prepared in accordance with U.S. GAAP, after deduction of depreciation, amortization and all other properly deductible valuation reserves.
“Conversion Agent” has the meaning ascribed to it in Section 2.3 hereof.
“Conversion Date” has the meaning ascribed to it in Section 12.2 hereof.
“Conversion Price” has the meaning ascribed to it in Section 12.1 hereof.
“Conversion Rate” has the meaning ascribed to it in Section 12.1 hereof.
“Corporate Trust Office” has the meaning ascribed to it in Section 3.3 hereof.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest” has the meaning ascribed to it in Section 2.13 hereof.
“Definitive Notes” means certificated Notes.
“Designated Obligor” means the Guarantor and the Subsidiaries of the Guarantor set forth on Schedule 1.1 hereto and any other Subsidiary designated by the Guarantor from time to time, and each of their successors.
“DTC” means The Depository Trust Company, its nominees and their respective successors and assigns, or such other depository institution hereinafter appointed by the Company.
“Event of Default” has the meaning ascribed to it in Section 7.1 hereof.
“Ex-Dividend Time” means the time immediately prior to the commencement of “ex-dividend” trading for rights, warrants or options or a distribution to which Section 12.7, 12.8 or 12.9 applies on the NYSE or, if the Common Shares are not listed on the NYSE, such other principal U.S. securities exchange or market on which the Common Shares are then listed or quoted.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended.
“Expiration Time” has the meaning ascribed to it in Section 12.10 hereof.
“Fiscal Year” means the fiscal year of the Company ending on December 31 of each year.
“Global Notes” has the meaning ascribed to it in Section 2.1(a) hereof.
“guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and any obligation, direct or indirect, contingent or otherwise, of such Person:
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(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term “guarantee” will not include endorsements for collection or deposit in the ordinary course of business. The term “guarantee,” when used as a verb, has a corresponding meaning.
“Guarantee” means any guarantee of payment of the Notes and any other obligations of the Company by the Guarantor pursuant to the terms of this Indenture.
“Guarantor” means Bunge Limited.
“Guaranty” means the Third Amended and Restated Guaranty, dated as of September 6, 2002, by the Guarantor to Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., JPMorgan Chase Bank and the Master Trust Trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, subject to Section 3.2(f) hereof.
“Hedge Agreements” means all interest rate swaps, caps or collar agreements or similar arrangements dealing with interest rates or currency exchange rates or the exchange of nominal interest obligations, either generally or under specific contingencies.
“Holder” or “Noteholder” means the Person in whose name a Note is registered in the Note Register.
“IAI” has the meaning ascribed to it in Section 2.1(a) hereof.
“Indebtedness” means, as to any Person, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property, except trade accounts payable arising in the ordinary course of business, (d) all obligations of such Person as lessee which are capitalized in accordance with U.S. GAAP, (e) all obligations of such Person created or arising under any conditional sales or other title retention agreement with respect to any property acquired by such Person (including without limitation, obligations under any such agreement which provides that the rights and remedies of the seller or lender thereunder in the event of default are limited to repossession or sale of such property), (f) all obligations of such Person with respect to letters of credit and similar instruments, including without limitation obligations under reimbursement agreements, (g) all Indebtedness of others secured by (or for which the holder of such Indebtedness has existing right, contingent or otherwise, to be secured by) a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person, (h) all net obligations of such
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Person in respect of equity derivatives and Hedge Agreements and (i) all guarantees of such Person (other than guarantees of obligations of direct or indirect Subsidiaries of such Person).
“Indenture” means this Indenture, as amended or supplemented from time to time in accordance with its terms.
“Initial Purchasers” means, collectively, Morgan Stanley & Co. Incorporated, Salomon Smith Barney Inc. and the other several Initial Purchasers named in Schedule 1 to the Purchase Agreement.
“Initial Notes” has the meaning ascribed to it in the second introductory paragraph of this Indenture.
“Institutional Accredited Investor Global Note” has the meaning ascribed to it in Section 2.1(a) hereof.
“Interest Payment Date” has the meaning ascribed to it in the form of Note attached as Exhibit A hereto.
“Issue Date” means the date on which the Initial Notes are originally issued.
“Legal Holiday” has the meaning ascribed to it in Section 13.8 hereof.
“Lien” means any mortgage, lien, security interest, pledge, charge or other encumbrance.
“Market Price” means, with respect to the Common Shares, the average of the Sale Prices for the 20-trading-day period ending on the third Business Day prior to the applicable Specified Purchase Date, or, if such Business Day is not a trading day, then on the last trading day prior to such Business Day
“Master Trust Transaction Documents” means the collective reference to the Pooling Agreement, the Series 2002-1 Supplement, the Series 2002-1 VFC, the Sale Agreement, the Servicing Agreement and the Guaranty.
“Master Trust Trustee” means The Bank of New York, as trustee under, and for the purposes of, the Master Trust Transaction Documents, and any successor thereto.
“Material” means material in relation to the business, operations, affairs, financial condition, assets or properties of the Guarantor and its consolidated Subsidiaries taken as a whole.
“Material Adverse Effect” means a material adverse effect, or any development involving a prospective material adverse effect, in the condition, financial or otherwise, or in the earnings, business or operations of the Guarantor and its Subsidiaries taken as a whole.
“Material Subsidiary” means, at any time, any Subsidiary of the Guarantor which at such time (a) has total assets aggregating in excess of 5% of Consolidated Total Assets or
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(b) the portion of Consolidated Net Income which was contributed by such Subsidiary during the four fiscal quarters then most recently ended exceeds 5% of Consolidated Net Income. The Material Subsidiaries as of the date hereof are set forth on Schedule 1.1 hereto.
“Non-U.S. Person” means a person who is not a U.S. person, as defined in Regulation S.
“Note Private Placement Legend” has the meaning ascribed to it in Section 2.1(c) hereof.
“Note Register” means the register of Notes, maintained by the Registrar, pursuant to Section 2.3 hereof.
“Note Regulation S Legend” has the meaning ascribed to it in Section 2.1(c) hereof.
“Note Restrictive Legend” means the Note Private Placement Legend set forth in clause (1) of Section 2.1(c) hereof or the Note Regulation S Legend set forth in clause (2) of Section 2.1(c) hereof, as applicable.
“Notes” means the collective reference to the Initial Notes and the Subsequent Notes.
“NYSE” means The New York Stock Exchange.
“Obligations” has the meaning ascribed to it in Section 11.1 hereof.
“Officer” means the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, any Vice President, the Treasurer or the Secretary of the Company or the Guarantor, as applicable.
“Officers’ Certificate” means a certificate signed by two Officers or attorneys-in-fact or by an Officer and either an Assistant Treasurer or an Assistant Secretary of the Company or the Guarantor, as applicable.
“Opinion of Counsel” means a written opinion from legal counsel, which counsel may be an employee of or counsel to the Company.
“Pari Passu Indebtedness” means Indebtedness for borrowed money, the proceeds of which are used to purchase interests in the Series 2002-1 VFC and/or to refinance Indebtedness originally used for such purpose, and Indebtedness incurred in connection with Hedge Agreements, in each case which ranks not greater than pari passu (in priority of payment) with the Notes.
“Paying Agent” has the meaning ascribed to it in Section 2.3 hereof.
“Permitted Indebtedness” means (a) Indebtedness of the Company under the Notes and (b) Pari Passu Indebtedness.
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“Person” means any individual, company, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company, government or any agency or political subdivision hereof or any other entity.
“Pooling Agreement” means the Third Amended and Restated Pooling Agreement, dated as of September 6, 2002, among Bunge Funding, Inc., Bunge Management Services, Inc., as servicer, and The Bank of New York, in its capacity as Master Trust Trustee, as amended, modified or supplemented from time to time in accordance with its terms, subject to Section 3.2(f) hereof.
“Property” has the meaning ascribed to it in Section 3.2(d) hereof.
“Purchase Agreement” means the Purchase Agreement dated November 21, 2002 among the Company, the Guarantor and the Initial Purchasers.
“Purchase Price” has the meaning ascribed to it in Section 6.1(a) hereof.
“QIB” means any “qualified institutional buyer” (as defined in Rule 144A under the Securities Act).
“Record Date” has the meaning ascribed to it on the front of the form of Note attached as Exhibit A hereto.
“Redemption Date” means, with respect to any redemption of Notes, the date of redemption with respect thereto.
“Redemption Price” has the meaning ascribed to it in Section 5.1 hereto.
“Registrar” has the meaning ascribed to it in Section 2.3 hereof.
“Registration Rights Agreement” means the Registration Rights Agreement dated the Issue Date among the Company, the Guarantor and the Initial Purchasers.
“Regulation S” has the meaning ascribed to it in Section 2.1(a) hereof.
“Regulation S Global Note” has the meaning ascribed to it in Section 2.1(a) hereof.
“Regulation S Note” has the meaning ascribed to it in Section 2.1(a) hereof.
“Resale Restriction Termination Date” has the meaning ascribed to it in Section 2.6 hereof.
“Restricted Period” means the 40 consecutive days beginning on and including the later of (A) the day on which the Initial Notes are offered to persons other than distributors (as defined in Regulation S under the Securities Act) and (B) the Issue Date.
“Rule 144A” has the meaning ascribed to it in Section 2.1(a) hereof.
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“Rule 144A Global Note” has the meaning ascribed to it in Section 2.1(a) hereof.
“Rule 144A Note” has the meaning ascribed to it in Section 2.1(a) hereof.
“Sale Agreement” means the Second Amended and Restated Sale Agreement, dated as of September 6, 2002, among Bunge Funding, Inc., as buyer, and Bunge Finance Limited and Bunge Finance North America, Inc., each as a seller, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, subject to Section 3.2(f) hereof.
“Sale Price” means, with respect to the Common Shares on any date, the closing per share sale price (or, if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average asked prices) on such date as reported on the NYSE or, if the Common Shares are not listed on the NYSE, as reported by the National Association of Securities Dealers Automated Quotation system. In the absence of such quotations, the Company and the Guarantor shall be entitled to determine, in good faith, the sales price on the basis of such quotations as it considers appropriate.
“SEC” means the U.S. Securities and Exchange Commission.
“Securities Act” means the U.S. Securities Act of 1933, as amended.
“Securities Custodian” means the custodian with respect to the Global Note (as appointed by DTC), or any successor Person thereto and shall initially be the Trustee.
“Series” means an interest in the Bunge Master Trust created and authorized pursuant to a supplement to the Pooling Agreement.
“Series 2002-1 Supplement” means the First Amended and Restated Series 2002-1 Supplement to the Pooling Agreement, dated as of September 6, 2002, among the Company, Bunge Funding, Inc., Bunge Management Services, Inc. and the Master Trust Trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, subject to Section 3.2(f) hereof.
“Series 2002-1 VFC” means the interest in the Bunge Master Trust created and authorized pursuant to a supplement to the Pooling Agreement that is designated as the “Series 2002-1 VFC Certificate” in which the Company will acquire a beneficial interest with the net proceeds of the Notes and other Permitted Indebtedness.
“Servicing Agreement” means the Second Amended and Restated Servicing Agreement, dated as of February 26, 2002 among Bunge Funding, Inc., Bunge Management Services, Inc., as the servicer, and The Bank of New York, in its capacity as the Master Trust Trustee, as the same may be amended, supplemented or otherwise modified from time to time in accordance with its terms, subject to Section 3.2(f) hereof.
“Shelf Registration Statement” has the meaning ascribed thereto in the Registration Rights Agreement.
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“Special Interest Payment Date” has the meaning ascribed to it in Section 2.13 hereof.
“Special Record Date” has the meaning ascribed to it in Section 2.13 hereof.
“Specified Purchase Date” has the meaning ascribed to it in Section 6.1(a) hereof.
“Spin-off” has the meaning ascribed to it in Section 12.8 hereof.
“Stated Maturity” means, with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision, but shall not include any contingent obligations to repay, redeem or repurchase any such principal prior to the date originally scheduled for the payment thereof.
“Subsequent Notes” has the meaning ascribed to it in the second introductory paragraph of this Indenture.
“Subsidiary” means any corporation, company, limited liability company or other business entity of which the requisite number of shares of stock or other equity ownership interests having ordinary voting power (without regard to the occurrence of any contingency) to elect a majority of the directors, managers or trustees thereof, or any partnership of which more than 50% of the partners’ equity interests (considering all partners’ equity interests as a single class) is, in each case, at the time owned or controlled, directly or indirectly, by the Guarantor, one or more of the Subsidiaries, or any combination thereof.
“Successor Guarantor” has the meaning ascribed to it in Section 4.1 hereof.
“Time of Determination” means the time and date of the earlier of (i) the determination of shareholders entitled to receive rights, warrants or options or a distribution, in each case, to which Section 12.7, 12.8 or 12.9 hereof applies and (ii) the Ex-Dividend Time.
“trading day” means a day during which trading in securities generally occurs on the NYSE or, if the Common Shares are not listed on the NYSE, on the principal U.S. securities exchange or market on which the Common Shares then are listed or, if the Common Shares are not listed on a U.S. securities exchange or market, on the National Association of Securities Dealers Automated Quotation System or, if the Common Shares are not quoted on the National Association of Securities Dealers Automated Quotation System, on the principal other exchange or market on which the Common Shares are then traded.
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, as in effect on the date of this Indenture.
“Trust Officer” means, with respect to the Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter is referred because of such person’s
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knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
“Trustee” means the party named as such in this Indenture until a successor replaces it and, thereafter, such successor.
“U.S. GAAP” means generally accepted accounting principles in the United States, as in effect from time to time.
“U.S. Government Securities” means securities that are (a) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged or (b) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such U.S. Government Securities or a specific payment of principal of or interest on any such U.S. Government Securities held by such custodian for the account of the holder of such depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Securities or the specific payment of principal of or interest on the U.S. Government Securities evidenced by such depository receipt.
“Commission” means the SEC.
“indenture securities” means the Notes.
“indenture security holder” means a Noteholder.
“indenture to be qualified” means this Indenture.
“indenture trustee” or “institutional trustee” means the Trustee.
“obligor” on the indenture securities means the Company and any other obligor on the indenture securities.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined in the Trust Indenture Act by reference to another statute or defined by SEC rule have the meanings assigned to them by such definitions.
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Initial Notes offered and sold to the Initial Purchasers, and subsequently resold to QIBs in the United States of America in reliance on Rule 144A (the “Rule 144A Note”) will be issued on the Issue Date in the form of a permanent global Note, without interest coupons, substantially in the form of Exhibit A hereto, which is hereby incorporated by reference and made a part of this Indenture, including appropriate legends as set forth in Section 2.1(c) hereof (the “Rule 144A Global Note”), deposited with the Trustee, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Notes offered, sold and resold outside the United States of America (the “Regulation S Note”) in reliance on Regulation S shall be issued in the form of a permanent global Note substantially in the form of Exhibit A hereto, including appropriate legends as set forth in Section 2.1(c) hereof (the “Regulation S Global Note”), deposited with the Trustee, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Regulation S Global Note may be represented by more than one certificate, if so required by DTC’s rules regarding the maximum principal amount to be
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represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
Initial Notes resold after an initial resale to QIBs in reliance on Rule 144A or an initial resale in reliance on Regulation S to institutional “accredited investors” (as defined in Rules 501(a)(1), (2), (3) and (7) under the Securities Act) who are not QIBs (“IAIs”) in the United States of America will be issued in the form of a permanent global Note substantially in the form of Exhibit A hereto (the “Institutional Accredited Investor Global Note”) deposited with the Trustee, as custodian for DTC, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Institutional Accredited Investor Global Note may be represented by more that one certificate, if so required by DTC’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Institutional Accredited Investor Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for DTC or its nominee, as hereinafter provided.
The Rule 144A Global Note, the Regulation S Global Note and the Institutional Accredited Investor Global Note are sometimes collectively herein referred to as the “Global Notes.”
Except as described in the succeeding two sentences, the principal of and premium, if any, and interest on the Notes shall be payable at the office or agency of the Company maintained for such purpose in The City of New York, or at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 2.3 hereof; provided, however, that, at the option of the Company, each installment of interest may be paid by check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Note Register. Payments in respect of Notes represented by a Global Note (including principal, premium and interest) will be made by wire transfer of immediately available funds to the accounts specified by DTC. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least U.S.$1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
Any Subsequent Notes shall be in the form of Exhibit A hereto.
The Notes may have notations, legends or endorsements required by law, stock exchange rule or usage, in addition to those set forth on Exhibit A hereto and in Section 2.1(c) hereof. The Company and the Trustee shall approve the forms of the Notes and any notation, endorsement or legend on them. Each Note shall be dated the date of its authentication. The terms of the Notes set forth in Exhibit A hereto are part of the terms of this Indenture and, to the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture, expressly agree to be bound by such terms.
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“THIS NOTE AND ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE, ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF AGREES, ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED NOTES, TO OFFER, SELL OR OTHERWISE TRANSFER THIS NOTE OR ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE, PRIOR TO THE DATE (THE “RESALE RESTRICTION TERMINATION DATE”) THAT IS TWO YEARS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH BUNGE LIMITED FINANCE CORP. (“THE COMPANY”) OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR HEREOF), ONLY (A) TO THE COMPANY OR BUNGE LIMITED, AS GUARANTOR, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) IF ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL ACCREDITED INVESTOR WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS ACQUIRING THE NOTE AND ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A
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TRANSACTION INVOLVING A MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF U.S.$250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO OR FOR OFFER OR SALE IN CONNECTION WITH ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) AND (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.”
“THIS NOTE AND ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS NOTE, ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
THIS LEGEND WILL BE REMOVED AFTER 40 CONSECUTIVE DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DAY ON WHICH THE NOTES OR ANY COMMON SHARES ISSUABLE UPON CONVERSION OF THIS NOTE ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) AND (B) THE DATE OF THE CLOSING OF THE ORIGINAL OFFERING.”
“UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
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INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.”
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Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Notes.
A Note shall not be valid until an authorized signatory of the Trustee manually authenticates the Note. The signature of the Trustee on a Note shall be conclusive evidence that such Note has been duly and validly authenticated and issued under this Indenture. A Note shall be dated the date of its authentication.
At any time and from time to time after the execution and delivery of this Indenture, the Trustee shall authenticate and make available for delivery: (1) Initial Notes for original issue on the Issue Date initially in an aggregate principal amount of U.S.$250,000,000; and (2) if and when issued, the Subsequent Notes, in each case upon a written order of the Company signed by two Officers or by an Officer and an Assistant Treasurer or an Assistant Secretary of the Company (the “Company Order”). Such Company Order shall specify the amount of the Notes to be authenticated and the date on which the original issue of Notes is to be authenticated and whether the Notes are to be Initial Notes or Subsequent Notes. The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture is initially limited to U.S.$250,000,000 outstanding (plus any Subsequent Notes), except for Notes
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authenticated and delivered upon registration or transfer of, or in exchange for, or in lieu of, other Notes of the same class pursuant to Section 2.6, Section 2.9, Section 2.11, Section 5.8, or Section 10.5 hereof. All Notes issued on the Issue Date and all Subsequent Notes shall be identical in all respects other than issue dates, the date from which interest accrues and any changes relating thereto. Notwithstanding anything to the contrary contained in this Indenture, the Initial Notes and any Subsequent Notes will be treated as a single class of securities under this Indenture. Without limiting the generality of the foregoing sentence, all Notes issued under this Indenture shall vote and consent together on all matters as one class and no Notes will have the right to vote or consent as a separate class on any matter.
The Trustee may appoint an agent (the “Authenticating Agent”) reasonably acceptable to the Company to authenticate the Notes. Unless limited by the terms of such appointment, any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by the Authenticating Agent. An Authenticating Agent has the same rights as a Paying Agent to deal with Holders or an Affiliate of the Company.
The Company shall enter into an appropriate agency agreement with any Registrar, Paying Agent, Conversion Agent or co-registrar not a party to this Indenture, which shall incorporate the terms of the Trust Indenture Act. The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as such and shall be entitled to appropriate compensation therefor pursuant to Section 8.7 hereof. The Company or any other Subsidiary of the Guarantor may act as Paying Agent, Registrar, Conversion Agent, co-registrar or transfer agent.
The Company initially appoints DTC to act as depository with respect to the Global Notes. The Trustee is authorized to enter into a letter of representations with DTC in the form provided to the Trustee by the Company and to act in accordance with such letter.
The Company initially appoints the Trustee as Registrar, Paying Agent and Conversion Agent for the Notes.
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(i) a transfer of a Rule 144A Note or an Institutional Accredited Investor Global Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee in the form as set forth on the reverse of the Note that it is purchasing the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the proposed transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Rule 144A Note or an Institutional Accredited Investor Global Note or a beneficial interest therein to an IAI shall be made upon receipt by the Trustee or its agent of a certificate substantially in the form set forth in Section 2.7 hereof
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from the proposed transferee and, if requested by the Company or the Trustee, the delivery of an opinion of counsel, certification and/or other information satisfactory to each of them; and
(iii) a transfer of a Rule 144A Note or an Institutional Accredited Investor Global Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Trustee or its agent of a certificate substantially in the form set forth in Section 2.8 hereof from the proposed transferee and, if requested by the Company or the Trustee, the delivery of an opinion of counsel, certification and/or other information satisfactory to each of them.
(i) a transfer of a Regulation S Note or a beneficial interest therein to a QIB shall be made upon the representation of the transferee, in the form of assignment on the reverse of the Note, that it is purchasing the Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the proposed transferee has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon its foregoing representations in order to claim the exemption from registration provided by Rule 144A;
(ii) a transfer of a Regulation S Note or a beneficial interest therein to an IAI shall be made upon receipt by the Trustee or its agent of a certificate substantially in the form set forth in Section 2.7 hereof from the proposed transferee and, if requested by the Company or the Trustee, the delivery of an opinion of counsel, certification and/or other information satisfactory to each of them; and
(iii) a transfer of a Regulation S Note or a beneficial interest therein to a Non-U.S. Person shall be made upon receipt by the Trustee or its agent of a certificate substantially in the form set forth in Section 2.8 hereof from the proposed transferee and, if requested by the Company or the Trustee, receipt by the Trustee or its agent of an opinion of counsel, certification and/or other information satisfactory to each of them.
After the expiration of the Restricted Period, interests in the Regulation S Note may be transferred without requiring certification provided for in Section 2.7 or Section 2.8 hereof, or any additional certification.
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legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act.
(i) To permit registrations of transfers and exchanges, the Company shall, subject to the other terms and conditions of this Article II, execute and the Trustee shall authenticate Definitive Notes and Global Notes at the Registrar’s or co-registrar’s request.
(ii) No service charge shall be made to a Holder for any registration of transfer or exchange, but the Company may require from a Holder payment of a sum sufficient to cover any transfer tax, assessments, or similar governmental charge payable in connection therewith (other than any such transfer taxes, assessments or similar governmental charges payable upon exchange or transfer pursuant to Section 10.5 hereof).
(iii) The Registrar or co-registrar shall not be required to register the transfer of, or exchange of, any Note for a period beginning (1) 15 days before the mailing of a notice of an offer to repurchase or redeem Notes and ending at the close of business on the day of such mailing or (2) 15 days before an interest payment date and ending on such interest payment date.
(iv) Prior to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar may deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue, and none of the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar shall be affected by notice to the contrary.
(v) Any Definitive Note delivered in exchange for an interest in a Global Note pursuant to Section 2.1(d) hereof shall, except as otherwise provided by Section 2.6(c) hereof, bear the applicable legend regarding transfer restrictions applicable to the Definitive Note set forth in Section 2.1(c) hereof.
(vi) All Notes issued upon any transfer or exchange pursuant to the terms of this Indenture shall evidence the same debt and shall be entitled to the same benefits under this Indenture as the Notes surrendered upon such transfer or exchange.
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other Person with respect to the accuracy of the records of DTC or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than DTC) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Notes shall be given or made only to or upon the order of the registered Holders (which shall be DTC or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through DTC subject to the applicable rules and procedures of DTC. The Trustee may rely and shall be fully protected in relying upon information furnished by DTC with respect to its members, participants and any beneficial owners.
In case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable or is about to be redeemed or purchased by the Company pursuant to Article III or Article IV hereof, the Company in its discretion may, instead of issuing a new Note, pay such Note.
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Upon the issuance of any new Note under this Section 2.9, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) in connection therewith.
Every new Note issued pursuant to this Section 2.9 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, the Guarantor (if applicable) and any other obligor upon the Notes, whether or not the mutilated, destroyed, lost or stolen Note 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 Notes duly issued hereunder.
The provisions of this Section 2.9 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
If a Note is replaced pursuant to Section 2.9 hereof, it ceases to be outstanding unless the Trustee and the Company receive proof satisfactory to them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent segregates and holds in trust, in accordance with this Indenture, on a Redemption Date, Specified Purchase Date, Change of Control Payment Date or maturity date money sufficient to pay all principal, premium, if any, and interest payable on that date with respect to the Notes (or portions thereof) to be redeemed, purchased or maturing, as the case may be, and the Paying Agent is not prohibited from paying such money to the Noteholders on that date pursuant to the terms of this Indenture, then on and after that date such Notes (or portions thereof) cease to be outstanding and interest on them ceases to accrue.
If a Note is converted in accordance with Article XII, then from and after the Conversion Date, such Note shall cease to be outstanding and interest, if any, shall cease to accrue on such Note.
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Any interest on any Note which is payable, but is not paid when the same becomes due and payable and such nonpayment continues for a period of 30 days shall forthwith cease to be payable to the Holder on the regular record date by virtue of having been such Holder, and such defaulted interest and (to the extent lawful) interest on such defaulted interest at the rate borne by the Notes (such defaulted interest and interest thereon herein collectively called “Defaulted Interest”) shall be paid by the Company, at its election in each case, as provided in clause (a) or (b) below:
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Subject to the foregoing provisions of this Section 2.13, each Note delivered under this Indenture upon registration of, transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
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The Company shall pay interest on overdue principal and premium, if any, at the rate specified therefor in the Notes, and it shall pay interest on overdue installments of interest at the same rate to the extent lawful.
Notwithstanding anything to the contrary contained in this Indenture, the Company may, to the extent it is required to do so by law, deduct or withhold income or other similar taxes imposed by the United States of America from principal, premium or interest payments hereunder.
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The Company may also from time to time designate one or more other offices or agencies (in or outside of The City of New York) where the Notes may be presented or surrendered for any or all such purposes and may from time to time rescind any such designation; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in The City of New York for such purposes. 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 other office or agency.
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For purposes of this Section 4.1, the sale, lease, conveyance, assignment, transfer, or other disposition of all or substantially all of the properties and assets of one or more Subsidiaries of the Guarantor, which properties and assets, if held by the Guarantor instead of such Subsidiaries, would constitute all or substantially all of the properties and assets of the Guarantor on a consolidated basis, shall be deemed to be the transfer of all or substantially all of the properties and assets of the Guarantor.
The Successor Guarantor will succeed to, and be substituted for, and may exercise every right and power of, the Guarantor under this Indenture, but, in the case of a lease of all or substantially all its assets, the Guarantor will not be released from the obligation to pay the principal of and premium, if any, and interest on the Notes.
In the event that the Guarantor consolidates with or merges or amalgamates with or into, or sells, leases or conveys all or substantially all of its assets to, another Person subject to the terms of this Section 4.1 (a “Transfer”) and the Successor Guarantor is a Person organized under the laws of a member state of the European Union, Canada, Australia or Switzerland, the Guarantor and the Successor Guarantor shall, as a condition to such Transfer, (A) enter into a
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supplemental indenture with the Trustee providing for full, unconditional and irrevocable indemnification of the Holders of the Notes and the Trustee against any tax or duty of whatever nature which is incurred or otherwise suffered by such Holders and the Trustee with respect to the Notes and which would not have been incurred or otherwise suffered in the absence of such Transfer; and (B) deliver to the Trustee, for the benefit of the Holders of the Notes, unqualified legal opinions of independent legal counsel in New York and the member state of the European Union the laws of which the successor is organized under, Canada, Australia or Switzerland, as applicable, to the effect that the Obligations of the Successor Guarantor with respect to the Guarantee are legal, valid, binding and enforceable in accordance with their terms.
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The Trustee shall promptly notify the Company in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed.
If any Note selected for partial redemption is converted in part before termination of the conversion right with respect to the portion of the Note so selected, the converted portion of such Note shall be deemed, to the fullest extent practicable, to be the portion selected for redemption. Notes which have been converted during a selection of Notes to be redeemed, may be treated by the Trustee as outstanding for the purpose of such selection.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to redemption of Notes shall relate, in the case of any Note redeemed or to be redeemed only in part, to the portion of the principal amount of such Note which has been or is to be redeemed.
All notices of redemption shall state:
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If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal and premium, if any, shall, until paid, bear interest from the Redemption Date at the rate borne by the Notes.
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In the event that the Company elects to pay the Purchase Price, in whole or in part, by delivery of Common Shares pursuant to this Section 6.1(b), the Company shall deliver to the Paying Agent on behalf of the Holders a number of Common Shares equal to the portion of the Purchase Price to be paid in Common Shares divided by 97.5% of the Market Price of the Common Shares, as adjusted to take into account any occurrence which results in an adjustment to the Conversion Price pursuant to Section 12.6, Section 12.7, Section 12.8, Section 12.9 or Section 12.10 hereof. Fractional Common Shares will not be issued upon the purchase by the Company of a Note. Instead, the Company will, at its option, either (1) pay cash based on the then-current Market Price for all fractional shares on the NYSE or other principal United States securities exchange upon which the Common Shares are then listed or, if not so listed, on Nasdaq or (2) deliver a whole Common Share in lieu of such fractional share.
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In addition, the Trustee shall have received, no later than the Specified Purchase Date, an Officers’ Certificate and an Opinion of Counsel each stating that (A) the terms of the issuance and delivery of the Common Shares are in conformity with this Indenture, (B) Common Shares to be issued by the Guarantor in payment of the Purchase Price in respect of the Notes have been duly authorized and, when issued and delivered pursuant to the terms of this Indenture in payment of the Purchase Price in respect of the Notes, will be validly issued, fully paid and non-assessable and, solely in the case of such Opinion of Counsel, to the best of such counsel’s knowledge, will be free from preemptive rights, (C) the conditions in clauses (1) through (3) above have been satisfied and (D) in the case of such Officers’ Certificate, that such Opinion of Counsel has been delivered to the Trustee. Such Officers’ Certificate shall also set forth the number of Common Shares to be issued or delivered for each $1,000 principal amount of Notes and the Sale Price of a Common Share on each trading day during the period commencing on the first trading day of the period during which the calculation set forth in Section 6.1(b) is calculated and ending on the third trading day prior to the applicable Specified Purchase Date. The Company may pay the Purchase Price, in whole or in part, by delivery of Common Shares only if the information necessary to make the calculation set forth in Section 6.1(b) is published in a daily newspaper of national circulation.
If the foregoing conditions are not satisfied with respect to a Holder prior to the close of Business on the applicable Specified Purchase Date, the Company shall pay the Purchase Price of the Notes of such Holder entirely in cash.
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(A) if Definitive Notes have been issued, the certificate number of the Note which the Holder will deliver to be purchased;
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(B) the principal amount of the Note (or portion thereof) which the Holder will deliver to be purchased (which must be in principal amounts of $1,000 or an integral multiple thereof, if less than all of the Notes are being delivered);
(C) that such Note shall be purchased by the Company as of the Specified Purchase Date pursuant to the terms and conditions specified herein; and
(D) whether, in the event that the Company elects, pursuant to the Company Notice, to pay the Purchase Price in Common Shares, in whole or in part, but the Purchase Price is ultimately paid to the Holder entirely in cash because any of the conditions to payment of the Purchase Price or portion thereof in Common Shares is not satisfied prior to the close of business on the Specified Purchase Date pursuant to Section 6.1(c), the Holder elects: (i) to withdraw the Purchase Notice as to some or all of the Notes as to which such Purchase Notice relates (stating the principal amount and certificate numbers, if any, of the Notes as to which such withdrawal shall relate), or (ii) to receive cash in respect of the entire Purchase Price for all Notes or portions of Notes subject to such Purchase Notice; provided that if the Purchase Notice states no such election, the Holder will be deemed to have made the election set forth in clause (ii) above; and
Any purchase by the Company contemplated pursuant to the provisions of this Section 6.1 shall be consummated by the delivery of the cash or Common Shares or a combination thereof to be received by the Holder promptly following the later of the Specified Purchase Date and the time of delivery of the Note.
The Paying Agent shall promptly notify the Company of the receipt by it of any Purchase Notice or written notice of withdrawal thereof.
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(A) if Definitive Notes have been issued, the certificate number of the Note which the Holder will deliver to be purchased;
(B) the principal amount of the Note (or portion thereof) which the Holder will deliver to be purchased, which must be in principal amounts of $1,000 or an integral multiple thereof, if less than all of the Notes are being delivered; and
(C) that such Note shall be purchased by the Company pursuant to the terms and conditions specified herein; and
Any purchase by the Company contemplated pursuant to the provisions of this Section 6.2 shall be consummated by the delivery of the cash to be received by the Holder promptly following the later of the Change of Control Payment Date and the time of delivery of the Note.
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39
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The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is 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.
The Company shall deliver to the Trustee, within 10 days after the occurrence thereof, written notice in the form of an Officers’ Certificate of any Default or Event of Default under clauses (4), (5), (6), (7) or (8) of this Section 7.1, which such notice shall contain the status thereof and a description of the action being taken or proposed to be taken by the Company in respect thereof.
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The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Noteholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.
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A Noteholder may not use this Indenture to prejudice the rights of another Noteholder or to obtain a preference or priority over another Noteholder.
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FIRST: to the Trustee for amounts due under Section 8.7 hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes for principal and premium, if any, and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to Noteholders pursuant to this Section 7.10. At least 15 days before such record date, the Company shall mail to each Noteholder and the Trustee a notice that states the record date, the payment date and amount to be paid.
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(a) The Trustee may conclusively rely on any document (whether in its original or facsimile form) reasonably believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document. The Trustee shall receive and retain financial reports and statements of the Company as provided herein, but shall have no duty to review or analyze such reports or statements to determine compliance under covenants or other obligations of the Company;
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acquiring such conflicting interest, (ii) apply to the Commission for permission to continue acting as Trustee or (iii) resign.
The Company agrees to notify promptly the Trustee whenever the Notes become listed on any stock exchange and of any delisting thereof.
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Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee may have separate counsel and the Company shall pay the fees and expenses of such counsel, provided that the Company shall not be required to pay such fees and expenses if it assumes the Trustee’s defense, and, in the reasonable judgment of the Trustee, there is no conflict of interest between the Company and the Trustee in connection with such defense. The Company need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Trustee through the Trustee’s own willful misconduct, negligence or bad faith.
To secure the Company’s payment obligations in this Section 8.7, the Trustee shall have a lien prior to the Notes on all money or property held or collected by the Trustee other than money or property held in trust to pay principal of and premium, if any, and interest on particular Notes. Such lien shall survive the satisfaction and discharge of this Indenture. The Trustee’s right to receive payment of any amounts due under this Section 8.7 shall not be subordinate to any other liability or Indebtedness of the Company.
The Company’s payment obligations pursuant to this Section 8.7 shall survive the discharge of this Indenture or the earlier resignation or removal of the Trustee. When the Trustee incurs expenses after the occurrence of a Default specified in Section 7.1(6) hereof with respect to the Company, the expenses are intended to constitute expenses of administration under any bankruptcy law.
If the Trustee resigns or is removed by the Company or by the Holders of a majority in principal amount of the Notes and such Holders do not reasonably promptly appoint a successor Trustee, or if a vacancy exists in the office of the Trustee for any reason (the Trustee in such event being referred to herein as the retiring Trustee), the Company shall promptly appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights, powers and duties of the Trustee under this Indenture. The successor Trustee shall mail a notice of its succession to Noteholders. The retiring Trustee shall promptly transfer all property held by it as Trustee to the successor Trustee, subject to the lien provided for in Section 8.7 hereof.
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If a successor Trustee does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee or the Holders of 10% in principal amount of the Notes may petition, at the Company’s expense, any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 8.10 hereof, any Noteholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this Section 8.8, the Company’s obligations under Section 8.7 hereof shall continue for the benefit of the retiring Trustee.
In case at the time such successor or successors by merger, conversion or consolidation to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor to the Trustee; provided that the right to adopt the certificate authentication of any predecessor Trustee or authenticate Notes in the name of any predecessor Trustee shall only apply to its successor or successors by merger, consolidation or conversion.
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accordance with a proposal included in such application on or after the date specified in such application (which date shall not be less than three Business Days after the date any officer of the Company actually receives such application, unless any such officer shall have consented in writing to any earlier date) unless prior to taking any such action (or the effective date in the case of an omission), the Trustee shall have received written instructions in response to such application specifying the action to be taken or omitted.
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Subject to any applicable abandoned property law, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment of principal of and premium, if any, or interest on the Notes that remains unclaimed for two years, and, thereafter, Noteholders entitled to the money must look to the Company for payment as general creditors.
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After an amendment under this Section 10.1 becomes effective, the Company shall mail to Noteholders a notice briefly describing such amendment. The failure to give such notice to all Noteholders at the address set forth in the Note Register, or any defect therein, shall not impair or affect the validity of an amendment under this Section 10.1.
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It shall not be necessary for the consent of the Holders under this Section 10.2 to approve the particular form of any proposed amendment, but it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 10.2 becomes effective, the Company shall mail to Noteholders a notice briefly describing such amendment. The failure to give such notice to all Noteholders, or any defect therein, shall not impair or affect the validity of an amendment under this Section 10.2.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Noteholders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Noteholders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to give such consent or to revoke any consent previously given or to take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall become valid or effective more than 120 days after such record date.
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legal, valid and binding obligation of the Company and the Guarantor, enforceable against them in accordance with its terms, subject to customary exceptions and complies with the provisions hereof (including Section 10.3 hereof).
The Guarantor waives presentation to, demand of payment from and protest to the Company of any of the Obligations and also waives notice of protest for nonpayment. The Guarantor waives notice of any default under the Notes or the Obligations. The obligations of the Guarantor hereunder shall not be affected by (a) the failure of any Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other person under this Indenture, the Notes or any other agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the terms or provisions of this Indenture, the Notes or any other agreement; (d) the release of any security held by any Holder or the Trustee for the Obligations or any of them; or (e) any change in the ownership of the Company.
The Guarantor further agrees that the Guarantee herein constitutes a guarantee of payment when due (and not a guarantee of collection) and waives any right to require that any resort be had by any Holder to any security held for payment of the Obligations.
The obligations of the Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason (other than payment of the Obligations in full), including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense of setoff, counterclaim, recoupment or termination whatsoever or by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of the Guarantor herein shall not be discharged or impaired or otherwise affected by the failure of any Holder to assert any claim or demand or to enforce any remedy under this Indenture, the Notes or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any other act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of the Guarantor or would otherwise operate as a discharge of the Guarantor as a matter of law or equity.
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The Guarantor further agrees that the Guarantee herein shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of principal and premium, if any, of or interest on any of the Obligations is rescinded or must otherwise be restored by any Holder upon the bankruptcy or reorganization of the Company or otherwise.
In furtherance of the foregoing and not in limitation of any other right which any Holder has at law or in equity against the Guarantor by virtue hereof, upon the failure of the Company to pay any of the Obligations when and as the same shall become due, whether at maturity, by acceleration, by redemption or otherwise, the Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay, or cause to be paid, in cash, to the Holders an amount equal to the sum of (i) the unpaid amount of such Obligations then due and owing and (ii) accrued and unpaid interest on such Obligations then due and owing (but only to the extent not prohibited by law).
The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in this Indenture for the purposes of the Guarantee herein, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Obligations guaranteed hereby and (y) in the event of any such declaration of acceleration of such Obligations, such Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purposes of this Guarantee.
The Guarantor also agrees to pay any and all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by the Trustee or the Holders in enforcing any rights under this Section.
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The rate at which Common Shares shall be issued by the Guarantor and delivered upon conversion (the “Conversion Rate”) shall be initially 31.1137 Common Shares for each U.S.$1,000 principal amount of Notes. The Conversion Rate shall be adjusted in certain circumstances as provided in this Article XII. The price at which Common Shares shall be issued and delivered upon conversion (the “Conversion Price”) shall at any time be equal to U.S. $1,000 divided by the then applicable Conversion Rate (and rounded to the nearest cent).
A Holder may convert a portion of the principal amount of a Note if the portion converted is in a $1,000 principal amount or an integral multiple of $1,000. Provisions of this Indenture or of the Note that apply to conversion of all of a Note also apply to conversion of a portion of a Note.
For purposes of this Article XII, “fair market value” means the fair market value, as determined in good faith by the Board of Directors of the Guarantor (except as Section 12.8 otherwise provides in the case of a Spin-off) and set forth in a certified resolution of the Board of Directors of the Guarantor filed with the Trustee.
As soon as practicable after the Conversion Date, the Company shall deliver to the Holder, through the transfer agent for the Common Shares, a certificate for, or a beneficial interest in a global certificate representing, the number of Common Shares issuable upon the conversion or exchange and cash in lieu of any fractional share determined pursuant to Section 12.3. The Company and the Guarantor shall take all necessary actions to ensure that the Person in whose name the certificate is registered is entered into the Guarantor’s share register as a shareholder of record as of the close of business on the Conversion Date, or as soon thereafter as is possible. Upon conversion by a Holder of a Note in its entirety, such person shall no longer be a Holder of such Note.
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No payment or adjustment will be made for dividends on, or other distributions with respect to, any Common Shares except as provided in this Article XII. Upon conversion of a Note, except as provided below with respect to interest payable on Notes or portions thereof converted after a Record Date, that portion of accrued and unpaid interest on the converted Notes attributable to the period from the most recent Interest Payment Date through the Conversion Date shall not be cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the Holder thereof through issuance and delivery of the Common Shares (together with the cash payment, if any, in lieu of fractional shares) for the Note being converted pursuant to the provisions hereof. The Company will not adjust the Conversion Rate to account for accrued interest, if any. If the Holder converts more than one Note at the same time, the number of Common Shares issuable upon the conversion shall be based on the total principal amount of the Notes converted.
The Notes or portions thereof surrendered for conversion during the period from the close of business on any Record Date to the opening of business on the date on which such interest is payable shall be accompanied by payment to the Company or its order, in funds acceptable to the Company, of an amount equal to the interest payable on such Interest Payment Date on the principal amount of the Notes or portions thereof being surrendered for conversion.
If the last day on which a Note may be converted is a Legal Holiday, the Note may be surrendered on the next succeeding day that is not a Legal Holiday.
Upon surrender of a Note that is converted in part, the Company shall execute, and the Trustee shall authenticate and deliver to the Holder, a new Note in an authorized denomination equal in principal amount to the unconverted portion of the Note surrendered.
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which will be due because the Common Shares are to be issued in a name other than the Holder’s name. Nothing herein shall preclude any tax withholding required by law or regulations.
All Common Shares issued and delivered upon conversion of the Notes shall be newly issued shares, shall be duly and validly issued and fully paid and nonassessable, and shall be free from preemptive rights and free of any lien or adverse claim. The Company and the Guarantor will endeavor promptly to comply with all Bermuda and U.S. federal and state securities laws regulating the offer and the issuance and delivery of Common Shares upon conversion of Notes, if any, and will list or cause to have quoted such Common Shares on each national securities exchange or in the over-the-counter market or such other market on which the Common Shares are then listed or quoted.
then the Conversion Rate in effect immediately prior to such action shall be adjusted so that the Holder of a Note thereafter converted may receive the number of Common Shares which such Holder would have owned immediately following such action if such Holder had converted the Note immediately prior to the record date for such action.
The adjustment shall become effective immediately after the record date in the case of a dividend or distribution and immediately after the effective date in the case of a subdivision, combination, consolidation and division or reclassification.
If after an adjustment a Holder of a Note upon conversion of such Note may receive shares of two or more classes of Capital Stock of the Guarantor, the Conversion Rate shall thereafter be subject to adjustment upon the occurrence of an action taken with respect to any such class of Common Shares as is contemplated by this Article XII with respect to the Common Shares, on terms comparable to those applicable to Common Shares in this Article XII.
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(O+N)
R’ = R x ---------------------
(O + (N x P)/M)
where:
R’ = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of Common Shares issued and outstanding on the record date for the distribution to which this Section 12.7 is being applied.
N = the number of additional Common Shares offered pursuant to the distribution.
P = the offering price per share of the additional Common Shares.
M = the Average Sale Price, minus, in the case of (i) a distribution to which Section 12.6(4) applies or (ii) a distribution to which Section 12.8 or 12.9 applies, for which, in each case, (x) the record date shall occur on or before the record date for the distribution to which this Section 12.7 applies and (y) the Ex-Dividend Time shall occur on or after the date of the Time of Determination for the distribution to which this Section 12.7 applies, the fair market value (on the record date for the distribution to which this Section 12.7 applies) of the:
(1) Common Shares of the Guarantor distributed in respect of each Common Share in such Section 12.6(4) distribution; or
(2) the Guarantor’s debt, securities or assets or certain rights, warrants or options to purchase securities of the Guarantor distributed in respect of each Common Share in such Section 12.8 or 12.9 distribution.
The adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive the rights, warrants or options to which this Section 12.7 applies. If all of the Common Shares subject to such rights, warrants or options have not been issued when such rights, warrants or options expire, then the Conversion Rate
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shall promptly be readjusted to the Conversion Rate which would then be in effect had the adjustment upon the issuance of such rights, warrants or options been made on the basis of the actual number of Common Shares issued upon the exercise of such rights, warrants or options.
No adjustment shall be made under this Section 12.7 if the application of the formula stated above in this Section 12.7 would result in a value of R’ that is equal to or less than the value of R.
R x M
R’ = ----------
(M - F)
where:
R’ = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of (i) a distribution to which Section 12.6(4) applies or (ii) a distribution to which Section 12.7 or 12.9 applies, for which, in each case, (x) the record date shall occur on or before the record date for the distribution to which this Section 12.8 applies and (y) the Ex-Dividend Time shall occur on or after the date of the Time of Determination for the distribution to which this Section 12.8 applies, the fair market value (on the record date for the distribution to which this Section 12.8 applies) of the:
(1) Common Shares of the Guarantor distributed in respect of each Common Share in such Section 12.6(4) distribution; or
(2) the Guarantor’s debt, securities or assets or certain rights, warrants or options to purchase securities of the Guarantor distributed in respect of each Common Share in such Section 12.7 or 12.9 distribution.
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F = the fair market value (on the record date for the distribution to which this Section 12.8 applies) of the assets, securities, rights, warrants or options to be distributed in respect of each share of Common Shares in the distribution to which this Section 12.8 is being applied (including, in the case of cash dividends or other cash distributions giving rise to an adjustment, all such cash distributed concurrently).
In the event the Guarantor distributes shares of Capital Stock of a Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market value of the Subsidiary Capital Stock so distributed relative to the market value of the Common Shares, as set forth below. The Board of Directors of the Guarantor shall determine fair market values for the purposes of this Section 12.8, except that in respect of a dividend or other distribution of shares of Capital Stock of any class or series, or similar equity interests, of or relating to a Subsidiary or other business unit of the Guarantor (a “Spin-off”), the fair market value of the securities to be distributed shall equal the average of the daily Sales Prices of those securities for the five consecutive trading days commencing on and including the sixth day of trading of those securities after the effectiveness of the Spin-off and the average of the Sales Prices shall mean the average Sales Prices for the Common Shares for the same five trading days. In the event, however, that an underwritten initial public offering of the securities in the Spin-off occurs simultaneously with the Spin-off, fair market value of the securities distributed in the Spin-off shall mean the initial public offering price of such securities and the Average Sale Price, for purposes of this sentence, shall mean the Sales Price for the Common Shares on the same trading day.
The adjustment shall become effective immediately after the record date for the determination of shareholders entitled to receive the distribution to which this Section 12.8 applies, except that an adjustment related to a Spin-off shall become effective at the earlier to occur of (i) 10 trading days after the effective date of the Spin-off and (ii) the initial public offering of the securities distributed in the Spin-off.
In the event that, with respect to any distribution to which this Section 12.8 would otherwise apply, the difference “M - F” as defined in the above formula is less than $1.00 or “F” is equal to or greater than “M”, then the adjustment provided by this Section 12.8 shall not be made and in lieu thereof the provisions of Section 12.17 shall apply to such distribution.
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Common Shares outstanding on such date, the Conversion Rate shall be adjusted, subject to the last paragraph of this Section 12.9, in accordance with the following formula:
R x M
R’ = ----------
(M - C)
where:
R’ = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of (i) a distribution to which Section 12.6(4) applies or (ii) a distribution to which Section 12.7 or 12.8 applies, for which, in each case, (x) the record date shall occur on or before the record date for the distribution to which this Section 12.9 applies and (y) the Ex-Dividend Time shall occur on or after the date of the Time of Determination for the distribution to which this Section 12.9 applies, the fair market value (on the record date for the distribution to which this Section 12.9 applies) of the:
(1) Common Shares of the Guarantor distributed in respect of each Common Share in such Section 12.6(4) distribution; or
(2) the Guarantor’s debt, securities or assets or certain rights, warrants or options to purchase securities of the Guarantor distributed in respect of each Common Share in such Section 12.7 or 12.8 distribution.
C = the amount of (1) such cash dividend or other distribution plus (2) the
aggregate amount of any other such distributions to all holders of Common Shares made exclusively in cash within the 12 months preceding the date of payment of such distribution, and in respect of which no Conversion Rate adjustment has been made, plus (3) the aggregate amount of any cash plus the fair market value of consideration payable in respect of any tender or exchange offer by the Guarantor or any Subsidiary of the Guarantor for all or any portion of the Common Shares concluded within the 12 months preceding the date of payment of such distribution, and in respect of which no Conversion Rate adjustment has been made, applicable to one Common Share.
The adjustment shall become effective immediately prior to the opening of business on the day following the date fixed for payment of such distribution.
In the event that, with respect to any distribution to which this Section 12.9 would otherwise apply, the difference “M - C” as defined in the above formula is less than $1.00 or “C”
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is equal to or greater than “M”, then the adjustment provided by this Section 12.9 shall not be made and in lieu thereof the provisions of Section 12.17 shall apply to such distribution.
F + (N x M)
R’ = R x -----------------
(O x M)
where:
R’ = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of Common Shares issued and outstanding (including any tendered or exchanged shares) at the last time tenders of exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”).
M = the Sale Price per Common Share on the trading day on the NYSE next succeeding the Expiration Time.
F = the sum of (1) the fair market value of the aggregate consideration payable to shareholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of all Common Shares validly tendered or exchanged and not withdrawn as of the Expiration Time (the shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) plus (2) any cash and the fair market value of any other consideration payable in respect of any tender or exchange offer by the Guarantor or any of its Subsidiaries for Common Shares consummated within the 12 months preceding the Expiration Time, and in respect of which no Conversion Rate adjustment has been made, plus (3) the aggregate amount of any all-cash dividends or distributions to all holders
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of Common Shares made within the 12 months preceding the Expiration Time, and in respect of which no Conversion Rate adjustment has been made.
N = the number of Common Shares (less any Purchased Shares) at the Expiration Time.
The adjustment shall become effective immediately prior to the opening of business on the day following the Expiration Time.
F + (N x M)
R’ = R x -----------------
(O x M)
where:
R’ = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of Common Shares issued and outstanding (including any tendered or exchanged shares) at the Expiration Time.
M = the Sale Price per Common Share on the trading day on the NYSE next succeeding the Expiration Time.
F = the sum of (1) the fair market value of the aggregate consideration payable to shareholders based on the acceptance (up to any maximum specified in the terms of the tender or exchange offer) of the Purchased Shares plus (2) any cash and the fair market value of any other consideration payable in respect of any tender or exchange offer by the Acquiror for Common Shares consummated within the 12 months preceding the Expiration Time,
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and in respect of which no Conversion Rate adjustment has been made, plus (3) the aggregate amount of any all-cash dividends or distributions to all holders of Common Shares made within the 12 months preceding the Expiration Time, and in respect of which no Conversion Rate adjustment has been made.
N = the number of Common Shares (less any Purchased Shares) at the Expiration Time.
The adjustment shall become effective immediately prior to the opening of business on the day following the Expiration Time.
Notwithstanding the foregoing, the adjustment set forth in this Section 12.12 shall not be made if (1) after taking into account the Purchased Shares, less than 25% of the outstanding Common Shares are owned by the Acquiror or its Affiliates, taken as a whole, or (2) as of the Expiration Time, the offering documents in connection with the tender offer or exchange offer disclose a plan or intention on the part of the Acquiror to engage in a transaction as described under Article IV hereof.
All calculations under this Article XII shall be made to the nearest cent or to the nearest 1/1,000th of a share, as the case may be.
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No adjustment need be made for a change in the par value of the Common Shares.
To the extent the Notes become convertible pursuant to this Article XII in whole or in part into cash, no adjustment need be made thereafter as to the cash. Interest will not accrue on the cash.
then the Company and the Guarantor shall, subject to all applicable law, mail to Holders and file with the Trustee and the Conversion Agent a notice stating the proposed record date for a dividend or distribution or the proposed effective date of a combination, subdivision, reclassification, consolidation, merger, amalgamation, binding share exchange, transfer, liquidation or dissolution. The Company and the Guarantor shall file and mail the notice at least 15 days before such date. Failure to file or mail the notice or any defect in it shall not affect the validity of the transaction.
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The supplemental indenture shall provide that the Holder of a Note may convert it into the kind and amount of securities, cash or other assets which such Holder would have received immediately after the consolidation, merger, amalgamation or transfer if such Holder had converted the Note immediately before the effective date of the transaction, assuming (to the extent applicable) that such Holder (i) was not a party or an Affiliate of a party to such transaction; (ii) made no election with respect thereto; and (iii) was treated alike with the plurality of non-electing Holders. The supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practical to the adjustments provided for in this Article XII. The Successor Guarantor shall mail to Noteholders a notice briefly describing the supplemental indenture.
If this Section 12.17 applies, neither Section 12.6 nor 12.7 applies.
If the Guarantor makes a distribution to all holders of its Common Shares of any of its debt, securities or assets or any rights, warrants or options to purchase securities of the Guarantor or any cash that, but for the provisions of the last paragraph of Section 12.8 or 12.9, would otherwise result in an adjustment in the Conversion Rate pursuant to the provisions of Section 12.8 or 12.9, then, from and after the record date for determining the holders of Common Shares entitled to receive the distribution, a Holder of a Note that converts such Note in accordance with the provisions of this Indenture shall upon such conversion be entitled to receive, in addition to the Common Shares into which the Note is convertible, the kind and amount of securities, cash or other assets comprising the distribution that such Holder would have received if such Holder had converted the Note immediately prior to the record date for determining the holders of Common Shares entitled to receive the distribution.
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responsible for either the Company’s or Guarantor’s failure to comply with this Article XII. Each Conversion Agent shall have the same protection under this Section 12.19 as the Trustee.
“THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF BUNGE LIMITED THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO, INCLUDING THE RELATED NOTE) OR (Y) BY ANY HOLDER THAT WAS AN “AFFILIATE” (WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO BUNGE LIMITED, (2) IF AND ONLY IF THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF BUNGE LIMITED THAT IT IS (1) A QUALIFIED
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INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT.”
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or (c) sent by telecopy if the sender on the same day sends a confirming copy of such notice by a recognized overnight delivery service (charges prepaid), addressed as follows:
If to the Company:
Bunge Limited Finance Corp.
11720 Borman Drive
St. Louis, Missouri 63146
Attention: Francis X. Marchiony
Telephone: (314) 292-6538
Telecopy: (314) 292-6530
If to the Guarantor:
Bunge Limited
50 Main Street
White Plains, New York 10606
Attention: Morris M. Kalef / Carey
Dubois
Telephone: (914) 684-3440/(914)
684-3365
Telecopy: (914) 684-3443
if to the Trustee:
The Bank of New York
Corporate Trust Administration
101 Barclay Street, 21st Floor West
New York, New York 10286
Attention: Thomas E. Tabor
Telephone: (212) 815-5381
Telecopy: (212) 815-5802/5803
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a registered Noteholder shall be mailed to the Noteholder at the Noteholder’s address as it appears on the registration books of the Registrar and shall be sufficiently given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect its sufficiency with respect to other Noteholders. If a notice or communication is sent in the manner provided above, it is duly given, whether or not the addressee receives it, except that notices to the Trustee shall be effective only upon receipt.
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respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else shall have the protection of Trust Indenture Act, Section 312(c).
In giving such Opinion of Counsel, counsel may rely as to factual matters on an Officers’ Certificate or on certificates of public officials.
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The Registrar, the Paying Agent and the Conversion Agent may make reasonable rules for their functions.
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Notwithstanding any other provision hereof, the sole remedy of any Noteholder, the Trustee or any other Person against the Company in respect of any obligation, covenant, representation, warranty or agreement of the Company under or related to this Indenture or the Notes shall be against the assets of the Company. Neither the Trustee, nor any Noteholder nor any other Person shall have any claim against the Company to the extent that such assets are insufficient to meet such obligations, covenant, representation, warranty or agreement (the difference being referred to herein as a “shortfall”) and all claims in respect of the shortfall shall be extinguished; provided, however, that the provisions of this Section 13.17 apply solely to the obligations of the Company and shall not extinguish such shortfall or otherwise restrict such Person’s rights or remedies against the Guarantor for purposes of the obligations of the Guarantor to any Person under the Guarantee.
The provisions of this Section 13.17 shall survive the termination of this Indenture and the resignation or removal of the Trustee.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed as of the date first written above.
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THE BANK OF NEW YORK, as Trustee |
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[FORM OF FACE OF INITIAL NOTE AND SUBSEQUENT NOTE]
[Depository Legend, if applicable]
[Applicable Note Restrictive Legend]
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No. [ ] |
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Principal Amount U.S.$[ ], |
as revised by the Schedule of Increases and Decreases in Global Note attached hereto
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CUSIP NO. |
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ISIN: |
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3 ¾% Convertible Notes Due 2022
Bunge Limited Finance Corp., a Delaware corporation, promises to pay to [ ], or registered assigns, the principal sum of [ ] U.S. Dollars, as revised by the Schedule of Increases and Decreases in Global Note attached hereto, on November 15, 2022.
Interest Payment Dates: May 15 and November 15
Record Dates: May 1 and November 1
Additional provisions of this Note are set forth on the reverse side hereof.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.
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BUNGE LIMITED FINANCE CORP. |
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TRUSTEE’S
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THE BANK OF NEW YORK, |
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as Trustee,
certifies that this is one of |
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By: |
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Date: , 2002 |
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A-2
[FORM OF REVERSE SIDE OF
INITIAL NOTE AND SUBSEQUENT NOTE]
3¾% Convertible Note Due 2022
1. General
Bunge Limited Finance Corp., a Delaware corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”), issued the Notes under an Indenture, dated as of November 27, 2002, among the Company, the Guarantor and the Trustee (as such Indenture may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”). The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the U.S. Trust Indenture Act of 1939 as in effect on the date of the Indenture (the “Trust Indenture Act”). Capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Noteholders are referred to the Indenture and the Trust Indenture Act for a statement of those terms.
The Notes are general unsecured and unsubordinated obligations of the Company, including (a) U.S.$250,000,000 in aggregate principal amount of Notes being offered on the Issue Date (subject to Section 2.9 of the Indenture) and (b) any Subsequent Notes. The Notes rank equally with all other unsecured and unsubordinated indebtedness of the Company. This Note is one of the [Initial] [Subsequent] Notes referred to in the Indenture.
The Company may from time to time, without the consent of existing Holders, create and issue Subsequent Notes having the same terms and conditions as the Initial Notes in all respects, except for the Issue Date, issue price and first payment of interest thereon. Subsequent Notes issued in this manner will be consolidated with and will form a single class with the previously outstanding Notes.
The Initial Notes and any Subsequent Notes will be treated as a single class of securities under the Indenture. The Indenture includes various covenants that limit the ability of the Company, among other things, to engage in any business or transaction, acquire assets or subsidiaries, incur Indebtedness or Liens or enter into any consolidations, mergers, amalgamations or sales of assets. In addition, the Indenture imposes certain limitations on consolidations, mergers, amalgamations and sales of assets of the Guarantor.
To guarantee the due and punctual payment of the principal of and premium, if any, and interest on the Notes and all other amounts payable by the Company under the Indenture and the Notes when and as the same shall be due and payable, whether at maturity, by acceleration or otherwise, according to the terms of the Notes and the Indenture, the Guarantor has unconditionally guaranteed such obligations pursuant to the terms of the Indenture. The Guarantee is an unsecured and unsubordinated obligation of the Guarantor and ranks equally with all other unsecured and unsubordinated indebtedness and obligations of the Guarantor.
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2. Interest
The Company promises to pay interest on the principal amount of this Note at the rate per annum shown above.
The Company will pay interest semi-annually on May 15 and November 15 of each year commencing May 15, 2003. Interest on the Notes will accrue from the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from November 27, 2002. The Company shall pay interest on overdue principal or premium, if any, plus interest on such interest to the extent lawful, at the rate borne by the Notes to the extent lawful. Interest will be computed on the basis of a 360-day year of twelve 30-day months.
3. Method of Payment
By at least 10:00 a.m. (New York City time) on the date on which any principal of and premium, if any, or interest on any Note is due and payable, the Company shall irrevocably deposit with the Trustee or the Paying Agent money sufficient to pay such principal, premium, if any, and/or interest. The Company will pay interest (except Defaulted Interest) to the Persons who are registered Holders of Notes at the close of business on the May 1 or November 1 next preceding the interest payment date even if Notes are cancelled, repurchased or redeemed after the record date and on or before the interest payment date. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. Except as described in the succeeding two sentences, the principal of and premium, if any, and interest on the Notes shall be payable at the office or agency of the Company maintained for such purpose in The City of New York, or at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 2.3 of the Indenture; provided, however, that, at the option of the Company, each installment of interest may be paid by check mailed to addresses of the Persons entitled thereto as such addresses shall appear on the Note Register. Payments in respect of Notes represented by a Global Note (including principal, premium, if any, and interest) will be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company. Payments in respect of Notes represented by Definitive Notes (including principal, premium, if any, and interest) held by a Holder of at least U.S.$1,000,000 aggregate principal amount of Notes represented by Definitive Notes will be made by wire transfer to a U.S. dollar account maintained by the payee with a bank in the United States if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 15 days immediately preceding the relevant due date for payment (or such other date as the Trustee may accept in its discretion).
4. Paying Agent, Conversion Agent and Registrar
Initially, The Bank of New York (the “Trustee”), will act as Trustee, Paying Agent, Conversion Agent and Registrar. The Company may appoint and change any Paying Agent, Conversion Agent, Registrar or co-registrar without notice to any Noteholder. The Company or any other Subsidiary of the Guarantor may act as Paying Agent, Registrar or co-registrar.
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5. Optional Redemption by the Company
On or after November 22, 2005, the Notes will be redeemable at the option of the Company, in whole at any time or in part from time to time, on at least 30 days but not more than 60 days’ prior notice mailed to the registered address of each Holder of Notes to be so redeemed, at the redemption prices set forth below, in each case, plus accrued and unpaid interest, if any, to the date of redemption.
If the Notes are redeemed during the period beginning on November 22, 2005 and ending on November 14, 2006, the redemption price will equal U.S.$1,015 for each U.S.$1,000 principal amount of Notes. If the Notes are redeemed during the period beginning on November 15, 2006 and ending on November 14, 2007, the redemption price will equal U.S.$1,007.50 for each U.S.$1,000 principal amount of Notes. If the Notes are redeemed at any time on or after November 15, 2007, the redemption price will equal U.S.$1,000 for each U.S.$1,000 principal amount of Notes.
In the case of any partial redemption, selection of the Notes for redemption will be made by the Trustee in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed or, if the Notes are not listed, then on a pro rata basis, by lot or by such other method as the Trustee in its sole discretion shall deem to be fair and appropriate, although no Notes of U.S.$1,000 in original principal amount or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption relating to such Note shall state the portion of the principal amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the redemption date, interest will cease to accrue on Notes or portions thereof called for redemption as long as the Company has deposited with the Paying Agent funds in satisfaction of the applicable Redemption Price pursuant to the Indenture.
6. Purchase of Notes at Option of Holders
On each of November 15, 2007, November 15, 2012 and November 15, 2017, any Holder of Notes will have the right to cause the Company to purchase all or any part of the Notes of such Holder at a price equal to 100% of their principal amount to be purchased, plus accrued and unpaid interest, if any to the date of purchase. The Company will have the option to pay the purchase price, in whole or in part, by the issuance or other delivery of Common Shares in lieu of cash. The Company will in all cases pay any accrued and unpaid interest on the Notes in cash. The Notes will be so purchased by the Company in accordance with, and subject to, the provisions of Article VI of the Indenture.
7. Purchase of Notes at Option of Holders Upon Change of Control
Upon a Change of Control on or prior to November 15, 2007, any Holder of Notes will have the right to cause the Company to purchase all or any part of the Notes of such Holder at a price equal to 100% of their principal amount to be purchased, plus accrued and unpaid interest, if any to the date of purchase. The Notes will be so purchased by the Company in accordance with, and subject to, the provisions of Article VI of the Indenture.
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8. Conversion
Holders may surrender any of their Notes for conversion into Common Shares, on the terms and subject to the conditions of the Indenture and this Note, in only the following circumstances:
(a) A Holder may surrender for conversion a Note during any calendar quarter commencing after December 31, 2002, if the Sale Price of the Common Shares for at least 20 trading days in the 30 consecutive trading day period ending on the last trading day of the immediately preceding calendar quarter (the “Measurement Date”) exceeds 120% of the applicable Conversion Price per Common Share on the Measurement Date
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(b) A Holder may surrender for conversion a Note which has been called for redemption pursuant to Paragraph 5 hereof, even if the Note would not otherwise be eligible for conversion, at any time prior to the close of business on the second Business Day immediately preceding the Redemption Date, unless the Company defaults in making the payment due on the Redemption Date, in which case the conversion right shall terminate at the close of business on the date such default is cured and such payment is made.
(c) A Holder may surrender for conversion a Note during any period after December 15, 2002, in which the long-term credit rating assigned to the Notes by any of Standard & Poor’s Ratings Group, Moody’s Investor Services, Inc. or Fitch Ratings (or any successor to these entities) is “BB”, “Ba2” or “BB”, respectively, or lower, or if any of these rating agencies no longer rates the Notes, or if any of these rating agencies suspends or withdraws the rating assigned to the Notes. Following the occurrence of any event that gives rise to or suspends a right of conversion pursuant to this clause (c), the Company shall give notice to the Holders of such event not later than 15 days after the date on which the Company is notified of any such event by the relevant rating agency.
(d) If the Guarantor (1) distributes any rights or warrants to all or substantially all holders of Common Shares entitling them to purchase Common Shares at less than the average of the Sales Prices of a Common Share for the 10 consecutive trading days ending on the trading day immediately preceding the date of declaration for such distribution or (2) distributes to all holders of Common Shares any of its debt, securities or assets or any rights, warrants or options to purchase securities of the Guarantor, which distribution has a per share value exceeding 10% of the average of the Sales Prices for each of the 10 consecutive trading days ending on the trading day immediately preceding the declaration date for such distribution, unless the Holder may participate in this distribution without conversion, the Notes may be surrendered for conversion beginning on the date the Guarantor gives notice to the Holders of such right, which shall be not less than 20 days prior to the Ex-Dividend Time for such dividend or distribution, and the Notes may be surrendered for conversion at any time thereafter until the close of business on the Business Day immediately preceding the Ex-Dividend Time or until the Guarantor announces that such distribution will not take place.
(e) In the event the Guarantor is a party to a consolidation, merger, amalgamation or sale or transfer of all or substantially all its properties and assets pursuant to which the Common Shares would be converted into cash, securities or other property, the Notes
A-6
may be surrendered for conversion at any time from and after the date which is 15 days prior to the date the Guarantor announces as the anticipated effective time for such transaction until 15 days after the date of the actual effective time of such transaction.
A Note in respect of which a Holder has delivered a Purchase Notice or Change of Control Purchase Notice exercising the option of such Holder to require the Company to purchase such Note may be converted only if such notice of exercise is withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is 31.1137 Common Shares per $1,000 principal amount of Notes, subject to adjustment in certain events described in the Indenture. A Holder that surrenders Notes for conversion will receive cash or a check, or, at the Guarantor’s option, a whole Common Share, in lieu of any fractional Common Shares.
To surrender a Note for conversion, a Holder must (1) complete and manually sign the irrevocable conversion notice substantially in the form attached as an exhibit to the Indenture (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent, (2) surrender the Note to the Conversion Agent, (3) furnish appropriate endorsements and transfer documents and (4) pay any transfer or similar tax, if required.
A Holder may convert a portion of a Note if the principal amount of such portion is $1,000 or an integral multiple of $1,000. No payment or adjustment will be made for dividends on the Common Shares except as provided in the Indenture. On conversion of a Note, the Holder will not receive any cash payment representing accrued interest with respect to the converted Notes. Instead, upon conversion the Guarantor will issue and deliver to the Holder a fixed number of Common Shares and any cash payment to account for fractional shares. Accrued interest will be deemed paid in full rather than canceled, extinguished or forfeited. Neither the Company nor the Guarantor will adjust the Conversion Rate to account for accrued interest.
The Conversion Rate will be adjusted as provided in Article XII of the Indenture. The Company or the Guarantor may increase the Conversion Rate for any period of at least 20 days, upon at least 15 days’ notice so long as the increase is irrevocable during such period.
If the Guarantor is a party to a consolidation, merger, amalgamation or sale or transfer of all or substantially all its properties and assets, or upon certain distributions described in the Indenture, then at the effective time of the transaction the right to convert a Note into Common Shares may be changed into a right to convert it into securities, cash or other assets of the Guarantor or another person.
9. Conversion Arrangement on Call for Redemption
Any Notes called for redemption, unless surrendered for conversion before the close of business on the second Business Day immediately preceding the Redemption Date, may be deemed to be purchased from the Holders of such Notes at an amount not less than the Redemption Price, by one or more investment banks or other purchasers who may agree with the Company and the Guarantor to purchase such Notes from the Holders, to convert them into Common Shares and to make payment for such Notes to the Trustee in trust for such Holders.
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10. Additional Amounts
The Guarantor will, subject to certain limitations set forth in the Indenture, pay to the Holder of any Note additional amounts as necessary so that every net payment made by the Guarantor of principal of and premium, if any, and interest on such Note, after deducting or withholding for or on account of any present or future tax, duty, fee, assessment or other governmental charge imposed on that holder by Bermuda or any other foreign jurisdiction, will not be less than the amount provided in the Note to be then due and payable. The Guarantor will not be required, however, to make any payment of additional amounts in connection with any such tax imposed by reason of any Holder having some connection with any such jurisdiction other than its participation as the Holder of a Note under the Indenture.
11. Denominations; Transfer; Exchange
The Notes are in registered form without coupons in denominations of principal amount of U.S.$1,000 and whole multiples of U.S.$1,000. A Holder may transfer or exchange Notes in accordance with the Indenture. The Registrar may require a Holder, among other things, to furnish appropriate endorsements or transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. The Registrar need not register the transfer of or exchange (i) any Notes selected for redemption (except, in the case of a Note to be redeemed in part, the portion of the Note not to be redeemed) for a period beginning 15 days before the mailing of a notice of Notes to be redeemed and ending on the date of such mailing or (ii) any Notes for a period beginning 15 days before an interest payment date and ending on such interest payment date.
12 Persons Deemed Owners
The registered Holder of this Note may be treated as the owner of it for all purposes.
13. Unclaimed Money
If money for the payment of principal or interest remains unclaimed for two years, the Trustee or Paying Agent shall pay the money back to the Company at its request unless an abandoned property law designates another Person. After any such payment, Holders entitled to the money must look only to the Company and not to the Trustee for payment.
14. Amendment, Waiver
The Indenture or the Notes may be amended with the written consent of the Holders of at least a majority in principal amount of the then outstanding Notes; provided, however, that the consent of each Noteholder affected is required to (i) reduce the amount of Notes whose Holders must consent to an amendment of the Indenture, the Notes or specified provisions of the Master Trust Transaction Documents, (ii) reduce the stated rate or extend the stated time for payment of interest on a Note, (iii) reduce the principal of or extend the Stated Maturity of a Note, (iv) reduce the Redemption Price or Purchase Price of a Note, (v) following a Change of Control, make any change in the time during which a Change of Control Offer must be made or the time at which the Change of Control Payment must be made, (vi) make any Note
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payable in money other than that stated herein, (vii) impair the right of a Holder to receive payment under the Note or institute suit for the enforcement of such payment, (viii) adversely affect the terms of the conversion right in any Note, (ix) make any change to the amendment provisions which require each Holder’s consent or the waiver provisions, or (x) release the Guarantor or modify the Guarantee.
Subject to certain exceptions set forth in the Indenture, without the consent of any Noteholder, the Company and the Trustee may amend the Indenture or the Notes to cure any ambiguity, omission, defect or inconsistency, or to comply with Article IV of the Indenture, or to provide for uncertificated Notes in addition to or in place of certificated Notes, or to add guarantees with respect to the Notes, or to secure the Notes, or to add additional covenants of the Company, the Guarantor or any Subsidiary, or surrender rights and powers conferred on the Company, the Guarantor or any Subsidiary, issue Subsequent Notes, or to comply with any request of the SEC in connection with qualifying the Indenture under the Act, to make provisions with respect to the conversion right in the event of an occurrence pursuant to Article IV of the Indenture, or to make any change that does not adversely affect the rights of any Noteholder.
Subject to certain exceptions set forth in the Indenture, any default (other than with respect to nonpayment or in respect of a provision that cannot be amended without the written consent of each Noteholder affected) or noncompliance with any provision may be waived with the written consent of the Holders of a majority in principal amount of the then outstanding Notes.
15. Defaults and Remedies
Under the Indenture, Events of Default include (1) default for 30 days in payment of interest or additional interest when due on the Notes; (2) default in payment of principal of or premium, if any, on the Notes at Stated Maturity, upon required repurchase or upon optional redemption, upon declaration or otherwise; (3) the failure for 15 days to issue and deliver Common Shares upon the due exercise of the conversion right in the Notes by a Holder thereof to convert such Notes into Common Shares; (4) the failure by the Company or the Guarantor to comply for 60 days after written notice with its other agreements contained in the Indenture or under the Notes (other than those referred to in (1), (2) or (3) above); (5) the failure of the Company, the Guarantor or any Subsidiary (a) to pay the principal of any Indebtedness or of any other material amounts under any other agreement on the scheduled or original date due, (b) to pay interest on any Indebtedness beyond any provided grace period or (c) to observe or perform any agreement or condition relating to such Indebtedness, the effect of which is to cause such Indebtedness to become due prior to its stated maturity, provided that an event described in clause (a), (b) or (c) above shall not constitute an Event of Default unless, at such time, one or more events of the type described in clauses (a), (b) or (c) shall have occurred or be continuing with respect to Indebtedness in an amount exceeding U.S.$50,000,000; (6) certain events of bankruptcy, insolvency or reorganization of the Company, the Guarantor, a Designated Obligor or any Material Subsidiary (the “bankruptcy events”); or (7) one or more judgments or decrees shall have been entered against the Company, the Guarantor or a Material Subsidiary involving in the aggregate a liability (not paid or fully covered by insurance as to which the relevant insurance company has acknowledged coverage) of (x) in the case of the Company, U.S.$50,000 or more, and (y) in the case of the Guarantor or a Material Subsidiary, U.S.$50,000,000 or more,
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and all such judgments or decrees shall not have been vacated, discharged, stayed or bonded pending appeal within 30 days from the entry thereof. However, a default under clause (4) will not constitute an Event of Default until the Trustee or the Holders of at least 25% in principal amount of the outstanding Notes notify the Company or the Guarantor, as the case may be, of the default and the Company or the Guarantor, as the case may be, does not cure such default within the time specified in clause (4) hereof after receipt of such notice.
If an Event of Default other than a bankruptcy event occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes may declare all the Notes by written notice to the Company to be due and payable immediately. If an Event of Default in connection with a bankruptcy event occurs and is continuing, the principal amount of the Notes, the premium, if any, and all accrued and unpaid interest shall be immediately due and payable without any action or other act on the part of the Trustee or the Holders.
Noteholders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes unless it receives reasonable indemnity or security. Subject to certain limitations, Holders of a majority in principal amount of the Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Noteholders notice of any continuing Default or Event of Default (except a Default or Event of Default in payment of principal or interest) if it determines that withholding notice is in their interest.
16. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee.
17. Calculations in Respect of Notes
The Guarantor will be responsible for making all calculations called for under Article XII of the Indenture. These calculations include, without limitation, determinations of the Sales Prices for the Common Shares and the Conversion Rate of the Notes. Any calculations made in good faith will be conclusive and binding on Holders of the Notes, absent manifest error. The Guarantor will be required to deliver to each of the Trustee and the Conversion Agent a schedule of its calculations and each of the Trustee and the Conversion Agent will be entitled to rely upon the accuracy of such calculations without independent verification. The Trustee will forward the Guarantor’s calculations to any Holder of the Notes upon the request of such Holder.
18. No Recourse Against Others
An incorporator, director, officer, employee, affiliate or stockholder, of each of the Company, or the Guarantor, solely by reason of this status, shall not have any liability for any obligations of the Company under the Notes, the Indenture or the Guarantee or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note,
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each Noteholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
19. No Petition
By its acquisition of this Note, each Holder hereof agrees that neither it nor the Trustee on its behalf may commence, or join with any other person in the commencement of, a bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding with respect to the Company under any applicable insolvency laws until one year and one date after the Notes and all other Indebtedness of the Company ranking equal with or junior to the Notes in right of payment, including all interest and premium thereon, if any, are paid in full.
20. Authentication
This Note shall not be valid until an authorized signatory of the Trustee (or an authenticating agent acting on its behalf) manually signs the certificate of authentication on the other side of this Note.
21 Abbreviations
Customary abbreviations may be used in the name of a Noteholder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
22. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Company has caused CUSIP numbers to be printed on the Notes and has directed the Trustee to use CUSIP numbers in notices of redemption as a convenience to Noteholders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
23. Governing Law
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
The Company will furnish to any Noteholder upon written request and without charge to the Noteholder a copy of the Indenture. Requests may be made to:
Bunge Limited Finance Corp.
11720 Borman Drive
St. Louis, Missouri 63146
Attention: Francis X. Marchiony, Treasurer
A-11
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee’s name, address and zip code)
(Insert assignee’s soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Note on the books of the Company. The agent may substitute another to act for him.
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Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Notes evidenced by this certificate occurring prior to the date that is two years after the later of the date of original issuance of such Notes and the last date, if any, on which such Notes were owned by the Company or any Affiliate of the Company, the undersigned confirms that such Notes are being:
CHECK ONE BOX BELOW:
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acquired for the undersigned’s own account, without transfer; or |
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transferred to the Company; or |
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transferred pursuant to and in compliance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”); or |
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transferred pursuant to an effective registration statement under the Securities Act; or |
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transferred pursuant to and in compliance with Regulation S under the Securities Act; or |
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transferred to an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act), that has furnished to the Trustee a signed letter containing certain representations and agreements (the form of which letter appears as Section 2.7 of the Indenture); or |
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transferred pursuant to another available exemption from the registration requirements of the Securities Act of 1933. |
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Unless one of the boxes is checked, the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any person other than the registered Holder thereof; provided, however, that if box (5), (6) or (7) is checked, the Trustee or the Company may require, prior to registering any such transfer of the Notes, in their sole discretion, such legal opinions, certifications and other information as the Trustee or the Company may reasonably request to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933, such as the exemption provided by Rule 144 under such Act.
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The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (1) OR (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act of 1933, as amended, and is aware that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration provided by Rule 144A.
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Dated: |
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[TO BE ATTACHED TO GLOBAL NOTES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
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A-14
[Date]
Bunge Limited Finance Corp.
c/o The Bank of New York
101 Barclay Street
21st Floor West
New York, New York 10286
Attention: Corporate Trust
Administration
Re: Bunge Limited Finance
Corp.
3¾% Convertible Notes Due 2022 (the
“Notes”)
Dear Sirs:
This certificate is delivered to request a transfer of U.S.$ principal amount of the 3¾% Convertible Notes Due 2022 (the “Notes”) of Bunge Limited Finance Corp. (the “Company”).
Upon transfer, the Notes would be registered in the name of the new beneficial owner as follows:
Name:
Address:
Taxpayer ID Number:
The undersigned represents and warrants to you that:
1. We are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the “Securities Act”)) purchasing for our own account or for the account of such an institutional “accredited investor” at least U.S.$250,000 principal amount of the Notes, and we are acquiring the Notes not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risk of our investment in the Notes and we invest in or purchase securities similar to the Notes in the normal course of our business. We and any accounts for which we are acting are each able to bear the economic risk of our or its investment.
2. We understand that the Notes and any Common Shares issuable upon conversion of the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer, sell or otherwise transfer such Notes or any Common Shares issuable upon conversion of the Notes prior to the date which is two years after the later of the date of original issue and the last date on
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which the Company or any affiliate of the Company was the owner of such Notes (or any predecessor thereto) (the “Resale Restriction Termination Date”) only (a) to the Company or Bunge Limited, as guarantor, or, in the case of the Common Shares to Bunge Limited, (b) pursuant to a registration statement which has been declared effective under the Securities Act, (c) in a transaction complying with the requirements of Rule 144A under the Securities Act (“Rule 144A”), to a person we reasonably believe is a qualified institutional buyer under Rule 144A (a “QIB”) that purchases for its own account or for the account of a QIB and to whom notice is given that the transfer is being made in reliance on Rule 144A, (d) pursuant to offers and sales that occur outside the United States within the meaning of Regulation S under the Securities Act, (e) to an institutional “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act that is purchasing for its own account or for the account of such an institutional “accredited investor,” in each case in a transaction involving a minimum principal amount of Notes of U.S.$250,000 or (f) pursuant to any other available exemption from the registration requirements of the Securities Act, subject in each of the foregoing cases to any requirement of law that the disposition of our property or the property of such investor account or accounts be at all times within our or their control and in compliance with any applicable state securities laws. The foregoing restrictions on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Notes is or is proposed to be made pursuant to clause (e) above prior to the Resale Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the Company and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act) that is acquiring such Notes for investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the Trustee reserve the right prior to any offer, sale or other transfer prior to the Resale Termination Date of the Notes pursuant to clauses (d), (e) or (f) above to require the delivery of an opinion of counsel, certifications and/or other information satisfactory to the Company and the Trustee.
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[Date]
Bunge Limited Finance Corp.
c/o The Bank of New York
101 Barclay Street
21st Floor West
New York, New York 10286
Attention: Corporate Trust
Administration
Re: Bunge Limited Finance
Corp.
3¾% Convertible Notes Due 2022 (the “Notes”)
Ladies and Gentlemen:
In connection with our proposed sale of U.S.$ aggregate principal amount of the Notes, we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the United States Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that:
(a) the offer of the Notes was not made to a person in the United States;
(b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any person acting on our behalf reasonably believed that the transferee was outside the United States or (ii) the transaction was executed in, on or through the facilities of a designated off-shore securities market and neither we nor any person acting on our behalf knows that the transaction has been pre-arranged with a buyer in the United States;
(c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(a)(2) or Rule 904(a)(2) of Regulation S, as applicable; and
(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act.
In addition, if the sale is made during a distribution compliance period and the provisions of Rule 903(b)(2) or Rule 904(b)(1) of Regulation S are applicable thereto, we confirm that such sale has been made in accordance with the applicable provisions of Rule 903(b)(2) or Rule 904(b)(1), as the case may be.
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Terms used in this certificate have the meanings set forth in Regulation S.
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Very truly yours, |
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[Name of Transferor] |
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Authorized Signature |
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C-2
FORM OF CONVERSION NOTICE
[NOTICE PURSUANT TO SECTION 12.2 OF THE INDENTURE]
The Bank of New York
101 Barclay Street
21st Floor West
New York, New York 10286
Attention: Corporate Trust
Administration
Re: Bunge Limited Finance Corp. 3¾% Convertible Notes Due 2022 (the “Notes”)
Reference is hereby made to the Indenture, dated as of November 27, 2002 (the “Indenture”), among Bunge Limited Finance Corp., as Issuer, Bunge Limited, as Guarantor, and The Bank of New York, as Trustee. Capitalized terms used but not defined herein shall have the meanings given to them in the Indenture.
This letter relates to the Notes specified below, which are registered in the name of the undersigned (the “Holder”). The Holder hereby irrevocably exercises its right to convert such Notes, or the portion thereof, if any, specified below, into Common Shares and, except to the extent specified or required as described below, directs that certificates representing such Common Shares, together with any check in payment for a fractional share and any Note representing any unconverted principal amount, be issued and delivered through the facilities of DTC, for credit to the account(s) of the Person(s) indicated below.
The Holder acknowledges and agrees that no Common Shares will be issued and delivered on conversion until any amount payable by the Holder on account of interest is paid, any certificates evidencing specified Notes not held in book-entry form are duly endorsed or assigned to the Company or in blank and surrendered and any taxes or other charges or documents required in connection with a transfer on conversion, and any other required items, are delivered to the Conversion Agent.
The Holder acknowledges and agrees that, notwithstanding this request for conversion, the Company may require that the Common Shares issued and delivered on conversion of the specified Notes be issued and delivered in certificated form subject to a restrictive legend, or that additional certifications be delivered on behalf of the relevant beneficial owner(s), if it determines that doing so is necessary to comply with the requirements of the Securities Act or otherwise, as provided in the Indenture.
Conversion of the specified Notes is subject to the requirements established by the Company as well as to the procedures of the Depositary, all as in effect from time to time. The specified Securities will be converted as of the close of business on the Business Day on which
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this conversion notice and all other required items have been delivered to the Conversion Agent as provided above and, upon such conversion, shall cease to accrue interest or be outstanding (subject to the Holder’s right to receive the Common Shares as provided in the Indenture). Prior to such conversion, the Holder will have no rights in the Common Shares.
Please provide the information requested below, as applicable.
1. PLEASE SPECIFY THE SECURITIES HELD AND THE PORTION THEREOF TO BE CONVERTED:
Principal amount held: U.S.$
CUSIP number(s):
Depositary (DTC) account where held:
Principal amount being converted (if less than all):
U.S.$
2. UNLESS AND TO THE EXTENT OTHERWISE SPECIFIED BELOW, all Securities (together with any unconverted Securities) will be delivered in book-entry form to the DTC account specified in Item 1 above.
3. IF OTHER ARRANGEMENTS ARE DESIRED, please (a) specify the type, number and form of securities to be delivered on conversion and the name(s) of the account holder(s) or registered owner(s), by checking the appropriate boxes and providing the information requested and (b) complete Item (4) below:
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Book-Entry |
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Certificates |
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Number of Common Shares: |
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Unconverted Notes |
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Certificates(1) |
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Principal Amount: U.S.$ |
(1) Aggregate principal amount of each certificate must equal U.S.$1,000 or any amount in excess thereof in integral multiples of U.S. $1,000.
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Registered Owner: |
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Principal Amount: U.S.$ |
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4. [TO BE COMPLETED ONLY IF UNCONVERTED NOTES OR COMMON SHARES ARE TO BE ISSUED OTHER THAN TO THE HOLDER PURSUANT TO ITEM (3) ABOVE.] The undersigned confirms that such unconverted Notes or Common Shares are being transferred:
CHECK ON BOX BELOW
(a) o to the Company or the Guarantor, or in the case of Common Shares, to the Company; or
(b) o pursuant to and in compliance with Rule 144A under the Securities Act of 1933; or
(c) o pursuant to and in compliance with Regulation S under the Securities Act of 1933; or
(d) o pursuant to an exemption from registration under the Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the transfer agent will refuse to register any of the Common Shares evidenced by this certificate in the name of any person other than the registered holder thereof; provided, however, that if box (c) or (d) is checked, the transfer agent may require, prior to registering any such transfer of the Common Shares such certifications and other information, and if box (d) is checked such legal opinions, as the Company has reasonably requested in writing, by delivery to the transfer agent of a standing letter of instruction, to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to, the registration requirements of the Securities Act of 1933.
Please sign and date this notice in the space provided below.
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Name of Holder |
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(If the Holder is a corporation, partnership or fiduciary, the title of the Person signing on behalf of the Holder must be stated.) |
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Notice: The signature(s) should be guaranteed by an eligible guarantor institution (banks, stockbrokers, savings and loan associations and credit unions with membership in an approved signature guarantee medallion program), pursuant to S.E.C. Rule 17Ad-15.
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