-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, A0I4FBk7Bq0Mpr3v/0dEvZH0sIU2vb3UkTrOKPUEvoPdrE0fsb0d5kDDVFfRr8w8 nFisiHk4OooikBl2cRDXUQ== 0000892569-98-003294.txt : 19981215 0000892569-98-003294.hdr.sgml : 19981215 ACCESSION NUMBER: 0000892569-98-003294 CONFORMED SUBMISSION TYPE: S-3/A PUBLIC DOCUMENT COUNT: 10 FILED AS OF DATE: 19981214 FILER: COMPANY DATA: COMPANY CONFORMED NAME: FIDELITY NATIONAL FINANCIAL INC /DE/ CENTRAL INDEX KEY: 0000809398 STANDARD INDUSTRIAL CLASSIFICATION: TITLE INSURANCE [6361] IRS NUMBER: 860498599 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3/A SEC ACT: SEC FILE NUMBER: 333-65837 FILM NUMBER: 98769229 BUSINESS ADDRESS: STREET 1: 17911 VON KARMAN AVE STREET 2: STE 300 CITY: IRVINE STATE: CA ZIP: 92614 BUSINESS PHONE: 9496225000 MAIL ADDRESS: STREET 1: MLISS JONES KANE STREET 2: 17911 VON KARMAN AVE STE 300 CITY: IRVINE STATE: CA ZIP: 92614 S-3/A 1 AMENDMENT #1 TO FORM S-3 1 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 14, 1998 REGISTRATION NO. 333-65837 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON. D.C. 20549 ------------------------ AMENDMENT NO. 1 TO FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ------------------------ FIDELITY NATIONAL FINANCIAL, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) DELAWARE 86-0498599 (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
17911 VON KARMAN AVENUE IRVINE, CALIFORNIA 92614 (949) 622-5000 (ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICE) M'LISS JONES KANE SENIOR VICE PRESIDENT AND GENERAL COUNSEL FIDELITY NATIONAL FINANCIAL, INC. 17911 VON KARMAN AVENUE, SUITE 300 IRVINE, CALIFORNIA 92614 (949) 622-5000 (NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE) COPIES TO: C. CRAIG CARLSON, ESQ. J. MICHAEL VAUGHN, ESQ. CHRISTOPHER D. IVEY, ESQ. STRADLING YOCCA CARLSON & RAUTH 660 NEWPORT CENTER DRIVE NEWPORT BEACH, CALIFORNIA 92660 (949) 725-4000 APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to time after this Registration Statement becomes effective, as determined by market conditions. If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ================================================================================ 2 SUBJECT TO COMPLETION, DATED DECEMBER 14, 1998 PROSPECTUS $150,000,000 FIDELITY NATIONAL FINANCIAL, INC. DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES AND COMMON STOCK ------------------------ Fidelity National Financial, Inc. may from time to time offer and sell Debt Securities, shares of Preferred Stock, Depositary Shares representing fractional interests in shares of Preferred Stock, and shares of Common Stock for an aggregate initial public offering price of up to $150,000,000. We will provide the specific terms and the initial public offering prices of these securities and the net proceeds from the sale of these securities in supplements to this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you invest. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement. ------------------------ The Common Stock is traded on the New York Stock Exchange under the symbol "FNF". Any Common Stock sold pursuant to a prospectus supplement will be listed on such exchange. ------------------------ The securities offered hereby may be sold directly through agents or to or through underwriters or dealers. See "Plan of Distribution." If any agents or underwriters are involved in the sale of any securities, their names, any applicable commissions or discounts and the nature of any underwriting arrangements will be set forth in a prospectus supplement. ------------------------ Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense. ------------------------ The information in this prospectus is not complete and may be changed. We may not sell these securities until the Registration Statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. ------------------------ The date of this prospectus is 3 ABOUT THIS PROSPECTUS This prospectus is part of a registration statement filed by Fidelity National Financial, Inc. with the SEC using a "shelf" registration process. Under this shelf process, we may sell any combination of the securities described in this prospectus, either separately or in units, in one or more offerings up to a total dollar amount of $150,000,000. This prospectus provides you with a general description of those securities. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and the applicable prospectus supplement together with the additional information described under the heading "Where You Can Find More Information." The registration statement that contains this prospectus (including the exhibits to the registration statement) contains additional information about Fidelity and the securities offered under this prospectus. That registration statement can be read at the SEC's web site or at the SEC's offices mentioned under the heading "Where You Can Find More Information." WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the Internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document we file with the SEC at its public reference facilities at 450 Fifth Street, N.W., Washington, D.C. 20549, 7 World Trade Center, Suite 1300, New York, New York 10048 and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. You can also obtain copies of the documents at prescribed rates by writing to the Public Reference Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference facilities. Our SEC filings are also available at the office of the New York Stock Exchange. For further information on obtaining copies of our public filings at the New York Stock Exchange, you should call (212) 656-5060. We "incorporate by reference" into this prospectus the information we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this Prospectus and information that we file subsequently with the SEC will automatically update this Prospectus. We incorporate by reference the documents listed below and any filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 after the initial filing of the registration statement that contains this Prospectus and prior to the time that we sell all the securities offered by this Prospectus: - - Annual Report on Form 10-K, as amended, for the year ended December 31, 1997; - - Quarterly Reports on Form 10-Q for the quarters ended March 31, 1998, June 30, 1998 and September 30, 1998 (as amended); - - Current Reports on Form 8-K dated February 26, 1998 (as amended), March 19, 1998, March 25, 1998, April 23, 1998, May 6, 1998, June 24, 1998, August 20, 1998 and October 22, 1998; and 2 4 - - The description of our Common Stock which is contained in our Registration Statement on Form 8-A filed under the Exchange Act, including any amendment or reports filed for the purpose of updating such description. The financial statements in our Annual Report on Form 10-K for the year ended December 31, 1997 have been restated to reflect our acquisition of Granite Financial, Inc. in February 1998. The restated financial statements can be found in our Current Report on Form 8-K dated June 24, 1998. You may request a copy of these filings (other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing) at no cost, by writing to or telephoning us at the following address: Corporate Secretary Fidelity National Financial, Inc. 17911 Von Karman Avenue, Suite 300 Irvine, California 92614 (949) 622-5000 You should rely only on the information incorporated by reference or set forth in this prospectus or the applicable prospectus supplement. We have not authorized anyone else to provide you with different information. We may only use this prospectus to sell securities if it is accompanied by a prospectus supplement. We are only offering these securities in states where the offer is permitted. You should not assume that the information in this prospectus or the applicable prospectus supplement is accurate as of any date other than the dates on the front of those documents. 3 5 THE COMPANY Fidelity is one of the largest national title insurance underwriters and also provides diversified real estate services. We are engaged in doing business in 49 states, the District of Columbia, Puerto Rico, the Bahamas and the Virgin Islands. Through our subsidiaries, Fidelity issues title insurance policies and performs other title-related services such as escrow, collection and trust activities, real estate information and technology services, trustee sales guarantees, credit reporting, attorney services, flood certification, real estate tax services, reconveyances, recordings, foreclosure publishing and posting services and exchange intermediary services in connection with real estate transactions. Title insurance and related services are provided through our direct operations and otherwise through independent title insurance agents who issue title policies on behalf of our underwriting subsidiaries. Title insurance is generally accepted as the most efficient means of determining title to, and the priority of interests in, real estate in nearly all parts of the United States. Today, virtually all real property mortgage lenders require their borrowers to obtain a title insurance policy at the time a mortgage loan is made or to allow the sale of loans in the secondary market. Fidelity's principal underwriting subsidiaries are Fidelity National Title Insurance Company, Fidelity National Title Insurance Company of New York, Fidelity National Title Insurance Company of Tennessee, Nations Title Insurance of New York Inc., National Title Insurance of New York Inc., and Alamo Title Insurance. Fidelity also operates through our underwritten title companies, a national network of agents and our real estate-related ancillary service companies. Additionally, through Granite Financial, Inc., the Company originates, funds, purchases, sells, securitizes and services equipment leases for a broad range of businesses. During 1996 and 1997, Fidelity expanded its platform of title and real estate transactional services and increased its market share in the commercial and agency segments of the title industry. Through our proprietary technology Fidelity offers fully integrated software to our customers in the real estate closing business, creating a competitive advantage through increased productivity and accuracy. Fidelity has long recognized the perceived volatility of the title insurance industry as it relates to interest rates and other factors affecting the real estate industry. As a result, Fidelity will continue to consider strategic opportunities in businesses that are less interest rate sensitive than the title industry. 4 6 USE OF PROCEEDS Unless the applicable prospectus supplement states otherwise, the net proceeds from the sale of the offered securities will be added to our general funds and may be used: - - to meet our working capital requirements; - - to repurchase or redeem our outstanding debt securities; - - to refinance or repay our outstanding borrowings; - - to make investments in or loans to our subsidiaries; - - to finance acquisitions; and - - for other general corporate purposes. RATIOS OF EARNINGS TO FIXED CHARGES The ratios of earnings to fixed charges of Fidelity for each of the periods indicated were as follows:
NINE MONTHS ENDED YEAR ENDED DECEMBER 31, SEPTEMBER 30, - -------------------------------- ------------- 1993 1994 1995 1996 1997 1997 1998 - ---- ---- ---- ---- ---- ----- ----- 26.2 3.0 2.1 5.2 8.0 6.9 15.1
These computations include Fidelity, and except as otherwise noted, Fidelity's subsidiaries and 50% or less owned companies. For these ratios, "earnings" is determined by adding "fixed charges" (excluding interest capitalized), income taxes, minority common stockholders' equity in net income and amortization of interest capitalized to income from continuing operations after eliminating equity in undistributed earnings and adding back losses of companies in which at least 20% but less than 50% stock is owned. For this purpose, "fixed charges" consists of (i) interest on all debt and amortization of debt discount and expense, (ii) interest capitalized, and (iii) an interest factor attributable to rentals. Fidelity's ratios of earnings to combined fixed charges and preferred stock dividends for the periods indicated above are the same as the ratios of earnings to fixed charges, because Fidelity had no shares of preferred stock outstanding during the periods indicated and currently has no such shares outstanding. 5 7 CERTAIN FINANCIAL INFORMATION (IN THOUSANDS, EXCEPT PER SHARE AMOUNTS) The following table sets forth selected financial data of Fidelity as of and for each of the years in the three-year period ended December 31, 1997 and as of and for the nine months ended September 30, 1997 and 1998. The financial information presented herein has been restated for Fidelity's merger with Granite Financial, Inc. in February 1998 as if the companies had been combined as of and for each of the periods presented. The financial information presented herein for the nine month periods ended September 30, 1997 and 1998 include data relating to Alamo Title Holding Company, which Fidelity acquired in August 1998. The following selected consolidated financial data should be read in conjunction with Fidelity's Consolidated Financial Statements and the Notes thereto incorporated by reference herein. See "Where You Can Find More Information."
NINE MONTHS ENDED YEAR ENDED DECEMBER 31, SEPTEMBER 30, ------------------------------ ------------------- 1995 1996 1997 1997 1998 -------- -------- -------- -------- -------- (UNAUDITED) STATEMENT OF EARNINGS DATA: Total revenue............................... $409,845 $642,377 $763,181 $609,856 $913,070 Total expenses.............................. 400,385 600,004 684,329 555,939 780,610 -------- -------- -------- -------- -------- Earnings before income taxes and extraordinary item....................... 9,460 42,373 78,852 53,917 132,460 Income tax expense.......................... 1,828 16,846 34,055 22,047 55,540 -------- -------- -------- -------- -------- Earnings before extraordinary item.......... 7,632 25,527 44,797 31,870 76,920 Extraordinary item.......................... (813) -- (1,700) -- -- -------- -------- -------- -------- -------- Net earnings................................ $ 6,819 $ 25,527 $ 43,097 $ 31,870 76,920 ======== ======== ======== ======== ======== PER SHARE AND OTHER DATA: Basic net earnings.......................... $ 6,819 $ 25,527 $ 43,097 $ 31,870 $ 76,920 ======== ======== ======== ======== ======== Basic earnings per share before extraordinary item....................... $ 0.50 $ 1.53 $ 2.32 $ 1.57 $ 3.06 Extraordinary item.......................... (0.05) -- (0.09) -- -- -------- -------- -------- -------- -------- Basic net earnings per share................ $ 0.45 $ 1.53 $ 2.23 $ 1.57 $ 3.06 ======== ======== ======== ======== ======== Weighted average shares outstanding, basic basis.................................... 15,131 16,647 19,272 20,325 25,139 Diluted net earnings........................ $ 6,819 $ 28,723 $ 46,239 $ 34,302 $ 78,803 ======== ======== ======== ======== ======== Diluted earnings per share before extraordinary item....................... $ 0.49 $ 1.30 $ 1.92 $ 1.30 $ 2.60 Extraordinary item.......................... (0.05) -- (0.07) -- -- -------- -------- -------- -------- -------- Diluted net earnings per share.............. $ 0.44 $ 1.30 $ 1.85 $ 1.30 $ 2.60 ======== ======== ======== ======== ======== Weighted average shares outstanding, diluted basis............................ 15,694 22,106 24,948 26,434 30,315 Dividends per share......................... $ 0.22 $ 0.24 $ 0.26 $ 0.19 $ 0.21 Earnings before income taxes and extraordinary item as a percent of total revenue.................................. 2.31% 6.60% 10.33% 8.84% 14.51% BALANCE SHEET DATA: Investments................................. $180,082 $227,674 $326,877 $317,025 $407,733 Cash and cash equivalents................... 47,431 72,364 59,855 101,068 80,295 Leases and lease securitization residual interest................................. -- 29,034 53,782 42,192 80,913 Total assets................................ 405,063 549,013 679,592 704,597 860,017 Notes payable............................... 136,047 171,525 155,795 178,804 155,566 Reserve for claim losses.................... 146,094 187,245 190,747 197,988 215,611 Stockholders' equity........................ 77,947 124,435 231,830 228,432 354,768
6 8 DESCRIPTION OF DEBT SECURITIES Fidelity may issue Debt Securities either separately, or together with, or upon the conversion of or in exchange for, other securities. The Debt Securities will be issued under an Indenture between us and the Trustee named in the applicable prospectus supplement. As used in this prospectus, "Debt Securities" means the debentures, notes, bonds and other evidences of indebtedness that we issue and the Trustee authenticates and delivers under the Indenture. The prospectus supplement will describe the specific terms of the Debt Securities offered through that prospectus supplement and any general terms outlined in this section that will not apply to those Debt Securities. We have summarized certain terms and provisions of the Indenture in this section. The summary is not complete. We have also filed the form of the Indenture as an exhibit to the registration statement. You should read the form of Indenture for additional information before you buy any Debt Securities. Capitalized terms used but not defined in this summary have the meanings specified in the Indenture. GENERAL The Debt Securities will be our unsecured obligations and will be convertible into our shares of Common Stock. The Indenture does not limit the amount of Debt Securities that we may issue and permits us to issue Debt Securities from time to time. Debt Securities issued under the Indenture will be issued as part of a series that has been established by us pursuant to the Indenture. Unless a prospectus supplement relating to Debt Securities states otherwise, the Indenture and the terms of the Debt Securities will not contain any covenants designed to afford holders of any Debt Securities protection in a highly leveraged or other transaction involving us that may adversely affect holders of the Debt Securities. The indebtedness represented by Debt Securities will be subordinated in right of payment to the prior payment in full of all Senior Debt (as defined below) of Fidelity. See "-- Subordination." In addition, because we are a holding company that conducts our operations through our subsidiaries, holders of Debt Securities will generally have a junior position to claims of creditors of our subsidiaries, including trade creditors, debtholders, secured creditors, taxing authorities, beneficiaries under title insurance policies, and guarantee holders. As of September 30, 1998, our subsidiaries had approximately $58.1 million of outstanding debt. Moreover, our ability to pay principal and interest on the Debt Securities is, to a large extent, dependent upon our receiving dividends, interest or other amounts from our subsidiaries. Certain of our principal operating subsidiaries are subject to insurance regulations that require minimum amounts of statutory surplus, which may restrict the amount of funds which are available to us from such subsidiaries, or require prior approval from the regulatory agency before those subsidiaries can pay us any extraordinary dividends. 7 9 TERMS OF DEBT SECURITIES A prospectus supplement relating to a series of Debt Securities being offered will include specific terms relating to the offering. These terms will include some or all of the following: - - the title and type of the Debt Securities; - - any limit on the total principal amount of the Debt Securities; - - the price at which the Debt Securities will be issued; - - the date or dates on which the principal of and premium, if any, on the Debt Securities will be payable; - - the maturity date of the Debt Securities; - - if the Debt Securities will bear interest, the interest rate on the Debt Securities, the date from which interest will accrue, the record and interest payment dates for the Debt Securities, the first interest payment date, and any circumstances under which we may defer interest payments; - - the terms and conditions upon which the Debt Securities will be convertible into Common Stock or other securities, including the initial conversion price and any adjustments thereto; - - the subordination terms applicable to the Debt Securities; - - any optional redemption provisions that would permit us or the Holders (as defined below) of Debt Securities to elect redemption or repayment of the Debt Securities prior to their final maturity including upon a change of control of Fidelity or other extraordinary event; - - the currency or currencies in which the Debt Securities will be denominated and payable, if other than U.S. dollars; - - any provisions that would permit us or the Holders of the Debt Securities to elect the currency or currencies in which the Debt Securities are paid; - - whether the provisions described under the heading "Defeasance" below apply to the Debt Securities; - - any changes to or additional Events of Default or covenants; - - whether the Debt Securities will be issued in whole or in part in the form of Global Securities and, if so, the Depositary for those Global Securities (a "Global Security" means a Debt Security that we issue in accordance with the Indenture to represent all or part of a series of Debt Securities); - - any special tax implications of the Debt Securities; and - - any other terms of the Debt Securities. A "Holder," with respect to a Registered Security, means the Person in whose name such Registered Security is registered in the Security Register. 8 10 PAYMENT; TRANSFER In the applicable prospectus supplement, we will designate a Place of Payment where you can receive payment of the principal of and any premium and interest on the Debt Securities or transfer the Debt Securities. Even though we will designate a Place of Payment, we may elect to pay any interest on the Debt Securities by mailing a check to the Person listed as the owner of the Debt Securities in the Security Register or by wire transfer to an account designated by that Person in writing not less than ten days before the date of the interest payment. There will be no service charge for any registration of transfer or exchange of the Debt Securities, but we may require you to pay any tax or other governmental charge payable in connection with a transfer or exchange of the Debt Securities. DENOMINATIONS Unless the prospectus supplement states otherwise, the Debt Securities will be issued only in registered form, without coupons, in denominations of $1,000 each or multiples of $1,000. ORIGINAL ISSUE DISCOUNT Debt Securities may be issued under the Indenture as Original Issue Discount Securities and sold at a substantial discount below their stated principal amount. If a Debt Security is an "Original Issue Discount Security," that means that an amount less than the principal amount of the Debt Security will be due and payable upon a declaration of acceleration of the maturity of the Debt Security pursuant to the Indenture. The applicable prospectus supplement will describe the federal income tax consequences and other special factors which should be considered prior to purchasing any Original Issue Discount Securities. CONVERSION The applicable prospectus supplement relating to a series of Debt Securities will describe the terms on which those Debt Securities are convertible into shares of Common Stock or other Securities. The applicable prospectus supplement will also specify the price at which Debt Securities are convertible, the date before any day fixed for redemption of the Debt Securities at which the conversion rights will expire, and the events or circumstances which will result in adjustments to the conversion price, and, as applicable, the formulae for determining the adjusted conversion price. Events which may result in a conversion price adjustment include: - - stock dividends, stock splits and similar changes to Fidelity's Common Stock; - - other distributions of debt as assets to holders of Common Stock; - - extraordinary cash dividends on the Common Stock; - - reclassifications of the Common Stock; and - - mergers, consolidations or sales of substantially all of Fidelity's assets in which holders of Common Stock are entitled to receive stock, other securities, or other property or assets. 9 11 The conversion price may also be subject to reduction, at Fidelity's option, in certain circumstances to be described in the applicable prospectus supplement. SUBORDINATION Under the Indenture, payment of the principal, interest and any premium on the Debt Securities will generally be subordinated and junior in right of payment to the prior payment in full of all Senior Debt. The Indenture provides that no payment or principal, interest or any premium on the Debt Securities may be made in the event: - - we fail to pay the principal, interest, any premium or any other amounts on any Senior Debt when due; or - - of any insolvency, bankruptcy or similar proceeding involving Fidelity or its property. The Indenture will not limit the amount of Senior Debt that we may incur. "Senior Debt" will be defined to include all notes or other evidences of indebtedness, including guarantees of Fidelity for money borrowed by Fidelity, not expressed to be subordinate or junior in right of payment to any other indebtedness of Fidelity. CONSOLIDATION, MERGER OR SALE The Indenture generally permits a consolidation or merger between us and another corporation. It also permits the sale or transfer by us of all or substantially all of our property and assets and the purchase by us of all or substantially all of the property and assets of another corporation. These transactions are permitted if: - - the resulting or acquiring corporation (if other than us) assumes all of our responsibilities and liabilities under the Indenture, including the payment of all amounts due on the Debt Securities and performance of the covenants in the Indenture; and - - immediately after the transaction, no Event of Default exists. We are not required by the Indenture to comply with those provisions if we sell all of our property and assets to another corporation if, immediately after the sale, that corporation is a subsidiary in which we own all of the capital stock. If we consolidate or merge with or into any other corporation or sell all or substantially all of our assets according to the terms and conditions of the Indenture, the resulting or acquiring corporation will be substituted for us in the Indenture with the same effect as if it had been an original party to the Indenture. As a result, such successor corporation may exercise our rights and powers under the Indenture, in our name or in its own name, and we will be released from all our liabilities and obligations under the Indenture and under the Debt Securities. 10 12 MODIFICATION AND WAIVER Under the Indenture, certain of our rights and obligations and certain of the rights of Holders of the Debt Securities may be modified or amended with the consent of the Holders of a majority in aggregate principal amount of the outstanding Debt Securities of each series of Debt Securities affected by the modification or amendment. The following modifications and amendments will not be effective against any Holder without its consent: - - a change in the stated maturity date of any payment of principal or interest; - - a reduction in certain payments due on the Debt Securities; - - make any change that adversely affects the rights of the holders of the Debt Securities to convert them into Common Stock; - - a change in the place of payment or currency in which any payment on the Debt Securities is payable; - - a limitation of a Holder's right to sue us for the enforcement of certain payments due on the Debt Securities; - - a reduction in the percentage of outstanding Debt Securities required to consent to a modification or amendment of the Indenture; - - a limitation of a Holder's right, if any, to repayment of Debt Securities at such Holder's option; and - - a modification of any of the foregoing requirements or a reduction in the percentage of outstanding Debt Securities required to waive compliance with certain provisions of the Indenture or to waive certain defaults under the Indenture. Under the Indenture, the Holders of a majority in aggregate principal amount of the Outstanding Debt Securities of any series of Debt Securities may, on behalf of all Holders of that series: - - waive compliance by us with certain restrictive covenants of the Indenture; and - - waive any past default under the Indenture, except: a default in the payment of the principal of or any premium or interest on any Debt Securities of that series, or a default under any provision of the Indenture which itself cannot be modified or amended without the consent of the Holders of each outstanding Debt Security of that series. EVENTS OF DEFAULT "Event of Default," when used in the Indenture with respect to any series of Debt Securities, means any of the following: - - failure to pay interest on any Debt Security of that series for 30 days after the payment is due; - - failure to pay the principal of or any premium on any Debt Security of that series when due; - - failure to perform any other covenant in the Indenture that applies to Debt Securities of that series for 90 days after we have received written notice of the failure to perform in the manner specified in the Indenture; 11 13 - - failure to make any required payment under any instrument for money borrowed and the acceleration of an amount of at least $5 million in respect thereof; - - certain events in bankruptcy, insolvency or reorganization; or - - any other Event of Default that may be specified for the Debt Securities of that series when that series is created. If an Event of Default for any series of Debt Securities occurs and continues, the Trustee or the Holders of at least 25% in aggregate principal amount of the outstanding Debt Securities of that series may declare the entire principal of all the Debt Securities of that series to be due and payable immediately. If such a declaration occurs, the Holders of a majority of the aggregate principal amount of the outstanding Debt Securities of that series can, subject to certain conditions, rescind the declaration. The prospectus supplement relating to each series of Debt Securities which are Original Issue Discount Securities will describe the particular provisions that relate to the acceleration of maturity of a portion of the principal amount of such series when an Event of Default occurs and continues. An Event of Default for a particular series of Debt Securities does not necessarily constitute an Event of Default for any other series of Debt Securities issued under the Indenture. The Indenture requires us to file an Officers' Certificate with the Trustee each year that states that certain defaults do not exist under the terms of the Indenture. The Trustee may withhold notice to the Holders of Debt Securities of any default (except defaults in the payment of principal, premium, interest or any sinking fund installment) if it considers such withholding of notice to be in the best interests of the Holders. Other than its duties in the case of a default, a Trustee is not obligated to exercise any of its rights or powers under the Indenture at the request, order or direction of any Holders, unless the Holders offer the Trustee reasonable indemnification. If reasonable indemnification is provided, then, subject to certain other rights of the Trustee, the Holders of a majority in principal amount of the outstanding Debt Securities of any series may, with respect to the Debt Securities of that series, direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee. DEFEASANCE At the time that we establish a series of Debt Securities under the Indenture, we can provide that the Debt Securities of that series are subject to the defeasance and discharge provisions of the Indenture. A defeasance provision enables us to terminate our obligation to pay the Debt Securities if we provide for payment through another source. In particular, these provisions would release us from our obligations to make payments on the Debt Securities of that series and to comply with the other covenants (except with respect to conversion provisions) if we deposit with the Trustee, in trust, sufficient money or Government Obligations (as defined below) to pay the principal, interest, any premium and any other sums due on the Debt Securities of that series on the dates such payments are due under the Indenture and the terms of the Debt Securities. As used above, "Government Obligations" mean: - - securities of the same government which issued the currency in which the series of Debt Securities are denominated and in which interest is payable; or 12 14 - - securities of government agencies backed by the full faith and credit of such government. In the event that we deposit funds in trust and discharge our obligations under a series of Debt Securities as described above, then: - - the Indenture will no longer apply to the Debt Securities of that series (except for certain obligations to compensate, reimburse and indemnify the Trustee, to register the transfer and exchange of Debt Securities, to convert Debt Securities into Common Stock, to replace lost, stolen or mutilated Debt Securities and to maintain paying agencies and the trust funds); and - - Holders of Debt Securities of that series can only look to the trust fund for payment of principal, any premium and interest on the Debt Securities of that series. Under federal income tax law, such deposit and discharge may be treated as an exchange of the related Debt Securities for an interest in the trust mentioned above. No such defeasance shall be permitted unless prior thereto, the Trustee shall have received an opinion of counsel to the effect that such action will not have any federal income tax consequences to the Holders. 13 15 DESCRIPTION OF PREFERRED STOCK Fidelity may issue Preferred Stock either separately, or together with, or upon the conversion of or in exchange for, other securities. A prospectus supplement will describe the specific terms of the series of the Preferred Stock offered through that prospectus supplement and any general terms outlined in this section that will not apply to those shares of Preferred Stock. We have summarized certain terms and provisions of the Preferred Stock in this section. The summary is not complete. We have also filed or incorporated by reference our Certificate of Incorporation, as amended, and the form of Certificate of Designation, Preferences and Rights of Preferred Stock ("Certificate of Designation") as exhibits to the registration statement. You should read our Certificate of Incorporation, as amended, and the Certificate of Designation relating to the applicable series of the Preferred Stock for additional information before you buy any Preferred Stock. We may elect to offer Depositary Shares representing a fractional interest in shares of Preferred Stock deposited with a Depositary. For information about the Depositary Shares, please see "Description of Depositary Shares" below. GENERAL Pursuant to our Certificate of Incorporation, our Board of Directors has the authority, without further stockholder action, to issue a maximum of 3,000,000 shares of Preferred Stock. As of October 15, 1998, no shares of Preferred Stock were issued or outstanding or reserved for issuance. The Board of Directors has the authority to determine or fix the following terms with respect to shares of any series of Preferred Stock: - - the number of shares and designation or title of the shares; - - dividend rights; - - whether and upon what terms the shares will be redeemable; - - the rights of the holders upon our dissolution or upon the distribution of our assets; - - whether and upon what terms the shares will have a purchase, retirement or sinking fund; - - the terms and conditions upon which the shares will be convertible into Common Stock or other securities, including the initial conversion rate and any adjustments thereto; - - the voting rights, if any, which will apply; and - - any other preferences, rights, limitations or restrictions of the series. If we purchase, redeem or convert shares of Preferred Stock, we will retire and cancel them and restore them to the status of authorized but unissued shares of Preferred Stock. Such shares will not be part of any particular series of Preferred Stock and may be reissued by us. 14 16 The Preferred Stock will have the dividend, liquidation, redemption, voting and conversion rights described in this section unless the applicable prospectus supplement provides otherwise. You should read the prospectus supplement relating to the particular series of the Preferred Stock for specific terms, including: - - the title and liquidation preference of the Preferred Stock and the number of shares offered; - - the initial public offering price at which we will issue the Preferred Stock; - - the dividend rate or rates (or method of calculation), the dividend periods, the dates on which dividends will be payable and whether the dividends will be cumulative or noncumulative and, if cumulative, the dates from which the dividends will start to cumulate; - - any redemption or sinking fund provisions; - - the conversion provisions; - - whether we have elected to offer Depositary Shares as described under "Description of Depositary Shares" below; and - - any additional dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges, limitations and restrictions. When we issue shares of Preferred Stock, they will be fully paid and nonassessable (i.e., the full purchase price for the outstanding Preferred Stock will have been paid and the holders of such shares of Preferred Stock will not be assessed any additional monies for such Preferred Stock). Unless the applicable prospectus supplement specifies otherwise: - - each series of the Preferred Stock will rank equally in all respects with the outstanding shares of each other series of the Preferred Stock; - - the Preferred Stock will have no preemptive rights to subscribe for any additional securities which we may issue in the future (i.e., the holders of Preferred Stock will have no right, as holders of Preferred Stock, to buy any portion of those issued securities); and - - Continental Stock Transfer and Trust Company will be the transfer agent and registrar for the Preferred Stock and any Depositary Shares. DIVIDENDS The holders of the Preferred Stock of each series will be entitled to receive cash dividends, if declared by our Board of Directors or its duly authorized committee, out of our assets that we can legally use to pay dividends. The prospectus supplement relating to a particular series of Preferred Stock will set forth the dividend rates and dates on which dividends will be payable. The rates may be fixed or variable or both. If the dividend rate is variable, the applicable prospectus supplement will describe the formula used for determining the dividend rate for each dividend period. We will pay dividends to the holders of record as they appear on our stock books on the record dates fixed by our Board of Directors or its duly authorized committee. The applicable prospectus supplement will also state whether the dividends on any series of the Preferred Stock are cumulative or noncumulative. If our Board of Directors does not 15 17 declare a dividend payable on a dividend payment date on any noncumulative series of Preferred Stock, then the holders of that series will not be entitled to receive a dividend for that dividend period and we will not be obligated to pay the dividend for that dividend period even if the Board declares a dividend on that series payable in the future. Our Board will not declare and pay a dividend on any of our stock ranking, as to dividends, equal with or junior to the Preferred Stock unless full dividends on the Preferred Stock have been declared and paid (or declared and sufficient money is set aside for payment). Until full dividends are paid (or declared and payment is set aside) on Preferred Stock ranking equal as to dividends, then: - - we will declare any dividends pro rata among the Preferred Stock of each series and any Preferred Stock ranking equal to the Preferred Stock as to dividends (i.e., the dividends we declare per share on each series of such Preferred Stock will bear the same relationship to each other that the full accrued dividends per share on each such series of the Preferred Stock bear to each other); - - other than such pro rata dividends, we will not declare or pay any dividends or declare or make any distributions upon any security ranking junior to or equal with the Preferred Stock as to dividends or upon liquidation (except dividends or distributions paid for with securities ranking junior to the Preferred Stock as to dividends and upon liquidation); and - - we will not redeem, purchase or otherwise acquire (or set aside money for a sinking fund for) any securities ranking junior to or equal with the Preferred Stock as to dividends or upon liquidation (except by conversion into or exchange for stock junior to the Preferred Shares as to dividends and upon liquidation). We will not owe any interest, or any money in lieu of interest, on any dividend payment(s) on any series of the Preferred Stock which may be past due. REDEMPTION A series of the Preferred Stock may be redeemable, in whole or in part, at our option, and may be subject to mandatory redemption pursuant to a sinking fund or otherwise, as described in the applicable prospectus supplement. Redeemed Preferred Stock will become authorized but unissued shares of Preferred Stock that we may issue in the future. If a series of the Preferred Stock is subject to mandatory redemption, the applicable prospectus supplement will specify the number of shares that we will redeem each year and the redemption price. If shares of Preferred Stock are redeemed, we will pay all accrued and unpaid dividends on those shares of Preferred Stock up to, but excluding, the redemption date. The prospectus supplement will also specify whether the redemption price will be paid in cash or other property. If (1) we are only permitted to pay the redemption price for a series of Preferred Stock from the proceeds of a capital stock issuance and (2) the proceeds from the issuance are insufficient or no such issuance has occurred, then the terms of that series may provide that the Preferred Stock will automatically and mandatorily be converted into such capital stock. If fewer than all of the outstanding shares of any series of the Preferred Stock are to be redeemed, our Board of Directors will determine the number of shares to be redeemed. We will redeem the shares pro rata from the holders of record in proportion to the number of shares held by them (with adjustments to avoid redemption of fractional shares). 16 18 Even though the terms of a series of Preferred Stock may permit redemption of shares of Preferred Stock in whole or in part, if any dividends, including accumulated dividends, on that series are past due: - - we will not redeem any Preferred Stock of that series unless we simultaneously redeem all outstanding shares of Preferred Stock of that series; and - - we will not purchase or otherwise acquire any Preferred Stock of that series. The prohibition discussed in the prior sentence will not prohibit us from purchasing or acquiring Preferred Stock of that series pursuant to a purchase or exchange offer if we make the offer on the same terms to all holders of that series. Unless the applicable prospectus supplement specifies otherwise, we will give notice of a redemption by mailing a notice to each record holder of the shares to be redeemed, between 30 to 60 days prior to the date fixed for redemption (unless we issue Depositary Shares representing interests in Preferred Shares, in which case we will send a notice to the Depositary between 40 to 70 days prior to the date fixed for redemption). We will mail the notices to the holders' addresses as they appear on our stock records. Each notice will state: - - the redemption date; - - the number of shares and the series of the Preferred Stock to be redeemed; - - the redemption price; - - the place or places where holders can surrender the certificates for the Preferred Stock for payment of the redemption price; - - that dividends on the shares to be redeemed will cease to accrue on the redemption date; and - - the date when the holders' conversion rights, if any, will terminate. If we redeem fewer than all shares of any series of the Preferred Stock held by any holder, we will also specify the number of shares to be redeemed from the holder in the notice. If we have given notice of the redemption and have provided the funds for the payment of the redemption price, then beginning on the redemption date: - - the dividends on the Preferred Stock called for redemption will no longer accrue; - - such shares will no longer be considered outstanding; and - - the holders will no longer have any rights as stockholders except to receive the redemption price. When the holder properly surrenders the redeemed shares, the redemption price will be paid out of the funds provided by us. If we redeem fewer than all of the shares represented by any certificate, we will issue a new certificate representing the unredeemed shares without cost to the holder. In the event that a redemption described above is deemed to be a "tender offer" within the meaning of Rule 14e-1 under the Exchange Act, we will comply with all applicable provisions of the Exchange Act. 17 19 CONVERSION The applicable prospectus supplement relating to a series of convertible Preferred Stock will describe the terms on which shares of that series are convertible into shares of Common Stock or other securities, which may include a different series of Preferred Stock. The applicable prospectus supplement will also specify the price at which the shares of Preferred Stock are convertible, the date before any day fixed for redemption of the Preferred Stock at which the conversion rights will expire, and the events or circumstances which will result in adjustments to the conversion price, and, as applicable, the formulae for determining the adjusted conversion price. Events which may result in a conversion price adjustment include: - - stock dividends, stock splits and similar changes to Fidelity's Common Stock; - - other distributions of debt as assets to holders of Common Stock; - - extraordinary cash dividends on the Common Stock; - - reclassifications of the Common Stock; and - - mergers, consolidations or sales of substantially all of Fidelity's assets in which holders of Common Stock are entitled to receive stock, other securities, or other property or assets. The conversion price may also be subject to reduction, at Fidelity's option, in certain circumstances to be described in the applicable prospectus supplement. RIGHTS UPON LIQUIDATION Unless the applicable prospectus states otherwise, if we voluntarily or involuntarily liquidate, dissolve or wind up our business, the holders of shares of each series of the Preferred Stock will be entitled to receive: - - liquidation distributions in the amount stated in the applicable prospectus supplement; and - - all accrued and unpaid dividends (whether or not earned or declared). We will pay these amounts to the holders of shares of each series of the Preferred Stock, and all amounts owing on any Preferred Stock ranking equally with such series of Preferred Stock as to distributions upon liquidation, out of our assets available for distribution to stockholders before any distribution is made to holders of any securities ranking junior to the series of Preferred Stock upon liquidation. The sale of all or substantially all of our property and assets, our merger into or consolidation with any other corporation or the merger of any other corporation into us will not be considered a dissolution, liquidation or winding up of our business. If (1) we voluntarily or involuntarily liquidate, dissolve or wind up our business and (2) the assets available for distribution to the holders of the Preferred Stock of any series and any other shares of our stock ranking equal with such series as to any such distribution are insufficient to pay all amounts to which the holders are entitled, then we will only make pro rata distributions to the holders of all shares ranking equal as to distributions upon dissolution, liquidation or winding up of our business (i.e., the distributions we pay to the holders of all shares ranking equal as to distributions upon dissolution, liquidation or 18 20 winding up of our business will bear the same relationship to each other that the full distributable amounts for which such holders are respectively entitled upon such dissolution, liquidation or winding up of our business bear to each other). After we pay the full amount of the liquidation distribution to which the holders of a series of the Preferred Stock are entitled, such holders will have no right or claim to any of our remaining assets. VOTING RIGHTS Except as described in this section or in the applicable prospectus supplement, or except as expressly required by applicable law, the holders of the Preferred Stock will not be entitled to vote. If the holders of a series of Preferred Stock are entitled to vote and the applicable prospectus supplement does not state otherwise, then each share of Preferred Stock will be entitled to one vote. As more fully described under "Description of Depositary Shares" below, if we elect to provide for the issuance of Depositary Shares representing fractional interests in shares of Preferred Stock, the holders of each Depositary Share will be entitled to a fraction of a vote. For any series of Preferred Stock having one vote per share, the voting power of the series, on matters on which holders of such series and holders of any other series of Preferred Stock are entitled to vote as a single class, will solely depend on the total number of shares in such series (not the aggregate liquidation preference or initial offering price). Unless we receive the consent of the holders of an outstanding series of Preferred Stock and the outstanding shares of all other series of Preferred Stock which (1) rank equal with such series either as to dividends or the distribution of assets upon liquidation, dissolution or winding up of our business and (2) have voting rights that are exercisable and that are similar to those of such series, we will not: - - authorize, create or issue, or increase the authorized or issued amount of, any class or series of stock ranking prior to such outstanding Preferred Stock with respect to payment of dividends or the distribution of assets upon liquidation, dissolution or winding up of our business; or - - amend, alter or repeal, whether by merger, consolidation or otherwise, the provisions of our Certificate of Incorporation or of the resolutions contained in a Certificate of Designation creating such series of the Preferred Stock so as to materially and adversely affect any right, preference, privilege or voting power of such outstanding Preferred Stock. This consent must be given by the holders of at least two-thirds of all such outstanding Preferred Stock described in the preceding sentence, voting together as a single class. We will not be required to obtain this consent with respect to the actions listed in the second bullet point above, however, if we only (1) increase the amount of the authorized Preferred Stock, (2) create and issue another series of Preferred Stock, or (3) increase the amount of authorized shares of any series of Preferred Stock, if such Preferred Stock in each case ranks equal with or junior to the Preferred Stock with respect to the payment of dividends and the distribution of assets upon liquidation, dissolution or winding up of our business. 19 21 DESCRIPTION OF DEPOSITARY SHARES Fidelity may issue Depositary Shares representing a fractional interest (to be specified in the applicable prospectus supplement) in shares of Preferred Stock. The prospectus supplement will describe the specific terms of the Depositary Shares offered through that prospectus supplement and any general terms outlined in this section that will not apply to those Depositary Shares. We have summarized certain terms and provisions of the Deposit Agreement, the Depositary Shares and the Depositary Receipts in this section. The summary is not complete. We have also filed the form of Deposit Agreement, including the form of Depositary Receipt, as an exhibit to the registration statement. You should read the forms of Deposit Agreement and Depositary Receipt relating to a series of Preferred Stock for additional information before you buy any Depositary Shares that represent Preferred Stock of such series. GENERAL We may offer fractional interests in Preferred Stock, rather than full shares of Preferred Stock. If we do, we will provide for the issuance by a Depositary (as defined below) to the public of receipts for depositary shares ("Depositary Shares"), each of which will represent a fractional interest in a share of a particular series of Preferred Stock. The stock of any series of Preferred Stock underlying the Depositary Shares will be deposited under a separate deposit agreement (the "Deposit Agreement") between us and a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50 million (the "Depositary"). We will name the Depositary in the applicable prospectus supplement. Subject to the terms of the Deposit Agreement, each owner of a Depositary Share will have a fractional interest in all the rights and preferences of the Preferred Stock underlying such Depositary Shares. Those rights include any dividend, voting, redemption, conversion and liquidation rights. The Depositary Shares will be evidenced by depositary receipts issued under the Deposit Agreement (the "Depositary Receipts"). If you purchase fractional interests in shares of the related series of Preferred Stock, you will receive Depositary Receipts as described in the applicable prospectus supplement. While the final Depositary Receipts are being prepared, we may order the Depositary to issue temporary Depositary Receipts substantially identical to the final Depositary Receipts although not in final form. The holders of the temporary Depositary Receipts will be entitled to the same rights as if they held the Depositary Receipts in final form. Holders of the temporary Depositary Receipts can exchange them for the final Depositary Receipts at our expense. If you surrender Depositary Receipts at the principal office of the Depositary (unless the related Depositary Shares have previously been called for redemption), you are entitled to receive at such office the number of shares of Preferred Stock and any money or other property represented by such Depositary Shares. We will not issue partial shares of Preferred Stock. If you deliver Depositary Receipts evidencing a number of Depositary Shares that represent more than a whole number of shares of Preferred Stock, the Depositary will issue you a new Depositary Receipt evidencing such excess number of Depositary Shares at the same time that the shares of Preferred Stock are withdrawn. Holders of Preferred Stock received in exchange for Depositary Shares will no longer be 20 22 entitled to deposit such shares under the Deposit Agreement or to receive Depositary Shares in exchange for such Preferred Stock. DIVIDENDS AND OTHER DISTRIBUTIONS The Depositary will distribute all cash dividends or other cash distributions received with respect to the Preferred Stock to the record holders of Depositary Shares representing the Preferred Stock in proportion to the number of Depositary Shares owned by the holders on the relevant record date. The Depositary will distribute only the amount that can be distributed without attributing to any holder of Depositary Shares a fraction of one cent. The balance not distributed will be added to and treated as part of the next sum received by the Depositary for distribution to record holders of Depositary Shares. If there is a distribution other than in cash, the Depositary will distribute property to the holders of Depositary Shares, unless the Depositary determines that it is not feasible to make such distribution. If this occurs, the Depositary may, with our approval, sell the property and distribute the net proceeds from the sale to the holders of Depositary Shares. The Deposit Agreement will also contain provisions relating to how any subscription or similar rights offered by us to holders of the Preferred Stock will be made available to the holders of Depositary Shares. CONVERSION AND EXCHANGE If any series of Preferred Stock underlying the Depositary Shares is subject to conversion or exchange, the applicable prospectus supplement will describe the rights or obligations of each record holder of Depositary Receipts to convert or exchange the Depositary Shares. REDEMPTION OF DEPOSITARY SHARES If the series of the Preferred Stock underlying the Depositary Shares is subject to redemption, the Depositary Shares will be redeemed from the redemption proceeds, in whole or in part, of such series of the Preferred Stock held by the Depositary. The Depositary will mail notice of redemption between 30 to 60 days prior to the date fixed for redemption to the record holders of the Depositary Shares to be redeemed at their addresses appearing in the Depositary's records. The redemption price per Depositary Share will bear the same relationship to the redemption price per share of Preferred Stock that the Depositary Share bears to the underlying Preferred Share. Whenever we redeem Preferred Stock held by the Depositary, the Depositary will redeem, as of the same redemption date, the number of Depositary Shares representing the Preferred Stock redeemed. If less than all the Depositary Shares are to be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro rata as determined by the Depositary. After the date fixed for redemption, the Depositary Shares called for redemption will no longer be outstanding. When the Depositary Shares are no longer outstanding, all rights of the holders will cease, except the right to receive money or other property that the holders of the Depositary Shares were entitled to receive upon such redemption. Such payments will be made when holders surrender their Depositary Receipts to the Depositary. 21 23 VOTING THE PREFERRED STOCK Upon receipt of notice of any meeting at which the holders of the Preferred Stock are entitled to vote, the Depositary will mail information about the meeting contained in the notice to the record holders of the Depositary Shares relating to such Preferred Stock. Each record holder of such Depositary Shares on the record date (which will be the same date as the record date for the Preferred Stock) will be entitled to instruct the Depositary as to how the Preferred Stock underlying the holder's Depositary Shares should be voted. The Depositary will try, if practical, to vote the number of Preferred Stock underlying the Depositary Shares according to the instructions received. We will agree to take all action requested by and deemed necessary by the Depositary in order to enable the Depositary to vote the Preferred Stock in that manner. The Depositary will not vote any Preferred Stock for which it does not receive specific instructions from the holders of the Depositary Shares relating to such Preferred Stock. TAXATION Owners of Depositary Shares will be treated for federal income tax purposes as if they were owners of the shares of Preferred Stock represented by the Depositary Shares. Accordingly, for federal income tax purposes they will have the income and deductions to which they would be entitled if they were holders of the Preferred Stock. In addition: - - no gain or loss will be recognized for federal income tax purposes upon the withdrawal of Preferred Stock in exchange for Depositary Shares as provided in the Deposit Agreement; - - the tax basis of each share of Preferred Stock to an exchanging owner of Depositary Shares will, upon the exchange, be the same as the aggregate tax basis of the Depositary Shares exchanged for such Preferred Stock; and - - the holding period for the Preferred Stock, in the hands of an exchanging owner of Depositary Shares who held the Depositary Shares as a capital asset at the time of the exchange, will include the period that the owner held such Depositary Shares. AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT The form of Depositary Receipt evidencing the Depositary Shares and any provision of the Deposit Agreement may be amended by agreement between us and the Depositary at any time. However, any amendment that materially and adversely alters the rights of the existing holders of Depositary Shares will not be effective unless approved by the record holders of at least a majority of the Depositary Shares then outstanding. A Deposit Agreement may be terminated by us or the Depositary only if: - - all outstanding Depositary Shares relating to the Deposit Agreement have been redeemed; or - - there has been a final distribution on the Preferred Stock of the relevant series in connection with our liquidation, dissolution or winding up of our business and the distribution has been distributed to the holders of the related Depositary Shares. 22 24 CHARGES OF DEPOSITARY We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay associated charges of the Depositary for the initial deposit of the Preferred Stock and any redemption of the Preferred Stock. Holders of Depositary Shares will pay transfer and other taxes and governmental charges and any other charges that are stated to be their responsibility in the Deposit Agreement. MISCELLANEOUS We will forward to the holders of Depositary Shares all reports and communications that we must furnish to the holders of the Preferred Stock. Neither the Depositary nor we will be liable if the Depositary is prevented or delayed by law or any circumstance beyond its control in performing its obligations under the Deposit Agreement. Our obligations and the Depositary's obligations under the Deposit Agreement will be limited to performance in good faith of duties set forth in the Deposit Agreement. Neither the Depositary nor we will be obligated to prosecute or defend any legal proceeding connected with any Depositary Shares or Preferred Stock unless satisfactory indemnity is furnished to us and/or the Depositary. We and the Depositary may rely upon written advice of counsel or accountants, or information provided by persons presenting Preferred Stock for deposit, holders of Depositary Shares or other persons believed to be competent and on documents believed to be genuine. RESIGNATION AND REMOVAL OF DEPOSITARY The Depositary may resign at any time by delivering notice to us. We may also remove the Depositary at any time. Resignations or removals will take effect upon the appointment of a successor depositary and its acceptance of the appointment. The successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50 million. 23 25 DESCRIPTION OF COMMON STOCK Fidelity may issue shares of Common Stock. A prospectus supplement will describe the specific terms of the Common Stock offered through that prospectus supplement and any general terms outlined in this section that will not apply to that Common Stock. We have summarized certain terms and provisions of the Common Stock in this section. The summary is not complete. We have also incorporated by reference our Certificate of Incorporation, as amended, and our bylaws, as amended, as exhibits to the registration statement. You should read our Certificate of Incorporation and our bylaws for additional information before you buy any Common Stock. GENERAL Stock Outstanding. As of November 30, 1998, our authorized Common Stock was 50,000,000 shares, of which 26,195,703 shares were issued and outstanding. Payment of Dividends. Holders of Common Stock may receive dividends when declared by our Board of Directors out of our funds that we can legally use to pay dividends. We may pay dividends in cash, stock or other property. In certain cases, holders of Common Stock may not receive dividends until we have satisfied our obligations to any holders of outstanding Preferred Stock. Our ability to pay dividends may also be restricted by loan agreements, regulatory restrictions, or other transactions that we enter into from time to time. Voting Rights. Holders of Common Stock have the exclusive power to vote on all matters presented to our stockholders unless Delaware law or the certificate of designation for an outstanding series of Preferred Stock gives the holders of that Preferred Stock the right to vote on certain matters. Each holder of Common Stock is entitled to one vote per share. Holders of Common Stock have no cumulative voting rights for the election of directors (i.e., a holder of a single share of Common Stock cannot cast more than one vote for each position to be filled on our Board of Directors). Rights Upon Liquidation; No Preemptive or Preferred Rights. If we voluntarily or involuntarily liquidate, dissolve or wind up our business, holders of Common Stock will receive pro rata, according to shares held by them, any remaining assets legally distributable to our stockholders after we have provided for any liquidation preference for outstanding shares of Preferred Stock. When we issue securities in the future, holders of Common Stock have no preemptive rights (i.e., the holders of Common Stock have no right, as holders of Common Stock, to buy any portion of those issued securities). Holders of Common Stock have no preferences, conversion or exchange rights. Listed on NYSE. Our outstanding shares of Common Stock are listed on the New York Stock Exchange under the symbol "FNF." Continental Stock Transfer and Trust Company serves as the transfer agent and registrar for the Common Stock. Fully Paid. The outstanding shares of Common Stock are fully paid and nonassessable (i.e., the full purchase price for the outstanding shares of Common Stock has been paid and the holders of such shares will not be assessed any additional monies for such shares). Any additional Common Stock that we may issue in the future pursuant to an offering under this prospectus or upon the conversion or exercise of other securities offered under this prospectus will also be fully paid and nonassessable. 24 26 ANTI-TAKEOVER PROVISIONS Certain provisions of our Certificate of Incorporation may make it less likely that our management would be changed or someone would acquire voting control of Fidelity without our Board's consent. These provisions may delay, deter or prevent tender offers or takeover attempts that stockholders may believe are in their best interests, including tender offers or attempts that might allow stockholders to receive premiums over the market price of their Common Stock. Fair Price Provision; Transactions With Interested Stockholders. Our Certificate of Incorporation prohibits certain business combinations between Fidelity and interested stockholders, which include direct and indirect owners of 10% or more of our voting stock unless those transactions are approved by holders of at least 66.67% of our outstanding voting stock not owned by any interested stockholders, voting together as a single class. This 66.67% approval is in addition to any approval required by law. Business combinations requiring the 66.67% approval include the following transactions, among others: - - any merger or consolidation with an interested stockholder or a corporation affiliated with an interested stockholder; - - any sale, lease, pledge, exchange, mortgage or other transfer or disposition of our assets valued at 10% or more of the fair market value of our consolidated assets to an interested stockholder or person or entity affiliated with an interested stockholder, other than in the ordinary course of business; - - the issuance, pledge or transfer by us of any of our securities, or the securities of one or more of our subsidiaries to an interested stockholder in exchange for consideration with a value of 10% or more of the fair market value of our consolidated assets, unless such person is acting as an underwriter for such securities; - - any sale, lease, pledge, exchange, mortgage or other transfer or disposition of the assets of any interested stockholder or any person or entity affiliated with an interested stockholder with a value of 10% or more of the fair market value of our consolidated assets to us or one or more of our subsidiaries, other than in the ordinary course of business; - - the adoption of any plan proposed by or on behalf of an interested stockholder or a person or entity affiliated with an interested stockholder to liquidate or dissolve Fidelity; and - - any transaction that increases the voting power or proportionate share of any class of our equity or convertible securities owned directly or indirectly by an interested stockholder or a person or entity affiliated with an interested stockholder. Stockholders do not need to approve a business combination under our Certificate of Incorporation if 66.67% of the "continuing directors" approve the business combination. Continuing directors are those directors, other than the interested stockholder or any representative or affiliate of the interested stockholder, (1) who were members of the Board of Directors before the interested stockholder involved in the business combination became an interested stockholder or (2) whose election or nomination was approved by a majority of such directors. 25 27 Stockholders also do not need to approve a business combination under our Certificate of Incorporation that meets certain conditions specified in our Certificate of Incorporation. These conditions include, among other things, the following: - - the price received by each stockholder is at least as high as the highest price paid for our shares by the interested stockholder in becoming an interested stockholder in the two years before the business combination is announced, and also is at least as high as the higher of the fair market value of our shares when the interested stockholder became an interested stockholder or when the business combination was announced; - - after the interested stockholder became an interested stockholder and prior to completion of the business combination, we have not failed to declare and pay any quarterly dividends, unless approved by 66.67% of the continuing directors; - - the interested stockholder has not acquired any additional shares of our stock after becoming an interested stockholder; - - after the interested stockholder became an interested stockholder, such person has not directly or indirectly received the benefit of any loans, advances, guarantees, pledges or other financial assistance provided by Fidelity; and - - a proxy or information statement describing the proposed business combination is mailed to all holders of our stock at least 30 days before the business combination is completed. Holders of at least 66.67% of our outstanding voting stock not owned by any interested stockholders, voting together as one class, must approve a proposal to amend or repeal, or adopt provisions inconsistent with the provisions of our Certificate of Incorporation described above unless such proposal is approved by 66.67% of the continuing directors, in which case holders of at least a majority of the outstanding voting stock entitled to vote may approve such a proposal. Preferred Stock May be Issued Without Stockholder Approval. Our Board of Directors can at any time, under our Certificate of Incorporation and without stockholder approval, issue one or more new series of Preferred Stock. In some cases, the issuance of Preferred Stock without stockholder approval could discourage or make more difficult attempts to take control of Fidelity through a merger, tender offer, proxy contest or otherwise. Preferred Stock with special voting rights or other features issued to persons favoring our management could stop a takeover by preventing the person trying to take control of Fidelity from acquiring enough voting shares necessary to take control. Classified Board of Directors. Members of our Board of Directors are divided into three classes and serve staggered three-year terms under our Certificate of Incorporation. This means that only approximately one-third of our directors are elected at each annual meeting of stockholders and that it would take two years to replace a majority of the directors unless they are removed. Under our Certificate of Incorporation, directors can be removed from office during their terms only if holders of at least 50% of our outstanding voting stock, voting together as one class, approve the removal. Holders of at least 80% of our outstanding voting stock, voting together as one class, must approve any proposal to amend or repeal, or adopt any provisions inconsistent with, this provision of our Certificate of Incorporation unless such proposal is approved by 66.67% of the members of our Board of Directors who are continuing directors according to our Certificate of Incorporation, in which case holders of at least a majority of the outstanding voting stock entitled to vote may approve such a proposal. 26 28 Restriction on Stockholder Actions by Written Consent. Our Certificate of Incorporation provides that any action required or permitted to be taken by the stockholders must be effected at a duly called annual or special meeting of stockholders and not by any consent in writing. Our Certificate of Incorporation and bylaws each provide that special meetings of the stockholders may only be called by the Board of Directors. Holders of at least 80% of our outstanding voting stock, voting together as one class, must approve any proposal to amend or repeal, or adopt any provision inconsistent with, these provisions of our Certificate of Incorporation and bylaws, unless such proposal is approved by 66.67% of the members of our Board of Directors who are continuing directors according to our Certificate of Incorporation, in which case holders of at least a majority of the outstanding voting stock entitled to vote may approve such proposal. Advance Notice Requirements for Director Nominations and Stockholder Proposals. Stockholders can nominate candidates for our Board of Directors. However, a stockholder must follow the advance notice procedures described in our bylaws. In general, a stockholder must submit a written notice of the nomination to our Corporate Secretary at least 90 days before a scheduled annual meeting of our stockholders or within 10 days after a stockholder receives notice of a special meeting. The notice must set forth such information about the stockholder making the nomination and the nominee as is specifically required in the bylaws. Stockholders can propose that business other than nominations to our Board of Directors be considered at an annual meeting of stockholders only if a stockholder follows the advance notice procedures described in our bylaws. In general, a stockholder must submit a written notice of the proposal and the stockholder's interest in the proposal at least 60 days before the date set for the annual meeting of our stockholders. Directors' Ability to Amend Bylaws. Under our bylaws, our Board of Directors can adopt, amend or repeal the bylaws, subject to limitations under Delaware law and our Certificate of Incorporation. Pursuant to our Certificate of Incorporation, a majority of our Board of Directors may not amend or repeal bylaw provisions relating to (i) the calling of special meetings of the stockholders, (ii) actions by stockholders without a meeting, (iii) agenda matters to be presented at stockholders' meetings, (iv) elections of directors and (v) indemnification of officers and directors, all of which may be amended or repealed only by the vote of at least 80% of all shares entitled to vote or by the vote of at least 66.67% of the members of our Board of Directors who are continuing directors according to our Certificate of Incorporation. Our stockholders also have the power to change or repeal our bylaws. Additional Authorized Shares of Capital Stock. Additional shares of authorized Common Stock and Preferred Stock available for issuance under our Certificate of Incorporation could be issued at such times, under such circumstances and with such terms and conditions as to impede a change in control of Fidelity. 27 29 PLAN OF DISTRIBUTION We may sell the securities offered pursuant to this prospectus through agents, through underwriters or dealers or directly to one or more purchasers. Underwriters, dealers and agents that participate in the distribution of the securities offered pursuant to this prospectus may be underwriters as defined in the Securities Act of 1933, as amended (the "Securities Act"), and any discounts or commissions received by them from us and any profit on the resale of the offered securities by them may be treated as underwriting discounts and commissions under the Securities Act. Any underwriters or agents will be identified and their compensation (including underwriting discount) will be described in the applicable prospectus supplement. The prospectus supplement will also describe other terms of the offering, including any discounts or concessions allowed or reallowed or paid to dealers and any securities exchanges on which the offered securities may be listed. The distribution of the securities offered under this prospectus may occur from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated prices. If the applicable prospectus supplement indicates, we will authorize dealers or our agents to solicit offers by certain institutions to purchase offered securities from us pursuant to contracts that provide for payment and delivery on a future date. We may have agreements with the underwriters, dealers and agents to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or to contribute with respect to payments which the underwriters, dealers or agents may be required to make as a result of those certain civil liabilities. When we issue the securities offered by this Prospectus (except for shares of Common Stock), they may be new securities without an established trading market. If we sell a security offered by this prospectus to an underwriter for public offering and sale, the underwriter may make a market for that security, but the underwriter will not be obligated to do so and could discontinue any market making without notice at any time. Therefore, we cannot give any assurances to you concerning the liquidity of any security offered by this prospectus. Underwriters and agents and their affiliates may be customers of, engage in transactions with, or perform services for us or our subsidiaries in the ordinary course of their businesses. LEGAL OPINIONS The validity of the securities offered by this prospectus and certain legal matters relating thereto will be passed upon for Fidelity by Stradling Yocca Carlson & Rauth, a Professional Corporation, Newport Beach, California and for the underwriters by O'Melveny and Myers LLP, Los Angeles, California. 28 30 EXPERTS The Consolidated Financial Statements of Fidelity as of December 31, 1997 and 1996, and for each of the years in the three year period ended December 31, 1997, have been incorporated by reference herein and in the Registration Statement in reliance upon the report of KPMG Peat Marwick LLP, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. The Consolidated Financial Statements of Granite Financial, Inc. as of June 30, 1997, and for each of the years in the two year period ended June 30, 1997, have been incorporated by reference herein and in the Registration Statement in reliance upon the report of Ehrhardt Keefe Steiner & Hottman PC, independent certified public accountants, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing. 29 31 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- DECEMBER , 1998 [FIDELITY NATIONAL LOGO] FIDELITY NATIONAL FINANCIAL, INC. $150,000,000 DEBT SECURITIES, PREFERRED STOCK, DEPOSITARY SHARES OR COMMON STOCK ---------------------------------- PROSPECTUS ---------------------------------- - -------------------------------------------------------------------------------- We have not authorized any dealer, salesperson or other person to give you written information other than this prospectus or to make representations as to matters not stated in this prospectus. You must not rely on unauthorized information. This prospectus is not an offer to sell these securities or our solicitation of your offer to buy the securities in any jurisdiction where that would not be permitted or legal. Neither the delivery of this prospectus nor any sales made hereunder after the date of this prospectus shall create an implication that the information contained herein or the affairs of the company have not changed since the date hereof. - -------------------------------------------------------------------------------- 32 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION Securities and Exchange Commission Fee............... $ 44,250 Accounting Fees and Expenses......................... $ 75,000* Legal Fees and Expenses.............................. $100,000* Printing Expenses.................................... $125,000* Miscellaneous Expenses............................... $ 55,750* -------- Total...................................... $400,000 ========
- ------------------------- * Estimate. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS The Registrant's Certificate of Incorporation limits, to the maximum extent permitted by Delaware law, the personal liability of directors for monetary damages for breach of their fiduciary duties as a director. The Registrant's Bylaws provide that the Registrant shall indemnify its officers and directors and may indemnify its employees and other agents to the fullest extent permitted by Delaware law. Section 145 of the Delaware General Corporation Law provides that a corporation may indemnify any person made a party to an action (other than an action by or in the right of the corporation) by reason of the fact that he or she was a director, officer, employee or agent of the corporation or was serving at the request of the corporation against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement actually and reasonably incurred by him or her in connection with such action if he or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed to, the best interests of the corporation and, with respect to any criminal action (other than an action by or in the right of the corporation), has no reasonable cause to believe his or her conduct was unlawful. The directors and officers of the Company are covered by insurance policies indemnifying against certain liabilities, including certain liabilities arising under the Securities Act, which might be incurred by them in such capacities and against which they cannot be indemnified by the Company. ITEM 16. EXHIBITS The following exhibits are filed as part of this Registration Statement:
EXHIBIT NUMBER DESCRIPTION ------- ----------- 1.1 Form of Underwriting Agreement for Debt Securities* 1.2 Form of Underwriting Agreement for Common Stock* 1.3 Form of Underwriting Agreement for Preferred Stock* 1.4 Form of Underwriting Agreement for Depositary Shares* 3.1 Form of Restated Certificate of Incorporation of the Registrant (to be filed with the Delaware Secretary of State)
II-1 33
EXHIBIT NUMBER DESCRIPTION ------- ----------- 3.2 Bylaws of the Registrant, as amended to date 4.1 Form of Indenture for Debt Securities 4.2 Form of Certificate of Designations of Preferred Stock 4.3 Form of Deposit Agreement with respect to the Depositary Shares 5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation 12.1 Computations of Ratio of Earnings to Fixed Charges 23.1 Consent of KPMG Peat Marwick LLP 23.2 Consent of Ehrhardt Keefe Steiner & Hottman PC 23.3 Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in Exhibit 5.1) 24.1 Powers of Attorney** 25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of as Trustee for the Debt Securities*
- ------------------------- * To be filed by amendment or as an exhibit to a Current Report on Form 8-K to be filed by the Company in connection with a specific offering pursuant to Item 601 of Regulation S-K under the Securities Act. ** Previously filed. ITEM 17. UNDERTAKINGS (a) The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is II-2 34 contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. (d) The undersigned registrant hereby undertakes that: (1) For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective. (2) For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (e) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act ("Act") in accordance with the rules and regulations prescribed by the Commission under Section 305(b)(2) of the Act. II-3 35 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, Fidelity National Financial, Inc. certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Amendment No. 1 to the registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Irvine, State of California, on the 14th day of December, 1998. FIDELITY NATIONAL FINANCIAL, INC. By: /s/ WILLIAM P. FOLEY, II ----------------------------------------- William P. Foley, II Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE --------- ----- ---- /s/ WILLIAM P. FOLEY, II Chairman of the Board December 14, 1998 - ------------------------------------------ and Chief Executive William P. Foley, II Officer (Principal Executive Officer) /s/ FRANK P. WILLEY President and December 14, 1998 - ------------------------------------------ Director Frank P. Willey /s/ ALLEN D. MEADOWS Executive Vice December 14, 1998 - ------------------------------------------ President and Chief Allen D. Meadows Financial Officer (Principal Financial Officer and Accounting Officer) * Director December 14, 1998 - ------------------------------------------ William A. Imparato * Director December 14, 1998 - ------------------------------------------ Donald M. Koll Director December , 1998 - ------------------------------------------ Daniel D. Lane * Director December 14, 1998 - ------------------------------------------ General William Lyon
II-4 36
SIGNATURE TITLE DATE --------- ----- ---- * Director December 14, 1998 - ------------------------------------------ J. Thomas Talbot * Director December 14, 1998 - ------------------------------------------ Cary H. Thompson Director December , 1998 - ------------------------------------------ William W. Wehner
*By: /s/ WILLIAM P. FOLEY, II ------------------------------------------------ William P. Foley, II, Attorney-in-Fact II-5 37 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION - ------- ----------- 1.1 Form of Underwriting Agreement for Debt Securities * 1.2 Form of Underwriting Agreement for Common Stock * 1.3 Form of Underwriting Agreement for Preferred Stock* 1.4 Form of Underwriting Agreement for Depositary Shares* 3.1 Form of Restated Certificate of Incorporation of the Registrant (to be filed with the Delaware Secretary of State) 3.2 Bylaws of the Registrant, as amended to date 4.1 Form of Indenture for Debt Securities 4.2 Form of Certificate of Designations of Preferred Stock 4.3 Form of Deposit Agreement with respect to the Depositary Shares 5.1 Opinion of Stradling Yocca Carlson & Rauth, a Professional Corporation 12.1 Computations of Ratio of Earnings to Fixed Charges 23.1 Consent of KPMG Peat Marwick LLP 23.2 Consent of Ehrhardt Keefe Steiner & Hottman PC 23.3 Consent of Stradling Yocca Carlson & Rauth, a Professional Corporation (included in Exhibit 5.1) 24.1 Powers of Attorney** 25.1 Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939, as amended, of as trustee for the Debt Securities*
- ------------------------- * To be filed by amendment or as an exhibit to a Current Report on Form 8-K to be filed by the Company in connection with a specific offering pursuant to Item 601 of Regulation S-K of the Securities Act. ** Previously filed. EX-3.1 2 FORM OF RESTATED CERTIFICATE OF INCORPORATION 1 EXHIBIT 3.1 RESTATED CERTIFICATE OF INCORPORATION OF FIDELITY NATIONAL FINANCIAL, INC. FIDELITY NATIONAL FINANCIAL, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the "Corporation"), does hereby certify as follows: 1. The present name of the Corporation is Fidelity National Financial, Inc. The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on December 29, 1986. 2. This Restated Certificate of Incorporation was duly adopted in accordance with Section 245 of the Delaware General Corporation Law. 3. This Restated Certificate of Incorporation only restates and integrates and does not further amend the provisions of the Corporation's Certificate of Incorporation as heretofore amended or supplemented, and there is no discrepancy between those provisions and the provisions of the restated Certificate of Incorporation, other than omissions permitted by Section 245(c) of the Delaware General Corporation Law. 4. The Certificate of Incorporation of the Corporation, as heretofore amended or supplemented, is hereby restated and integrated to read in its entirety as follows: "RESTATED CERTIFICATE OF INCORPORATION OF FIDELITY NATIONAL FINANCIAL, INC. "FIRST: The name of the corporation is Fidelity National Financial, Inc. SECOND: The address of the registered office of the corporation in the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the city of Wilmington, County of New Castle. The name of its registered agent at that address is The Corporation Trust Company THIRD: The purpose of the corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of Delaware. FOURTH: (a) General. The aggregate number of shares which the Corporation is authorized to issue is 53,000,000 shares, of which 3,000,000 shall be shares of preferred stock, $.0001 par value per share (the "Preferred Stock") and 50,000,000 shall be shares of common stock, $.0001 par value per share (the "Common Stock"). 2 (b) Preferred Stock. The Board of Directors is authorized, subject to limitations prescribed by law and the provisions of this Article FOURTH, to provide for the issuance of the shares of the Preferred Stock in series, and by filing a certificate pursuant to the applicable law of the State of Delaware, to establish from time to time the number of shares to be included in each such series, and to fix the designation, powers, preferences and rights of the shares of each such series and the qualifications, limitations or restrictions thereof. The authority of the Board of Directors with respect to each series of the Preferred Stock shall include, but not be limited to, determination of the following: (i) The number of shares constituting that series and the distinctive designation of that series; (ii) The dividend rate on the shares of that series, whether dividends shall be cumulative, and, if so, from which date or dates, and the relative rights of priority, if any, of payment of dividends on shares of that series; (iii) Whether that series shall have voting rights, in addition to the voting rights provided by law, and, if so, the terms of such voting rights; (iv) Whether that series shall have conversion privileges, and, if so, the terms and conditions of such conversion, including provision for adjustment of the conversion rate in such events as the Board of Directors shall determine; (v) Whether or not the shares of that series shall be redeemable, and, if so, the terms and conditions of such redemption, including the date or date upon or after which they shall be redeemable, and the amount per share payable in case of redemption, which amount may vary under different conditions and at different redemption dates; (vi) Whether that series shall have a sinking fund for the redemption or purchase of shares of that series, and, if so, the terms, and amount of such sinking fund; (vii) The rights of the shares of that series in the event of voluntary or involuntary liquidation, dissolution or winding up of the corporation, and the relative rights of priority, if any, of payment of shares of that series; and (viii) Any other relative rights, preferences and limitations of that series. (c) Common Stock. Each share of Common Stock issued and outstanding shall have one vote upon matters submitted to the common stock shareholders for a vote. -2- 3 FIFTH: The Board of Directors shall have the power to adopt, amend and repeal the Bylaws of the Corporation (except so far as the Bylaws of the Corporation adopted by the stockholders shall otherwise provide). Any Bylaws adopted by the directors under the powers conferred hereby may be amended or repealed by the directors or by the stockholders. Notwithstanding the foregoing and anything contained in this Certificate of Incorporation to the contrary, Article II, Sections 1 (c), 5, 6 and 7; Article III, Section 2; and Article V of the Bylaws as originally adopted by the sole incorporator shall not be amended or repealed and no provision inconsistent therewith shall be adopted without the affirmative vote of the holders of at least 80% of the voting power of all the shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class; provided, however, that the Continuing Directors by a two-thirds vote of such Continuing Directors defined in Article EIGHTH say amend or repeal the foregoing Bylaw provisions without the requirement of such shareholder vote. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of all the shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend, adopt any provision inconsistent with or repeal this Article Fifth; provided, however, that if the Continuing Directors as defined in Article EIGHTH shall by a two-thirds vote of such Continuing Directors have adopted a resolution approving the amendment or repeal proposal and have determined to recommend it for approval by the holders of stock entitled to vote thereon, then the vote required shall be the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote thereon. SIXTH: Any action required or permitted to be taken by the stockholders of the Corporation must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders. Except as otherwise required by law and subject to the rights of the holders of the Preferred Stock, special meetings of stockholders of the Corporation may be called only by the Board of Directors pursuant to a resolution approved by a majority of the whole Board of Directors. Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend, or adopt any provision inconsistent with or repeal this Article Sixth; provided, however, that if the Continuing Directors as defined in Article EIGHTH shall by a two-thirds vote of such Continuing Directors have adopted a resolution approving the amendment or repeal proposal and have determined to recommend it for approval by the holders of stock entitled to vote thereon, then the vote required shall be the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote thereon. SEVENTH: (a) The business and affairs of the corporation shall be managed by the Board of Directors of the corporation. -3- 4 (b) Except as otherwise fixed by or pursuant to the provisions of Article Fourth hereof relating to the rights of the holders of Preferred Stock to elect additional directors under specified circumstances, the number of the directors of the Corporation shall be fixed from time to time by or pursuant to the Bylaws of the Corporation. The directors, other than those who may be elected by the holders of Preferred Stock, shall be classified, with respect to the time for which they severally hold office, into three classes, as nearly equal in number as possible, as shall be provided in the manner specified in the Bylaws of the Corporation, one class to be originally elected for a term expiring at the annual meeting of stockholders to be held in 1988, another class to be originally elected for a term expiring at the annual meeting of stockholders to be held in 1989, and another class to be originally elected for a term expiring at the annual meeting of stockholders to be held in 1990, with each class to hold office until its successor is elected and qualified. At each annual meeting of the stockholders, the successors of the class of directors whose term expires at that meeting shall be elected to hold office for a term expiring at the annual meeting of stockholders held in the third year following the year of their election. (c) Advance notice of stockholder nominations, for the election of directors shall be given in the manner provided in the Bylaws of the Corporation. Election of directors need not be by written ballot unless the Bylaws of the Corporation shall so provide. (d) Except as otherwise provided for or fixed by or pursuant to the provisions of Article Fourth hereof relating to the rights of the holders of Preferred Stock to elect directors under specified circumstances, newly created directorships resulting from any increase in the number of directors and any vacancies on the Board of Directors resulting from death, resignation, disqualification, removal or other cause shall be filled by the affirmative vote of a majority of the remaining directors then in office, even though less than a quorum of the Board of Directors. Any director elected in accordance with the preceding sentence shall hold office for the remainder of the full term of the class of directors in which the new directorship was created or the vacancy occurred and until such director's successor shall have been elected and qualified. No decrease in the number of directors constituting the Board of Directors shall shorten the term of any incumbent director. (e) Subject to the rights of any Preferred Stock to elect directors under specified circumstances, any director may be removed from office, only with cause, and only by the affirmative vote of the holders of 50% of the combined voting power of the then outstanding shares of stock entitled to vote generally in the election of directors, voting together as a single class. (f) To the fullest extent permitted by the General Corporation Law of the State of Delaware, a director of the corporation shall not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director. Any repeal or modification of this paragraph shall be prospective only, and shall not adversely affect any limitation on the personal liability of a director of -4- 5 the corporation with respect to any act or omission occurring prior to the time of such repeal or modification. (g) Notwithstanding anything contained in this Certificate of Incorporation to the contrary, the affirmative vote of the holders of at least 80% of the voting power of all shares of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend, adopt any provision inconsistent with or repeal this Article Seventh; provided, however, that if the Continuing Directors as defined in Article EIGHTH shall by a two-thirds vote of such Continuing Directors have adopted a resolution approving the amendment or repeal proposal and have determined to recommend it for approval by the holders of stock entitled to vote thereon, then the vote required shall be the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote thereon. EIGHTH: (a) In addition to any affirmative vote required by law, this Certificate of Incorporation, any resolution or resolutions adopted by the Board of Directors pursuant to its authority under Article FOURTH of this Certificate of Incorporation, any agreement with any national securities exchange or otherwise, any Business Combination involving the corporation or any Subsidiary and any Related Person or any Affiliate or Associate of a Related Person shall be subject to approval or authorization in the manner provided by this Article EIGHTH. Certain capitalized terms used herein are defined in paragraph (d) of this Article EIGHTH. (b) Except as otherwise expressly provided in paragraph (c) of this Article EIGHTH, no Business Combination shall be consummated or effected, either directly or indirectly, unless such Business Combination shall have been approved or authorized by the affirmative vote of the holders of not less than sixty-six and two-thirds percent (66-2/3%) of the outstanding shares of Voting Stock which are not Beneficially Owned by any Related Person or an Affiliate or Associate of such Related Person, voting together as a single class (it being understood for purposes of this Article EIGHTH, each share of Voting Stock shall have one vote, notwithstanding any provision contained in Article FOURTH to the contrary), notwithstanding the fact that no vote for such transaction or approval by some lesser percentage of stockholders may be required or specified by law, this Certificate of Incorporation, any resolution or resolutions adopted by the Board of Directors of the corporation pursuant to its authority under Article FOURTH of this Certificate of Incorporation, any agreement with any national securities exchange or otherwise. (c) The approval or authorization of any Business Combination in the manner provided for by paragraph (b) of this Article EIGHTH shall not be required if all the conditions specified in either paragraph (c)(i) or paragraph (c)(ii) of this Article EIGHTH are satisfied: (i) such Business Combination shall have been expressly approved by not less than two-thirds of the Continuing Directors, either in -5- 6 advance of or subsequent to a Related Person having become a Related Person; or (ii) all of the conditions specified in the following clauses shall have been met: (A) the Fair Market Value as of the Consummation Date of the consideration to be received per share of each class or series of Capital Stock by Disinterested Stockholders in the Business Combination is not less than the Highest Per Share Price (it being understood that the provisions of this subparagraph (c)(ii)(A) shall be required to be met with respect to every class or series of the outstanding Capital Stock, whether or not the Related Person has previously acquired any shares of a particular series or class of Capital Stock); and (B) the form of consideration to be received by Disinterested Stockholders in the Business Combination shall be United States currency or the form of consideration used by the Related Person in acquiring the largest aggregate number of shares of the Capital Stock that such Related Person has previously acquired; and (C) after such Related Person has become a Related Person and prior to the Consummation Date: (1) except as approved by not less than two-thirds of the Continuing Directors, there shall have been no failure to declare and pay at the regular date therefor any full quarterly dividends (whether or not cumulative) on the outstanding Capital Stock; and (2) such Related Person shall have not become the beneficial owner of any additional shares of Voting Stock except as part of the transaction which results in such Related Person becoming a Related Person; and. (D) after such Related Person has become a Related Person, such Related Person shall not have received the benefit, directly or indirectly (except proportionately as a stockholder of the corporation), of any loans, advances, guarantees, pledges or other financial assistance or tax advantages provided by the corporation or any Subsidiary, whether in anticipation of or in connection with such Business Combination or otherwise; and (E) a proxy or information statement describing the proposed Business Combination and complying with the requirements of the Act as then in effect shall have been mailed to all Disinterested Stockholders at least thirty (30) days prior to the date of the stockholders' meeting at which such Business Combination is to be considered (whether or not a proxy or information statement is -6- 7 required to be mailed pursuant to the Act) and such proxy or information statement shall have contained at the front thereof, in a prominent place, such recommendations and other relevant information concerning the Business Combination as a majority of the Continuing Directors may determine so to include. (d) For the purposes of this Article EIGHTH: (i) The term "Act" shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, or any similar United States statute enacted to supercede or supplement the Act. (ii) The term "Affiliate" shall have the meaning ascribed to it in Rule 12b-2 under the Act, as in effect on October 31, 1986, and shall include any Person that, after giving effect to a Business Combination, would become an Affiliate. (iii) The term "Announcement Date" shall mean the date of the first public announcement of a proposed Business Combination. (iv) The term "Associate" shall have the meaning ascribed to it in Rule 12b-2, under the Act as in effect on October 31, 1986 (the term "registrant," as used in such Rule 12b-2, meaning in this case the corporation), and shall include any Person that, after giving effect to a Business Combination, would become an Associate. (v) The term "Beneficial Owner" or "Beneficially Owned" shall mean, or refer to stock ownership by, any person who beneficially own any Voting Stock within the meaning ascribed in Rule 13d-3 under the Act as in effect in October 31, 1986 or who has the right to acquire any such beneficial ownership (whether or not such right is exercisable immediately, with the passage of time or subject to any condition) pursuant to any agreement, contract, arrangement or understanding or upon the exercise of any conversion, exchange or other right, warrant or option, or otherwise. A Person shall be deemed the Beneficial Owner of all Capital Stock of which any Affiliate or Associate of such Person is the Beneficial Owner. (vi) The term "Business Combination" shall mean any (A) merger or consolidation of the corporation or a Subsidiary with or into a Related Person or any other corporation which is, or after such merger or consolidation would be, an Affiliate or Associate of a Related Person; (B) sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to or with any Related Person or any Affiliate or Associate of any Related Person, of all or any Substantial Amount of the assets of the corporation, one or more Subsidiaries, or the corporation and one or more Subsidiaries, other than in the ordinary course of business; (C) adoption of any plan or proposal for the liquidation or -7- 8 dissolution of the corporation proposed by or on behalf of a Related Person or any Affiliate or Associate of any Related Person; (D) sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions) to the corporation, one or more Subsidiaries or the corporation and one or more Subsidiaries (in one transaction or a series of transactions) of all or any Substantial Amount of the assets of a Related Person or any Affiliate or Associate of any Related Person, other then in the ordinary course of business; (E) issuance, pledge or transfer of securities of the corporation, one or more Subsidiaries, or the corporation and one or more Subsidiaries (in one transaction or a series of transactions) to or with a Related Person or any Affiliate or Associate of any Related Person in exchange for a Substantial Amount of cash, securities or other property (or a combination thereof), except any issuance, pledge or transfer of such securities to any such Person if such Person is acting as an underwriter with respect to such securities; (F) reclassification of securities, (including any reverse stock split) or recapitalization of the corporation, any merger or consolidation of the corporation with or into one or more Subsidiaries, or any other transaction that would have the effect, either directly or indirectly, of increasing the voting power or the proportionate share of any class of equity or convertible securities of the corporation or any Subsidiary which is directly or indirectly Beneficially Owned by any Related Person or any Affiliate or Associate of my Related Person; (G) agreement, contract or other arrangement providing for any of the transactions described in this definition of Business Combinations; and (H) any series of transactions that not less than two-thirds of the Continuing Directors determine are related and, if taken together, would constitute a Business Combination under this definition of Business Combination. (vii) The term "Capital Stock" shall mean all capital stock of any class of the corporation authorized to be issued from time to time under this Certificate of Incorporation, whether now or hereafter outstanding. (viii) The term "Consummation Date" shall mean the date of the consummation of the Business Combination. (ix) The term "Continuing Director" shall mean any member of the Board of Directors of the corporation who is not the Related Person, and not an Affiliate, Associate, representative or nominee of the Related Person or of such an Affiliate or Associate, that is involved in the relevant Business Combination, and (A) was a member of the Board of Directors prior to the Determination Date with respect to such Related Person or (B) whose initial election as a director of the corporation succeeds a Continuing Director and was recommended by a majority vote of the Continuing Directors then in office; provided, that, in either case, such Continuing Director shall have continued in office after becoming a Continuing Director. -8- 9 (x) The term "Determination Date" shall mean the date and time at which a Person became a Related Person. (xi) The term "Disinterested Stockholder" shall mean a holder of shares of a particular class or series of Capital Stock who is not (A) a Related Person with or for the benefit of whom a Business Combination is proposed to be consummated or (B) an Affiliate or Associate of such Related Person. (xii) The term "Fair Market Value" shall mean (A) in the case of United States currency, the amount thereof; (B) in the case of stock and other securities, the highest closing sales price during the 30-day period immediately preceding the date in question of a share or trading unit of such stock or security on the Composite Tape for New York Stock Exchange -- Listed Stocks, or, if such stock or security is not listed on the New York Stock Exchange, on the principal United States securities exchange registered under the Act on which such stock or security is listed, or, if such stock or security to not listed on any such securities exchange, the highest closing sale price or bid quotation with respect to a share or trading unit of such stock or security during the 30-day period on the National Association of Securities Dealers, Inc. Automated Quotations System or any successor system or, if no such quotations are available, the fair market value on the date in question of a share or trading unit of such stock or security as determined in good faith by a majority vote of the Continuing Directors; and (C) in the case of property other than cash, stock or other securities, the fair market value of such property on the date in question as determined in good faith by a majority vote of the Continuing Directors. (xiii) The term "Highest Per Share Price" shall mean, with respect to the consideration to be received per share of each class or series of Capital Stock by Disinterested Stockholders in any particular Business Combinations, the higher of the following: (A) the highest per share price (including brokerage commissions transfer taxes and soliciting dealers' fees) paid by or on behalf of the Related Person in acquiring Beneficial Ownership of any of its holdings of such class or series of Capital Stock of this corporation (1) within the two-year period immediately prior to the Announcement Date or (2) in the transaction or series of transactions in which the Related Person became a Related Person, whichever is higher; or (B) the fair Market Value per share of the shares of Capital Stock being acquired in the Business Combination as of (1) the Announcement Date or (2) the date on which the Related Person became a Related Person, whichever is higher. -9- 10 For the purposes of this paragraph (d)(xiii), (A) the price deemed to have been paid by a Related Person for any shares of Capital Stock of which an Affiliate or Associate is the Beneficial Owner shall be the price which to the highest of the following: (1) the price paid upon the acquisition thereof by the relevant Affiliate or Associate (if any, and whether or not such Affiliate or Associate was an Affiliate or Associate at the time of such acquisition) or (2) the Fair Market Value of such Capital Stock as of the day when the Related Person became a Beneficial Owner thereof; (B) in determining the Highest Per Share Price, all purchases by the Related Person shall be taken into account, regardless of whether the shares were purchased before or after the Related Person became a Related Person; (C) a Person shall be deemed to have acquired a share of Capital Stock at the time when such Person became the Beneficial Owner thereof; and (D) appropriate adjustments shall be made to reflect the relevant effect of any stock dividends, splits and distributions and any combination or reclassification of Capital Stock. (xiv) The phrase "consideration to be received" as used in subparagraph (c)(ii)(A) of this Article EIGHTH shall include, without limitation, the shares of Common Stock or any other class or series of Capital Stock retained by the Disinterested Stockholders in the event of a Business Combination that is a merger or consolidation in which the corporation is the surviving entity. (xv) The term "Person" shall mean any individual, corporation, partnership or other entity, including any group comprised of any Person and any other Person or any Affiliate or Associate thereof with whom such Person or any Affiliate or Associate thereof has any agreement, arrangement or understanding, directly or indirectly, for the purpose of acquiring, holding, voting, or disposing of Voting Stock and each Person, and any Affiliate or Associate thereof, that is a member of such group. (xvi) The term "Related Person" shall mean any Person who, alone or together with any Affiliates or Associates is: (A) the Beneficial Owner, directly or indirectly, of an aggregate percentage of the outstanding Voting Stock equal to or exceeding ten percent (10%), or (B) an assignee of or otherwise has succeeded to the Beneficial Ownership of any shares of Voting Stock which were at any time within the two-year period immediately prior to the date in question Beneficially Owned by any Related Person, if such assignment or succession shall have occurred in the course of a transaction or series of transactions not involving a public offering within the meaning of the Securities Act of 1933, as amended; -10- 11 provided, however, that the term "Related Person" shall not include (v) any officer or director initially appointed by the sole incorporator of the Corporation or any of their Affiliates or Associates, (w) any one or a group of more than one Continuing Director, (x) the corporation or any Subsidiary all of the Capital Stock of or other ownership interest in which is directly or indirectly owned by the Corporation, (y) any Person whose acquisition of such aggregate percentage of Voting Stock was approved by not less than a two-thirds vote of the Continuing Directors prior to such acquisition or (z) any pension, profit sharing, employee stock ownership or other employee benefit plan of the corporation or any Subsidiary or any trustee or fiduciary when acting in such capacity with respect to any such plan. (xvii) The term "Subsidiary" shall mean any Person a majority of any class of equity securities in which is owned, directly or indirectly, by the corporation, one or more Subsidiaries or the corporation and one or more Subsidiaries. (xviii)The term "Substantial Amount" shall mean the amount of stock, securities or other assets or property having a Fair Market Value equal to ten percent (10%) or more of the Fair Market Value of the total consolidated assets of the corporation and its Subsidiaries taken as a whole as of the end of the most recent fiscal year of the corporation ended prior to the time as of which the determination is being made. (xix) The term "Voting Stock" shall mean all outstanding Common Stock of the corporation and all other outstanding Capital Stock, if any, entitled to vote on each matter on which the holders of record of Common Stock shall be entitled to vote, and each reference to a proportion of shares of Voting Stock shall refer to such proportion of the votes entitled to be cast by the holders of such shares of Common Stock and other Capital Stock voting as one class (it being understood that for purposes of this Article EIGHTH, each share of Voting Stock shall have the number of votes granted to it in accordance with Article FOURTH of this Certificate of Incorporation). (e) The fact that any Business Combination complies with the provisions of paragraph (c)(ii) of this Article EIGHTH shall not be construed to impose any fiduciary duty, obligation or responsibility on the Board of Directors, or any member thereof, to approve such Business Combination or recommend its adoption or approval to the stockholders of the corporation, nor shall such compliance limit, prohibit or otherwise restrict in any manner the Board of Directors, or any member thereof, with respect to evaluations of or actions and responses taken with respect to such Business Combination. (f) A majority of the Continuing Directors of the corporation shall have the power and duty to determine for the purposes of this article EIGHTH, on the basis of information known to then after reasonable inquiry, (i) whether a person is a Related Party, (ii) the number of shares of Voting Stock Beneficially Owned by any -11- 12 person, and (iii) whether a person is an Affiliate or Associate of another. A majority of the Continuing Directors of the corporation shall have the further power to interpret all of the terms and provisions of this Article EIGHTH. (g) The affirmative vote of not less than sixty-six and two-thirds percent (66-2/3%) of the outstanding shares of Voting Stock which are not Beneficially Owned by any Related Person or any Affiliate or Associate of a Related Person shall be required to alter, amend or repeal, or adopt any provisions inconsistent with, the provision set forth in this Article EIGHTH; provided, however, that if the Continuing Directors shall by a two-thirds vote of such Continuing Directors have adopted a resolution approving the amendment or repeal proposal and have determined to recommend it for approval by the holders of stock entitled to vote thereon, then the vote required shall be the affirmative vote of the holders of at least a majority of the outstanding shares entitled to vote thereon. NINTH: Subject to the other terms of this Certificate of Incorporation, the Corporation reserves the right to amend, altar, change or repeal any provision contained in this Certificate of Incorporation, in the manner now or hereafter prescribed by statute and this Certificate of Incorporation, and all rights conferred on stockholders herein are granted subject to this reservation. TENTH: The period of duration of the Corporation is perpetual." IN WITNESS WHEREOF, the Corporation has caused this certificate to be signed by its duly authorized officer this day of December, 1998. FIDELITY NATIONAL FINANCIAL, INC. By: ____________________________________ M'Liss Jones Kane, Senior Vice President and Secretary -12- EX-3.2 3 BYLAWS OF THE REGISTRANT 1 EXHIBIT 3.2 FIDELITY NATIONAL FINANCIAL, INC. BYLAWS ARTICLE I OFFICES Section 1. Registered Office. The registered office of the Corporation in the State of Delaware shall be in the City of Wilmington, County of New Castle, State of Delaware. Section 2. Other Offices. The Corporation also may have offices at such other places both within and without the State of Delaware as the Board of Directors may from time to time determine or the business of the Corporation may require. ARTICLE II STOCKHOLDERS Section 1. Stockholder Meetings. (a) Time and Place of Meetings. Meetings of the stockholders shall be held at such times and places, either within or without the State of Delaware, as may from time to time be fixed by the Board of Directors and stated in the notices or waivers of notice of such meetings. (b) Annual Meeting. The annual meeting of the stockholders shall be held sometime during the month of June in each year as shall be designated by the Board of Directors, or at such other date as may be designated by the Board of Directors, for the election of directors and the transaction of such other business properly brought before such annual meeting of the stockholders and within the powers of the stockholders. (c) Special Meetings. Special meetings of the stockholders of the Corporation for any purpose or purposes may be called at any time only by the Board of Directors pursuant to a resolution approved by a majority of the entire Board of Directors. Business transacted at any special meeting of the stockholders shall be limited to the purposes stated in the notice of such meeting. (d) Notice of Meetings. Except as otherwise provided by law, the Certificate of Incorporation or these Bylaws, written notice of each meeting of the stockholders shall be given not less than ten (10) days nor more than sixty (60) days before the date of such meeting to each stockholder entitled to vote thereat, directed to such stockholder's address as it appears upon the books of the Corporation, such notice to specify the place, date, hour and purpose or purposes of 2 such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, postage prepaid, addressed to the stockholder at his address as it appears on the stock ledger of the Corporation. When a meeting of the stockholders is adjourned to another time and/or place, notice need not be given of such adjourned meeting if the time and place thereof are announced at the meeting of the stockholders at which the adjournment is taken, unless the adjournment is for more than thirty (30) days or unless after the adjournment a new record date is fixed for such adjourned meeting, in which event a notice of such adjourned meeting shall be given to each stockholder of record entitled to vote thereat. Notice of the time, place and purpose of any meeting of the stockholders may be waived in writing either before or after such meeting and will be waived by any stockholder by such stockholder's attendance thereat in person or by proxy. Any stockholder so waiving notice of such a meeting shall be bound by the proceedings of any such meeting in all respects as if due notice thereof had been given. (e) Quorum. Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, the holders of not less than a majority of the shares entitled to vote at any meeting of the stockholders, present in person or by proxy, shall constitute a quorum and the affirmative vote of the majority of such quorum shall be deemed the act of the stockholders. If a quorum shall fail to attend any meeting of the stockholders, the presiding officer of such meeting may adjourn such meeting from time to time to another place, date or time, without notice other than announcement at such meeting, until a quorum is present or represented. At such adjourned meeting at which a quorum is present or represented, any business may be transacted that might have been transacted at the meeting of the stockholders as originally noticed. The foregoing notwithstanding, if a notice of any adjourned special meeting of the stockholders is sent to all stockholders entitled to vote thereat which states that such adjourned special meeting will be held with those present in person or by proxy constituting a quorum, then, except as otherwise required by law, those present at such adjourned special meeting of the stockholders shall constitute a quorum and all matters shall be determined by a majority of the votes cast at such special meeting. Section 2. Determination of Stockholders Entitled to Notice and to Vote. To determine the stockholders entitled to notice of any meeting of the stockholders or to vote thereat, the Board of Directors may fix in advance a record date as provided in Article VII, Section 1 of these Bylaws, or if no record date is fixed by the Board of Directors, a record date shall be determined as provided by law. Section 3. Voting. (a) Except as otherwise required by law, the Certificate of Incorporation or these Bylaws, each stockholder present in person or by proxy at a meeting of the stockholders shall be entitled to one vote for each full share of stock registered in the name of such stockholder at the time fixed by the Board of Directors or by law as the record date of the determination of stockholders entitled to vote at such meeting. (b) Every stockholder entitled to vote at a meeting of the stockholders may do so either (i) in person or (ii) by one or more agents authorized by a written proxy executed by the person or such stockholder's duly authorized agent, whether by manual signature, typewriting, telegraphic transmission or otherwise. Every proxy must be executed in writing (which shall include 2 3 telegraphing or cabling) by the stockholder or by his duly authorized agent, but no proxy shall be voted on after three years from its date, unless the proxy provides for a longer period. (c) Voting may be by voice or by ballot as the presiding officer of the meeting of the stockholders shall determine. On a vote by ballot, each ballot shall be signed by the stockholder voting, or by such stockholder's proxy, and shall state the number of shares voted. (d) In advance of or at any meeting of the stockholders, the Chairman of the Board or President may appoint one or more persons as inspectors of election (the "Inspectors") to act at such meeting. Such Inspectors shall take charge of the ballots at such meeting. After the balloting on any question, the Inspectors shall count the ballots cast and make a written report to the secretary of such meeting of the results. Subject to the direction of the chairman of the meeting, the duties of such Inspectors may further include without limitation: determining the number of shares outstanding and the voting power of each; the shares represented at the meeting; the existence of a quorum; the authenticity, validity, and effect of proxies; receiving votes, ballots, or consents; hearing and determining all challenges and questions in any way arising in connection with the right to vote; counting and tabulating all votes of consents and determining when the polls shall close; determining the result; and doing such acts as may be proper to conduct the election or vote with fairness to all shareholders. An Inspector need not be a stockholder of the Corporation and any officer of the Corporation may be an Inspector on any question other than a vote for or against such officer's election to any position with the Corporation or on any other questions in which such officer may be directly interested. If there are three Inspectors, the determination, report or certificate of two such Inspectors shall be effective as if unanimously made by all Inspectors. Section 4. List of Stockholders. The officer who has charge of the stock ledger of the Corporation shall prepare and make available, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote thereat, arranged in alphabetical order, showing the address of and the number of shares registered in the name of each such stockholder. Such list shall be open to the examination of any stockholder, for any purpose germane to such meeting, either at a place within the city where such meeting is to be held and which place shall be specified in the notice of such meeting, or, if not so specified, at the place where such meeting is to be held. The list also shall be produced and kept at the time and place of the meeting of the stockholders during the whole time thereof, and may be inspected by any stockholder who is present. Section 5. Action by Consent of Stockholders. Any action required or permitted to be taken by the stockholders must be effected at a duly called annual or special meeting of such holders and may not be effected by any consent in writing by such holders. Section 6. Conduct of Meetings. The chairman of the meeting shall have full and complete authority to determine the agenda, to set the procedures and order the conduct of meetings, all as deemed appropriate by such person in his sole discretion with due regard to the orderly conduct of business. 3 4 Section 7. Notice of Agenda Matters. If a stockholder wishes to present to the Chairman of the Board or the President an item for consideration as an agenda item for a meeting of shareholders, he must give timely notice to the Secretary of the Corporation and give a brief description of the business desired to be brought before the meeting. To be timely, a stockholder's notice must be delivered to or mailed and received at the principal executive offices of the Corporation, not less than sixty days nor more than ninety days prior to the meeting; provided, however, that in the event that less than seventy days' notice or prior public disclosure of the date of the meeting is given or made to stockholders, notice by the stockholder to be timely must be so received not later than the close of business on the tenth day following the date on which such notice of the date of the annual meeting was mailed or such public disclosure was made. ARTICLE III BOARD OF DIRECTORS Section 1. General Powers. Unless otherwise restricted by law, the Certificate of Incorporation or these Bylaws as to action which shall be authorized or approved by the stockholders, and subject to the duties of directors as prescribed by these Bylaws, all corporate powers shall be exercised by or under the authority of, and the business and affairs of the Corporation shall be controlled by, the Board of Directors. Without prejudice to such general powers, but subject to the same limitations, the directors shall have the following powers: (a) To select and remove all the other officers, agents and employees of the Corporation; prescribe such powers and duties for them as may not be inconsistent with law, the Certificate of Incorporation or these Bylaws, fix their compensation and require from them security for faithful service. (b) To conduct, manage, and control the affairs and business of the Corporation and to make such rules and regulations therefor not inconsistent with law, the Certificate of Incorporation or these Bylaws, as they may deem best. (c) To change the principal office for the transaction of the business of the Corporation from one location to another as provided in Article I, Section 2, hereof; to designate any place within or without the State of Delaware for the holding of any stockholders' meeting or meetings and to adopt, make and use a corporate seal, and to prescribe the forms of certificates of stock, and to alter the form of such seal and of such certificates from time to time, as in their judgment they may deem best, provided such seal and such certificates shall at all times comply with the provisions of law. (d) To authorize the issue of shares of stock of the Corporation from time to time, upon such terms as may be lawful, in consideration of money paid, labor done or services actually rendered, debts or securities cancelled, or tangible or intangible property actually received or, in the case of shares issued as a dividend, against amounts transferred from surplus to stated capital. 4 5 (e) To borrow money and incur indebtedness for the purposes of the Corporation, and to cause to be executed and delivered therefor, in the corporate name, promissory notes, bonds, debentures, deeds of trust, mortgages, pledges, hypothecations or other evidences of debt and securities therefor. (f) To adopt and put into effect such stock purchase plans and stock option plans, both of general and restricted stock option plan character, as they may deem advisable for the benefit of employees of the Corporation, and to issue stock in accordance with and pursuant to any such plan. Section 2. Election of Directors. (a) Number, Qualification and Term of Office. The authorized number of directors of the Corporation shall be fixed from time to time by the Board of Directors, but shall not be less than three (3) nor more than ten (10). The exact number of directors shall be determined from time to time, either by a resolution or Bylaw provision duly adopted by a majority of the whole Board of Directors. Directors need not be stockholders. (b) Resignation. Any director may resign from the Board of Directors at any time by giving written notice to the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein, or if the time when such resignation shall become effective shall not be so specified, then such resignation shall take effect immediately upon its receipt by the Secretary; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. (c) Nomination of Directors. Candidates for director of the Corporation shall be nominated only either by: (i) the Board of Directors or a committee appointed by the Board of Directors, or (ii) nomination at any stockholders' meeting by or on behalf of any stockholder entitled to vote thereat; provided, that written notice of such stockholder's intent to make such nomination or nominations shall have been given, either by personal delivery or by United States certified mail, postage prepaid, to the Secretary of the Corporation not later than (1) with respect to an election to be held at an annual meeting of the stockholders, ninety (90) days in advance of such annual meeting, and (2) with respect to an election to be held at a special meeting of the stockholders for the election of directors, the close of business on the tenth day following the date on which notice of such special meeting is first given to the stockholders entitled to vote thereat. Each such notice by a stockholder shall set forth: (1) the name and address of the (A) stockholder who intends to make the nomination and (B) person or persons to be nominated; (2) a representation that the stockholder is a holder of record of stock of the Corporation entitled to vote at such meeting and intends to appear in person or by proxy at the meeting to nominate the person or persons specified in the notice; (3) a description of all arrangements or understandings between the stockholder and each nominee and any other person or 5 6 persons (naming such person or persons) pursuant to which the nomination or nominations are to be made by the stockholder; (4) such other information regarding each nominee proposed by such stockholder as would be required to be included in a proxy or information statement filed with the Securities and Exchange Commission pursuant to the proxy rules promulgated under the Securities Act of 1934, as amended, or any successor statute thereto, had the nominee been nominated, or intended to be nominated, by the Board of Directors; and (5) the manually signed consent of each nominee to serve as a director of the Corporation if so elected. The presiding officer of the meeting of the stockholders may refuse to acknowledge the nominee of any person not made in compliance with the foregoing procedure. (d) Preferred Stock Provisions. Notwithstanding the foregoing, whenever the holders of any one or more classes or series of stock issued by the Corporation having a preference over the Common Stock as to dividends or upon liquidation shall have the right, voting separately by class or series, to elect directors at an annual or special meeting of the stockholders, the election, term of office, filling of vacancies, nomination, terms of removal and other features of such directorships shall be governed by the terms of Article FOURTH of the Certificate of Incorporation and the resolution or resolutions establishing such class or series adopted pursuant thereto. Section 3. Meetings of the Board of Directors. (a) Regular Meetings. Regular meetings of the Board of Directors shall be held without call at the following times: (i) at such times as the Board of Directors shall from time to time by resolution determine; and (ii) one-half hour prior to any special meeting of the stockholders and immediately following the adjournment of any annual or special meeting of the stockholders. Notice of all such regular meetings hereby is dispensed with. (b) Special Meetings. Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, any three (3) directors, the President or by any officer authorized by the Board of Directors. Notice of the time and place of special meetings of the Board of Directors shall be given by the Secretary or an Assistant Secretary of the Corporation, or by any other officer authorized by the Board of Directors. Such notice shall be given to each director personally or by mail, messenger, telephone or telegraph at such director's business or residence address. Notice by mail shall be deposited in the United States mail, postage prepaid, not later than the third day prior to the date fixed for such special meeting. Notice by telephone or telegraph shall be sent, and notice given personally or by messenger shall be delivered, at least twenty-four (24) hours prior to the time set for such special meeting. Notice of a special meeting of the Board of Directors need not contain a statement of the purpose of such special meeting. (c) Adjourned Meetings. A majority of directors present at any regular or special meeting of the Board of Directors or any committee thereof, whether or not constituting a quorum, may adjourn any meeting from time to time until a quorum is present or otherwise. Notice 6 7 of the time and place of holding any adjourned meeting shall not be required if the time and place are fixed at the meeting adjourned. (d) Place of Meetings Unless a resolution of the Board of Directors is given, either before or after the meeting, and filed with the Secretary of the Corporation designating a different place within or without the State of Delaware, meetings of the Board of Directors, both regular and special, shall be held at the Corporation's principal executive offices. (e) Participation by Telephone. Members of the Board of Directors or any committee may participate in any meeting of the Board of Directors or committee through the use of conference telephone or similar communications equipment, so long as all members participating in such meeting can hear one another, and such participation shall constitute presence in person at such meeting. (f) Quorum. At all meetings of the Board of Directors or any committee thereof, a majority of the total number of directors of the entire then authorized Board of Directors or such committee shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any such meeting at which there is a quorum shall be the act of the Board of Directors or any committee, except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws. A meeting of the Board of Directors or any committee at which a quorum initially is present may continue to transact business notwithstanding the withdrawal of directors so long as any action is approved by at least a majority of the required quorum for such meeting. (g) Waiver of Notice. The transactions of any meeting of the Board of Directors or any committee, however called and noticed or wherever held, shall be as valid as though had at a meeting duly held after regular call and notice, if a quorum be present and if, either before or after the meeting, each of the directors not present signs a written waiver of notice, or a consent to hold such meeting, or an approval of the minutes thereof. All such waivers, consents or approvals shall be filed with the corporate records or made a part of the minutes of the meeting. Section 5. Action Without Meeting. Any action required or permitted to be taken by the Board of Directors at any meeting or at any meeting of a committee may be taken without a meeting if all members of the Board of Directors or such committee consent in writing and the writing or writings are filed with the minutes of the proceedings of the Board of Directors or such committee. Section 6. Compensation of Directors. Unless otherwise restricted by law, the Certificate of Incorporation or these Bylaws, the Board of Directors shall have the authority to fix the compensation of directors. The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed sum for attendance at each meeting of the Board of Directors or a stated salary as director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees of the Board of Directors may be allowed like compensation for attending committee meetings. 7 8 Section 7. Committees of the Board. (a) Committees. The Board of Directors may, by resolution adopted by a majority of the Board of Directors, designate one or more committees of the Board of Directors, each committee to consist of one or more directors. Each such committee, to the extent permitted by law, the Certificate of Incorporation and these Bylaws, shall have and may exercise such of the powers of the Board of Directors in the management and affairs of the Corporation as may be prescribed by the resolutions creating such committee. Such committee or committees shall have such name or names as may be determined from time to time by resolution adopted by the Board of Directors. The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of the committee. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in the place of any such absent or disqualified member. The Board of Directors shall have the power, at any time for any reason, to change the members of any such committee, to fill vacancies, and to discontinue any such committee. (b) Minutes of Meetings. Each committee shall keep regular minutes of its meetings and report the same to the Board of Directors when required. (c) Limits on Authority of Committees. No committee shall have the power or authority in reference to amending the Certificate of Incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares of stock adopted by the Board of Directors as provided in Section 151(a) of the General Corporation Law of the State of Delaware, fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation, or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation, or fix the number of shares of any series of stock or authorize the increase or decrease of the shares of any series), adopting an agreement of merger or consolidation, recommending to the stockholders the sale, lease or exchange of all or substantially all of the Corporation's property and assets, recommending to the stockholders a dissolution of the Corporation or a revocation of a dissolution, or amending any provision of these Bylaws; nor, unless the resolutions establishing such committee or the Certificate of Incorporation expressly so provide, shall it have the power or authority to declare a dividend, to authorize the issuance of stock, to adopt a certificate of ownership and merger, or to fill vacancies in the Board of Directors. (d) Audit Committee. The Board of Directors shall appoint an Audit Committee consisting of at least two directors, none of whom shall be employees of the Corporation. The Audit Committee shall review the financial affairs and procedures of the Corporation from time to time with management and meet with the auditors of the Corporation to review the financial statements and procedures. 8 9 ARTICLE IV OFFICERS Section 1. Officers. (a) Number. The officers of the Corporation shall be chosen by the Board of Directors and may include a Chairman of the Board of Directors and shall include a President, a Vice President, a Secretary and a Treasurer. The Board of Directors also may appoint one or more Assistant Secretaries or Assistant Treasurers and such other officers and agents with such powers and duties as it shall deem necessary. Any Vice President may be given such specific designation as may be determined from time to time by the Board of Directors. Any number of offices may be held by the same person, unless otherwise required by law, the Certificate of Incorporation or these Bylaws. (b) Election and Term of Office. The officers shall be elected annually by the Board of Directors at its regular meeting following the annual meeting of the stockholders and each officer shall hold office until the next annual election of officers and until such officer's successor is elected and qualified, or until such officer's death, resignation or removal. Any officer may be removed at any time, with or without cause, by a vote of the majority of the whole Board of Directors. Any vacancy occurring in any office may be filled by the Board of Directors. (c) Salaries. The salaries of all officers of the Corporation shall be fixed by the Board of Directors or a committee thereof from time to time. Section 2. Chairman of the Board of Directors. The Chairman of the Board of Directors, if there be a Chairman, shall preside at all meetings of the stockholders and the Board of Directors and shall have such other power and authority as may from time to time be assigned by the Board of Directors. Section 3. President. The President shall be the chief executive officer of the Corporation, shall preside at all meetings of the stockholders and the Board of Directors, if a Chairman of the Board has not been elected, and shall see that all orders and resolutions of the Board of Directors are carried into effect. Subject to the provisions of these Bylaws and to the direction of the Board of Directors, the President shall have the general and active management of the business of the Corporation, may execute all contracts requiring a seal and shall also execute any mortgages, conveyances or other legal instruments in the name of and on behalf of the Corporation, but his provision shall not prohibit the delegation of such powers by the Board of Directors to some other officer, agent or attorney-in-fact of the Corporation. Section 4. Vice Presidents. In the absence or disability of the President, the Vice Presidents in order of their rank as fixed by the Board of Directors, or if not ranked, the Vice President designated by the Board of Directors, shall perform all the duties of the President, and when so acting shall have all the powers 9 10 of, and be subject to all the restrictions upon, the President. The Vice Presidents shall have such other powers and perform such other duties as from time to time may be prescribed for them, respectively, by the Board of Directors or these Bylaws. Section 5. Secretary and Assistant Secretaries. The Secretary shall record or cause to be recorded, in books provided for the purpose, minutes of the meetings of the stockholders, the Board of Directors and all committees of the Board of Directors; see that all notices are duly given in accordance with the provisions of these Bylaws as required by law; be custodian of all corporate records (other than financial) and of the seal of the Corporation, and have authority to affix the seal to all documents requiring it and attest to the same; give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board of Directors; and, in general, shall perform all duties incident to the office of Secretary and such other duties as may, from time to time, be assigned to him by the Board of Directors or by the President. At the request of the Secretary, or in the Secretary's absence or disability, any Assistant Secretary shall perform any of the duties of the Secretary and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the Secretary. Section 6. Treasurer and Assistant Treasurers. The Treasurer shall keep or cause to be kept the books of account of the Corporation and shall render statements of the financial affairs of the Corporation in such form and as often as required by the Board of Directors or the President. The Treasurer, subject to the order of the Board of Directors, shall have custody of all funds and securities of the Corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board of Directors. He shall disburse the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements. The Treasurer shall perform all other duties commonly incident to his office and shall perform such other duties and have such other powers as the Board of Directors or the President shall designate from time to time. At the request of the Treasurer, or in the Treasurer's absence or disability, any Assistant Treasurer may perform any of the duties of the Treasurer and, when so acting, shall have all the powers of, and be subject to all the restrictions upon, the Treasurer. Except where by law the signature of the Treasurer is required, each of the Assistant Treasurers shall possess the same power as the Treasurer to sign all certificates, contracts, obligations and other instruments of the Corporation. ARTICLE V INDEMNIFICATION AND INSURANCE Section 1. Actions Against Directors and Officers. The Corporation shall indemnify to the full extent permitted by, and in the manner permissible under, the laws of the State of Delaware any person made, or threatened to be made, a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that such person or such person's testator or intestate is or was a director or officer of the 10 11 Corporation or any predecessor of the Corporation, or served any other enterprise as a director or officer at the request of the Corporation or any predecessor of the Corporation. Section 2. Contract. The provisions of Section 1 of this Article V shall be deemed to be a contract between the Corporation and each director and officer who serves in such capacity at any time while such Bylaw is in effect, and any repeal or modification thereof shall not affect any rights or obligations then existing with respect to any state of facts then or theretofore existing or any action, suit or proceeding theretofore or thereafter based in whole or in part upon any such state of facts. Section 3. Nonexclusivity. The rights of indemnification provided by this Article V shall not be deemed exclusive of any other rights to which any director or officer of the Corporation may be entitled apart from the provisions of this Article V. Section 4. Indemnification of Employees and Agents. The Board of Directors in its discretion shall have the power on behalf of the Corporation to indemnify any person, other than a director or officer, made a party to any action, suit or proceeding by reason of the fact that such person or such person's testator or intestate, is or was an employee or agent of the Corporation. Section 5. Insurance. Upon a resolution or resolutions duly adopted by the Board of Directors of the Corporation, the Corporation may purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation against any liability asserted against such person and incurred by him in any capacity, or arising out of his capacity as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of applicable law, the Certificate of Incorporation or these Bylaws. ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER Section 1. Certificates for Shares. Unless otherwise provided by a resolution of the Board of Directors, the shares of the Corporation shall be represented by a certificate. The certificates of stock of the Corporation shall be numbered and shall be entered in the books of the Corporation as they are issued. They shall exhibit the holder's name and number of shares and shall be signed by or in the name of the Corporation by (a) the Chairman of the Board of Directors, the President or any Vice President and (b) the Treasurer, any Assistant Treasurer, the Secretary or any Assistant Secretary. Any or all of the signatures on a certificate may be facsimile. In case any officer of the Corporation, transfer agent or registrar who has signed, or whose facsimile signature has been placed upon such certificate, shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such 11 12 certificate may nevertheless be issued by the Corporation with the same effect as if he were such officer, transfer agent or registrar at the date of issuance. Section 2. Classes of Stock. (a) If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualification, limitations, or restrictions of such preferences or rights shall be set forth in full or summarized on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock; provided, that, except as otherwise provided in Section 202 of the General Corporation Law of the State of Delaware, in lieu of the foregoing requirements, there may be set forth on the face or back of the certificate that the Corporation shall issue to represent such class or series of stock, a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights. (b) Within a reasonable time after the issuance or transfer of uncertificated stock, the Corporation shall send to the registered owner thereof a written notice containing the information required to be set forth or stated on certificates pursuant to applicable law (including Sections 151, 156, 202(a), or 218(a) of the General Corporation Law of the State of Delaware) or a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights. Section 3. Transfer. Upon surrender to the Corporation or the transfer agent of the Corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignation or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Upon receipt of proper transfer instructions from the registered owner of uncertificated shares, such uncertificated shares shall be cancelled, issuance of new equivalent uncertificated shares or certificated shares shall be made to the person entitled thereto and the transaction shall be recorded upon the books of the Corporation. Section 4. Record Owner. The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof, and, accordingly, shall not be bound to recognize any equitable or other claim to or interest in such share on the part of any other person, whether or not it shall have express or other notice thereof, save as expressly provided by the laws of the State of Delaware. Section 5. Lost Certificates. The Board of Directors may direct a new certificate or certificates or uncertificated shares to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to 12 13 have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing such issue of a new certificate or certificates or uncertificated shares, the Board of Directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as the Board of Directors shall require and to give the Corporation a bond in such sum as it may direct as indemnity against any claim that it may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or destroyed. ARTICLE VII MISCELLANEOUS Section 1. Record Date. (a) In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of the stockholders or any adjournment thereof, or entitled to receive payment of any dividend or other distribution or allotment of any rights or entitled to exercise, any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than sixty (60) nor less than ten (10) days prior to the date of such meeting nor more than sixty (60) days prior to any other action. If not fixed by the Board of Directors, the record date shall be determined as provided by law. (b) A determination of stockholders of record entitled to notice of or to vote at a meeting of the stockholders shall apply to any adjournments of the meeting, unless the Board of Directors fixes a new record date for the adjourned meeting. (c) Holders of stock on the record date are entitled to notice and to vote or to receive the dividend, distribution or allotment of rights or to exercise the rights, as the case may be, notwithstanding any transfer of the shares on the books of the Corporation after the record date, except as otherwise provided by agreement or by law, the Certificate of Incorporation or these Bylaws. Section 2. Execution of Instruments. The Board of Directors may, in its discretion, determine the method and designate the signatory officer or officers, or other persons, to execute any corporate instrument or document or to sign the corporate name without limitation, except where otherwise provided by law, the Certificate of Incorporation or these Bylaws. Such designation may be general or confined to specific instances. Section 3. Voting of Securities Owned by the Corporation. All stock and other securities of other corporations held by the Corporation shall be voted, and all proxies with respect thereto shall be executed, by the person so authorized by resolution of the Board of Directors, or, in the absence of such authorization, by the President. 13 14 Section 4. Corporate Seal. The Corporation shall have a corporate seal in such form as shall be prescribed and adopted by the Board of Directors. Section 5. Construction and Definitions. Unless the context requires otherwise, the general provisions, rules of construction and definitions in the General Corporation Law of the State of Delaware and the Certificate of Incorporation shall govern the construction of these Bylaws. Section 6. Amendments. Subject to the provisions of the Certificate of Incorporation and these Bylaws, these Bylaws may be altered, amended or repealed at any annual meeting of the stockholders (or at any special meeting thereof duly called for that purpose) by a majority vote of the shares represented and entitled to vote thereat; provided, that in the notice of any such meeting, notice of such purpose shall be given. Subject to the laws of the State of Delaware, the Certificate of Incorporation and these Bylaws, the Board of Directors may by majority vote of the whole Board of Directors amend these Bylaws, or enact such other Bylaws as in their judgment may be advisable for the regulation of the conduct of the affairs of the Corporation. Section 7. The Corporation expressly elects not to be governed by Section 203 of the General Corporation Law of Delaware. 14 EX-4.1 4 FORM OF INDENTURE FOR DEBT SECURITIES 1 EXHIBIT 4.1 ================================================================================ FIDELITY NATIONAL FINANCIAL, INC. TO ________________________, TRUSTEE FORM OF INDENTURE DATED AS OF CONVERTIBLE DEBT SECURITIES ================================================================================ 2 FIDELITY NATIONAL FINANCIAL, INCORPORATED RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND INDENTURE, DATED AS OF ___________
TRUST INDENTURE ACT SECTION INDENTURE SECTION Section 310(a)(1)................................................ 609 (a)(2)...................................................... 609 (a)(3)...................................................... Not Applicable (a)(4)...................................................... Not Applicable (a)(5)...................................................... 609 (b)......................................................... 608, 610 (c)......................................................... Not Applicable Section 311(a)................................................... 613 (b)......................................................... 613 (c)......................................................... Not Applicable Section 312(a)................................................... 701, 702(a) (b)......................................................... 702(b) (c)......................................................... 702(c) Section 313(a)................................................... 703(a) (b)......................................................... 703(b) (c)......................................................... 703(c) (d)......................................................... 703(d) Section 314(a)................................................... 704, 1009 (b)......................................................... Not Applicable (c)(1)...................................................... 102 (c)(2)...................................................... 102 (c)(3)...................................................... Not Applicable (d)......................................................... Not Applicable (e)......................................................... 102 Section 315(a)................................................... 601 (b)......................................................... 602 (c)......................................................... 601 (d)......................................................... 601 (e)......................................................... 514 Section 316(a)................................................... 101 (a)(1)(A)................................................... 104(f), 502, 512 (a)(1)(B)................................................... 104(f), 513 (a)(2)...................................................... Not Applicable (b)......................................................... 508 (c)......................................................... 104(f) Section 317(a)(1)................................................ 503 (a)(2)...................................................... 504 (b)......................................................... 1003 Section 318(a)................................................... 107 (c)......................................................... 107
- -------------------- Note: This reconciliation and tie shall not be deemed to be part of the Indenture. 3 TABLE OF CONTENTS
PAGE ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............1 Section 101. Definitions..............................................1 Section 102. Compliance Certificates and Opinions.....................9 Section 103. Form of Documents Delivered to Trustee..................10 Section 104. Acts of Holders.........................................10 Section 105. Notices, etc., to Trustee and Company...................12 Section 106. Notice to Holders; Waiver...............................13 Section 107. Conflict with Trust Indenture Act.......................13 Section 108. Effect of Headings and Table of Contents................13 Section 109. Successors and Assigns..................................13 Section 110. Separability Clause.....................................14 Section 111. Benefits of Indenture...................................14 Section 112. Governing Law...........................................14 Section 113. Legal Holidays..........................................14 Section 114. Exemption from Individual Liability.....................14 Section 115. Counterparts............................................15 ARTICLE II. CONVERTIBLE DEBT SECURITY FORMS....................................15 Section 201. Forms Generally.........................................15 Section 202. Form of Trustee's Certificate of Authentication.........15 Section 203. Convertible Debt Securities in Global Form..............16 ARTICLE III. THE CONVERTIBLE DEBT SECURITIES....................................16 Section 301. Amount Unlimited; Issuance in Series....................16 Section 302. Denominations...........................................19 Section 303. Execution, Authentication, Delivery and Dating..........19 Section 304. Temporary Convertible Debt Securities...................21 Section 305. Registration; Registration of Transfer and Exchange.....23 Section 306. Mutilated, Destroyed, Lost and Stolen Convertible Debt Securities..............................................25 Section 307. Payment of Interest; Interest Rights Preserved..........26 Section 308. Persons Deemed Owners...................................27 Section 309. Cancellation............................................28 Section 310. Computation of Interest.................................28 ARTICLE IV. SATISFACTION AND DISCHARGE.........................................28 Section 401. Satisfaction and Discharge of Indenture.................28 Section 402. Application of Trust Money and Government Obligations...29 Section 403. Satisfaction, Discharge and Defeasance of Convertible Debt Securities of any Series...........................30 ARTICLE V. REMEDIES...........................................................32 Section 501. Events of Default.......................................32 Section 502. Acceleration of Maturity; Rescission and Annulment......34 Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................................................35 Section 504. Trustee May File Proofs of Claim........................35 Section 505. Trustee May Enforce Claims without Possession of Convertible Debt Securities.............................36 Section 506. Application of Money Collected..........................36 Section 507. Limitation on Suits.....................................37
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PAGE Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest....................................37 Section 509. Restoration of Rights and Remedies......................37 Section 510. Rights and Remedies Cumulative..........................38 Section 511. Delay or Omission Not Waiver............................38 Section 512. Control by Holders of Convertible Debt Securities.......38 Section 513. Waiver of Past Defaults.................................38 Section 514. Undertaking for Costs...................................39 Section 515. Waiver of Stay or Extension Laws........................39 ARTICLE VI. THE TRUSTEE........................................................39 Section 601. Certain Duties and Responsibilities.....................39 Section 602. Notice of Default.......................................40 Section 603. Certain Rights of Trustee...............................40 Section 604. Not Responsible for Recitals or Issuance of Convertible Debt Securities.........................................41 Section 605. May Hold Convertible Debt Securities....................41 Section 606. Money Held in Trust.....................................41 Section 607. Compensation and Reimbursement..........................42 Section 608. Disqualification; Conflicting Interests.................42 Section 609. Corporate Trustee Required; Eligibility.................43 Section 610. Resignation and Removal; Appointment of Successor.......43 Section 611. Acceptance of Appointment by Successor..................45 Section 612. Merger, Conversion, Consolidation or Succession to Business................................................46 Section 613. Preferential Collection of Claims Against Company.......46 Section 614. Authenticating Agent....................................46 ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..................48 Section 701. Company to Furnish Trustee Names and Addresses of Holders.................................................48 Section 702. Preservation of Information; Communications to Holders..48 Section 703. Reports by Trustee......................................49 Section 704. Reports by Company......................................49 ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..............49 Section 801. Company May Consolidate, etc. Only on Certain Terms.....49 Section 802. Successor Corporation Substituted.......................50 Section 803. Conveyance or Transfer to a Wholly-Owned Restricted Subsidiary..............................................50 ARTICLE IX. SUPPLEMENTAL INDENTURES............................................50 Section 901. Supplemental Indentures Without Consent of Holders......50 Section 902. Supplemental Indentures with Consent of Holders.........51 Section 903. Execution of Supplemental Indentures....................53 Section 904. Effect of Supplemental Indentures.......................53 Section 905. Conformity with Trust Indenture Act.....................53 Section 906. Reference in Convertible Debt Securities to Supplemental Indentures..............................................53 ARTICLE X. COVENANTS..........................................................53 Section 1001. Payment of Principal, Premium and Interest..............53 Section 1002. Maintenance of Office or Agency.........................53 Section 1003. Money for Convertible Debt Securities Payments to Be Held in Trust...........................................54
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PAGE Section 1004 Corporate Existence.....................................55 Section 1005. Maintenance of Properties...............................55 Section 1006. Officer's Certificate as to Default.....................56 Section 1007. Waiver of Certain Covenants.............................56 ARTICLE XI. REDEMPTION OF CONVERTIBLE DEBT SECURITIES...............57 Section 1101. Applicability of Article................................57 Section 1102. Election to Redeem; Notice to Trustee...................57 Section 1103. Selection by Trustee of Convertible Debt Securities to be Redeemed.............................................57 Section 1104. Notice of Redemption....................................58 Section 1105. Deposit of Redemption Price.............................58 Section 1106. Convertible Debt Securities Payable on Redemption Date..59 Section 1107. Convertible Debt Securities Redeemed in Part............59 ARTICLE XII. CONVERSION OF CONVERTIBLE DEBT SECURITIES..........................59 Section 1201. Conversion Privilege....................................59 Section 1202. Conversion Procedure....................................60 Section 1203. Fractional Shares.......................................61 Section 1204. Taxes on Conversion.....................................61 Section 1205. Company to Provide Stock................................61 Section 1206. Adjustment of Conversion Price..........................62 Section 1207. No Adjustment...........................................65 Section 1208. Other Adjustments.......................................65 Section 1209. Adjustments for Tax Purposes............................65 Section 1210. Adjustments by the Company..............................65 Section 1211. Notice of Adjustment....................................65 Section 1212. Notice of Certain Transactions..........................66 Section 1213. Effect of Reclassifications, Consolidations, Mergers or Sales on Conversion Privilege...........................66 Section 1214. Trustee's Disclaimer....................................67 ARTICLE XIII. SUBORDINATION OF CONVERTIBLE DEBT SECURITIES......................67 Section 1301. Agreement to Subordinate................................67 Section 1302. No Payment on Convertible Debt Securities if Senior Debt in Default.........................................68 Section 1303. Distribution on Acceleration of Convertible Debt Securities; Dissolution and Reorganization; Subrogation.............................................69 Section 1304. Reliance by Senior Debt on Subordination Provisions.....72 Section 1305. No Waiver of Subordination Provisions...................72 Section 1306. Trustee's Relation to Senior Debt.......................72 Section 1307. Other Provisions Subject Hereto.........................73 ARTICLE XIV. REPAYMENT AT THE OPTION OF HOLDERS.................................73 Section 1401. Applicability of Article................................73 Section 1402. Repayment of Convertible Debt Securities................73 Section 1403. Exercise of Option; Notice..............................74 Section 1404. Election of Repayment by Remarketing Entities...........74 Section 1405. Securities Payable on the Repayment Date................74 ARTICLE XV. MEETINGS OF HOLDERS OF CONVERTIBLE DEBT SECURITIES.................75 Section 1501. Purposes for Which Meetings May Be Called...............75
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PAGE Section 1502. Call, Notice and Place of Meetings......................75 Section 1503. Persons Entitled to Vote at Meetings....................75 Section 1504. Quorum; Action..........................................75 Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.............................................76 Section 1506. Counting Votes and Recording Action of Meetings.........77 ARTICLE XVI. DEFEASANCE.........................................................78 Section 1601. Termination of Company's Obligations....................78 Section 1602. Repayment to Company....................................79 Section 1603. Indemnity for Government Obligations....................79
-iv- 7 INDENTURE (the "Indenture") dated as of ___________, by and between FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation (hereinafter, the "Company"), having its principal place of business at 17911 Von Karman Avenue, Irvine, California 92614 and __________________________________ (hereinafter, the "Trustee"), having its Corporate Trust Office at _______________________________________________. RECITALS OF THE COMPANY The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its convertible debentures, notes, bonds and other evidences of indebtedness (hereinafter, the "Convertible Debt Securities"). All things necessary have been done to make this Indenture a valid agreement of the Company, in accordance with its terms. NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Convertible Debt Securities of any series created and issued on or after the date hereof by the Holders thereof, it is mutually covenanted and agreed, for the benefit of all Holders of such Convertible Debt Securities or of any such series, as follows: ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 101. Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires: (1) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular; (2) all other terms used herein which are defined in the Trust Indenture Act or by Commission rule or regulation under the Trust Indenture Act, either directly or by reference therein, as in force at the date as of which this instrument was executed, except as provided in Section 905, have the meanings assigned to them therein; (3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; and (4) the words "hereinafter," "herein", "hereof" and "hereunder" and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision. 1 8 Certain terms, used principally in Article VI, are defined in that Article. "Act" when used with respect to any Holder has the meaning specified in Section 104. "Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, "control" when used with respect to any specified Person means the power to direct 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. "Authenticating Agent" means any Person authorized by the Trustee to act on behalf of the Trustee to authenticate Convertible Debt Securities. "Authorized Newspapers" means nationally-recognized newspapers customarily published on each Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in the City of New York, New York, and the City of Los Angeles, California, respectively, or in the financial communities of such places. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same cities meeting the foregoing requirements and in each case on any Business Day. "Board of Directors" means either the board of directors of the Company, or the executive or any other committee of that board duly authorized to act in respect hereof. "Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee. Where any provision of this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Convertible Debt Securities and the forms and terms thereof), such action may be taken by any committee of the Board or the Company or any officer or employee of the Company authorized to take such action by a Board Resolution. "Business Day" means any day which is not a Saturday or Sunday and which is not a legal holiday or a day on which banking institutions, trust companies, or securities exchange, as the case may be, are authorized or obligated by law or executive order to close. "Capital Stock" means any and all shares, interests, participations, rights, or other equivalents (however designated) of equity interests in any entity, including, without limitation, corporate stock and partnership interests. "Commission" means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on such date. "Common Stock" means the common stock of the Company as the same exists at the date of the execution of this Indenture, or as such stock may be constituted from time to time. 2 9 "Company" means the Person named as the "Company" in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Company" shall mean such successor Person. "Company Request" and "Company Order" mean, respectively, except as otherwise provided in this Indenture, a written request or order signed in the name of the Company by the Chairman of the Board and Chief Executive Officer, the Chief Operating Officer, the President or a Vice President (any references to a Vice President of the Company herein shall be deemed to include any Vice President of the Company whether or not designated by a number or word or words added before or after the title "Vice President"), the Chief Financial Officer and Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company or by another officer of the Company duly authorized to sign by a Board Resolution, and delivered to the Trustee. "Conversion Agent" means any Person authorized by the Company to convert the principal amount of Convertible Debt Securities (or any portion thereof that is an integral multiple of $1,000) into shares of Company's Common Stock, in accordance with Article XII of this Indenture. "Conversion Date" means the date on which a Holder of Convertible Debt Securities satisfies all the requirements, specified in the convertible Debt Securities, to convert the Convertible Debt Securities to shares of the Company's Common Stock in accordance with Article XII of this Indenture. "Conversion Price" means, with regard to the conversion of Convertible Debt Securities to the Company's Common Stock, the conversion price in effect on the Conversion Date. The initial Conversion Price is stated in the Convertible Debt Securities and is subject to adjustment as provided for in Article XII of this Indenture. "Conversion Shares" means the shares of Common Stock issuable upon a conversion of the Convertible Debt Securities pursuant to Article XII of this Indenture. "Convertible Debt Securities" has the meaning stated in the first recital of this Indenture and more particularly means any Convertible Debt Securities authenticated and delivered under this Indenture. "Corporate Trust Office" means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of original execution of this Indenture is located at _________________________ _______________________________________, Attention: ________________________, except that, with respect to presentation of the Convertible Debt Securities for payment or registration of transfers or exchanges and the location of the Security Registrar, such term means the office or agency of the Trustee at which at any particular time its corporate agency business shall be conducted, which at the date of original execution of this Indenture is located at _____________ ______________________________________. "Corporation" includes corporations, associations, companies and business trusts. 3 10 "Daily Market Price" means the price of a share of the Company's Common Stock on the relevant date, determined (i) on the basis of the last reported sale price of the Common Stock as reported on the New York Stock Exchange (hereinafter, "NYSE") or if the Common Stock is not then listed on the NYSE, as reported on such other national securities exchange upon which the Common Stock is listed; or (ii) if there is no such reported sale on the day in question, on the basis of the average of the trading prices as reported on one Trading Day before the day in question and one Trading Day after the day in question; or (iii) if the Common Stock is not listed on the NYSE or any such other national securities exchange, on the basis of the average of the high bid and low asked quotations on the day in question in the over-the-counter market, as reported by the National Association of Securities Dealers Automated Quotation System, or if not so quoted, as reported by the National Quotation Bureau, Incorporated, or a similar organization. "Defaulted Interest" has the meaning specified in Section 307. "Depositary" means, with respect to the Convertible Debt Securities of any series issuable or issued in the form of a Global Security, the Person designated as Depositary by the Company pursuant to Section 301 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Depositary" shall mean or include each person who is then a Depositary hereunder, and if at any time there is more than one such Person, "Depositary" as used with respect to the Convertible Debt Securities of any such series shall mean the Depositary with respect to the Convertible Debt Securities of that series. "Designated Senior Debt" means any Senior Debt which, at the date of determination, has an aggregate principal amount outstanding of, or commitments to lend up to, at least $___________ and is specifically designated in the instrument evidencing or governing such Senior Debt as "Designated Senior Debt" for purposes of this Indenture (provided, however, that such instrument may place limitations and conditions on the right of such Senior Debt to exercise the rights of Designated Senior Debt). "Distribution Date" means, within regard to the adjustment of the Conversion Price, the date for the distribution to the Holders of Rights of separate certificates evidencing such Rights. "Distribution Record Date" means, in the event that the Company, by dividend or otherwise, distributes cash to Holders of its Common Stock (including any distributions of cash out of current or retained earnings of the Company, but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to Section 1206(c)), the date fixed by the Company for determining the Holders entitled to such distribution. "Dollar" or "$" means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts. "Event of Default" has the meaning specified in Section 501. "Excess Payment" means the excess of (x) the aggregate of the cash and fair market value of other consideration paid by the Company or any of its subsidiaries with respect to the shares acquired in a tender offer or other negotiated transaction over (y) the Daily Market Price 4 11 of such acquired shares on the Trading Day immediately after giving effect to the completion of such tender offer or other negotiated transaction. "GAAP" means, as of the date of any determination with respect thereto, generally accepted accounting principles as used by the Financial Accounting Standards Board and/or the American Institute of Certified Public Accountants, consistently applied and maintained throughout the periods indicated. "Global Exchange Agent" has the meaning specified in Section 304. "Global Exchange Date" has the meaning specified in Section 304. "Global Security" means a Convertible Debt Security issued to evidence all or part of a series of Convertible Debt Securities in accordance with Section 303. "Government Obligations" means, in respect of any series of Convertible Debt Securities, securities of (i) the United States Government and/or the government of any State, possession, or jurisdiction of the United States or (ii) government agencies backed by the full faith and credit of such aforementioned governments. "Holder", with respect to a Registered Security, means a Person in whose name such Registered Security is registered in the Security Register. "Indebtedness" means (i) all items of indebtedness or liability (except capital and surplus) which in accordance with GAAP would be included in determining total liabilities as shown on the liability side of a balance sheet as at the date as of which indebtedness is to be determined, (ii) indebtedness secured by any Mortgage existing on property owned subject to such Mortgage, whether or not the indebtedness secured thereby shall have been assumed, and (iii) guarantees, endorsements (other than for purposes of collection) and other contingent obligations in respect of, or to purchase or otherwise acquire, indebtedness of others, unless the amount thereof is included in indebtedness under the preceding clause (i) or (ii); provided, however, that any obligations or guarantees of obligations in respect of lease rentals, whether or not such obligations or guarantees of obligations would be included as liabilities on a consolidated balance sheet of the Company and its Restricted Subsidiaries, shall not be included in Indebtedness. "Indenture" means this instrument as originally executed or as it may from time to time be supplemented, amended or restated by or pursuant to one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, unless the context otherwise requires, shall include the terms of a particular series of Convertible Debt Securities established as contemplated by Section 301. "Interest", when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity. "Interest Payment Date", with respect to any Convertible Debt Security, means the Stated Maturity of an installment of interest on such Convertible Debt Security. 5 12 "Maturity", when used with respect to any Convertible Debt Security, means the date on which the principal of such Convertible Debt Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption, repayment at the option of the Holder or otherwise. "Mortgage" means and includes any mortgage, pledge, lien, security interest, conditional sale or other title retention agreement or other similar encumbrance. "Officers' Certificate" means a certificate signed by the Chairman of the Board and Chief Executive Officer, the Chief Operating Officer, the President or a Vice President, and by the Chief Financial Officer and Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee. "Opinion of Counsel" means a written opinion of counsel, who may (except as otherwise expressly provided in this Indenture) be an employee of or counsel for the Company, or who may be other counsel acceptable to the Trustee, which is delivered to the Trustee. "Original Issue Discount Security" means any Convertible Debt Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502. "Outstanding", when used with respect to Convertible Debt Securities, means, as of the date of determination, all Convertible Debt Securities theretofore authenticated and delivered under this Indenture, except: (i) Convertible Debt Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Convertible Debt Securities or portions thereof for whose payment or redemption money or Government Obligations in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Convertible Debt Securities; provided, however, that if such Convertible Debt Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (iii) Convertible Debt Securities in exchange for or in lieu of which other Convertible Debt Securities have been authenticated and delivered, or which have been paid, pursuant to this Indenture; provided, however, that in determining whether the Holders of the requisite principal amount of Convertible Debt Securities Outstanding have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Convertible Debt Securities owned by the Company or any other obligor upon the Convertible Debt Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon such request, demand, authorization, direction, notice, consent or waiver, only Convertible Debt Securities which the Trustee knows to be so owned shall be so disregarded. Convertible Debt 6 13 Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee's right so to act with respect to such Convertible Debt Securities and that the pledgee is not the Company or any other obligor upon the Convertible Debt Securities or any Affiliate of the Company or of such other obligor. "Paying Agent" means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any Convertible Debt Securities on behalf of the Company. "Payment Blockage Notice" and "Payment Blockage Period's have the meaning specified in Section 1302. "Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof. "Place of Payment", when used with respect to the Convertible Debt Securities of any series means any place where the principal of (and premium, if any) and interest on the Convertible Debt Securities of that series are payable as specified as contemplated by Section 301, and/or any place where a Person holding or entitled to such Convertible Debt Securities may transfer, exchange, or present them for conversion pursuant to Section 1002. "Predecessor Security" of any particular Convertible Debt Security means every previous Convertible Debt Security evidencing all or a portion of the same debt as that evidenced by such particular Convertible Debt Security; and, for the purposes of this definition, any Convertible Debt Security authenticated and delivered under Section 306 in lieu of a lost, destroyed or stolen Convertible Debt Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Convertible Debt Security. "Purchase Date" means, in the event that the Company or any Subsidiary consummates a tender offer or other negotiated transaction for all or any portion of the Company's Common Stock, the date of payment of such negotiated transaction consideration or expiration of such tender offer, as the case may be. "Redemption Date", when used with respect to any Convertible Debt Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture. "Redemption Price", when used with respect to any Convertible Debt Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture. "Registered Security" means any Convertible Debt Security in the form of Registered Securities established pursuant to Section 201 which is registered in the Security Register, or following a conversion of Convertible Debt Securities to the Company's Common Stock, any Common Stock so registered. "Regular Record Date" for the interest payable on any Interest Payment Date on the Registered Securities of any series means the date specified for that purpose as contemplated by Section 301. 7 14 "Remarketing Entity", when used with respect to Convertible Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity, means any person designated by the Company to purchase any such Convertible Debt Securities. "Repayment Date", when used with respect to any Convertible Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the date fixed for such repayment pursuant to this Indenture. "Repayment Price", when used with respect to any Convertible Debt Security to be repaid upon exercise of an option for repayment by the Holder, means the price at which it is to be repaid pursuant to this Indenture. "Representative" means the trustee, agent or representative (if any) for an issue of Senior Debt. "Responsible Officer" when used with respect to the Trustee, means any officer of the Trustee assigned by it to administer its corporate trust matters. "Rights" means rights or warrants, distributed by the Company, to subscribe for additional shares of the Company's Capital Stock, other than the Common Stock referred to in this Indenture. "Security Register" and "Security Registrar" have the respective meanings specified in Section 305. "Senior Debt" means the principal of, interest on and other amounts due on Indebtedness of the Company, whether outstanding on the date of the Indenture or thereafter created, incurred, assumed, or guaranteed by the Company; unless, in the instrument creating or evidencing or pursuant to which Indebtedness is outstanding, it is expressly provided that such Indebtedness is not senior in right of payment to the Convertible Debt Securities. Senior Debt includes, with respect to the obligations described above, interest accruing, pursuant to the terms of such Senior Debt, on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not post-filing interest is allowed in such proceeding, at the rate specified in the instrument governing the relevant obligation. Notwithstanding anything to the contrary in the foregoing, Senior Debt shall not include: (a) Indebtedness of or amounts owed by the Company for compensation to employees, or for goods, services or materials purchased in the ordinary course of business; (b) Indebtedness of the Company to a Subsidiary of the Company or any officer, director or employee of the Company or any Subsidiary thereof, or (c) any liability for Federal, state, local or other taxes owed or owing by the Company. "Special Record Date" for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 307. "Stated Maturity", when used with respect to any Convertible Debt Security or any installment of interest thereon, means the date specified in such Convertible Debt Security as the fixed date on which the principal of such Convertible Debt Security or such installment is due and payable. 8 15 "Subsidiary" means any corporation more than 50% of the outstanding shares of Voting Stock, except for directors' qualifying shares, of which shall at the time be owned, directly or indirectly, by the Company or by one or more of the Subsidiaries, or by the Company and one or more other Subsidiaries. "Trading Day" means (a) if the applicable security is listed or admitted for trading on the New York Stock Exchange (hereinafter, "NYSE") or another national securities exchange, a day on which the NYSE or another national securities exchange is open for business, or (b) if the applicable security is not so listed or admitted for trading, any day other than a Saturday or Sunday or a day on which banking institutions or trust companies are authorized or obligated by law or executive order to close. "Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at the date as of which this instrument was executed, except as provided in Section 905. "Trustee" means the Person named as the "Trustee" in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter "Trustee" shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, "Trustee" as used with respect to the Convertible Debt Securities of any series shall mean the Trustee with respect to Convertible Debt Securities of that series. "United States" means the United States of America (including the District of Columbia) and its possessions and jurisdictions. "Voting Stock", as applied to the stock (or the equivalent thereof) of any corporation, means stock (or the equivalent thereof) of any class or classes, however designated, entitled in the ordinary course to vote in an election of directors of such corporation, other than stock (or such equivalent) having such power only by reason of the happening of a contingency. Section 102. Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee, if so requested by the Trustee, an Officers' Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; 9 16 (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. Section 103. Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents. Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate or opinion is based is erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinions or representations with respect to such matters is erroneous. Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Section 104. Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee, and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the "Act" of the Holders signing such instrument or instruments and so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or the holding by any Person of a Convertible Debt Security, shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section. The 10 17 record of any meeting of Holders of Convertible Debt Securities shall be proved in the manner provided in Section 1606. (b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any manner which the Trustee deems sufficient. (c) The ownership of Registered Securities shall be proved by the Security Register. (d) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Convertible Debt Security shall bind every future holder of the same Convertible Debt Security and the Holder of every Convertible Debt Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, suffered or omitted by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon such Convertible Debt Security. (e) For purposes of determining the principal amount of Outstanding Convertible Debt Securities of any series the Holders of which are required, requested or permitted to give any request, demand, authorization, direction, notice, consent, waiver or take any other Act under this Indenture, each Original Issue Discount Security shall be deemed to have the principal amount determined by the Trustee that could be declared to be due and payable pursuant to the terms of such Original Issue Discount Security as of the date there is delivered to the Trustee and, where it is hereby expressly required, to the Company, such Act by Holders of the required aggregate principal amount of the Outstanding Convertible Debt Securities of such series. (f) The Company may set any day as a record date for the purpose of determining the Holders of Outstanding Convertible Debt Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Convertible Debt Securities of such series, provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Convertible Debt Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date (as defined below) by Holders of the requisite principal amount of Outstanding Convertible Debt Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Convertible Debt Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each 11 18 Holder of Convertible Debt Securities of the relevant series in the manner set forth in Section 106. The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding Convertible Debt Securities of any series entitled to join in the giving or making of (i) any notice of an Event of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any request to institute proceedings referred to in Section 507(2), or (iv) any direction referred to in Section 512, in each case with respect to Convertible Debt Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Convertible Debt Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Convertible Debt Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Convertible Debt Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company's expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Convertible Debt Securities of the relevant series in the manner set forth in Section 106. With respect to any record date set pursuant to this Section, the party hereto which sets such record dates may designate any day as the "Expiration Date" and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Convertible Debt Securities of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Section 105. Notices, etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided), if in writing and sent by certified mail or by courier to the Trustee at its Corporate Trust Office, or 12 19 (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent by certified mail or by courier to the Company addressed to the attention of its Corporate Secretary at the address of its principal office specified in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company. Section 106. Notice to Holders; Waiver. Except as otherwise expressly provided herein, where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a Registered Security affected by such event, at such Holder's address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In case, by reason of the suspension of or irregularities in regular mail service or for any other reason, it shall be impossible or impracticable to mail notice of any event to Holders of Registered Securities when said notice is required to be given pursuant to any provision of this Indenture or of the Convertible Debt Securities, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice. In any case where notice to Holders of Registered Securities is to be given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. Section 107. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof which is required to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required provision shall control. Section 108. Effect of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. Section 109. Successors and Assigns. All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. 13 20 Section 110. Separability Clause. In case any provision in this Indenture or in the Convertible Debt Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 111. Benefits of Indenture. Nothing in this Indenture or in the Convertible Debt Securities shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 112. Governing Law. This Indenture and the Convertible Debt Securities shall be governed by and construed in accordance with the laws of the State of Delaware. Section 113. Legal Holidays. In any case where any Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity of any Convertible Debt Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or of the Convertible Debt Securities) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or at the Stated Maturity, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repayment Date or Stated Maturity, as the case may be. Section 114. Exemption from Individual Liability. No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Convertible Debt Security, or for any claim based thereon or otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation, either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations of the Company, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company or of any successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Convertible Debt Securities or implied therefrom; and that any and all such personal liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Convertible Debt Securities, 14 21 are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue of such Convertible Debt Securities. Section 115. Counterparts. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture. ARTICLE II. CONVERTIBLE DEBT SECURITY FORMS Section 201. Forms Generally. The Registered Securities of each series shall be in substantially the form (including temporary or permanent global form) as shall be established in or pursuant to a Board Resolution or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may be required to comply with the rules of any securities exchange, or as may, consistently herewith, be determined by the officers executing such Convertible Debt Securities, as evidenced by their signatures on the Convertible Debt Securities. If the form of Convertible Debt Securities of any series (including any such Global Security) is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Corporate Secretary or an Assistant Corporate Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication and delivery of such Convertible Debt Securities. The definitive Convertible Debt Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the officers executing such Convertible Debt Securities, as evidenced by the execution of such Convertible Debt Securities. Section 202. Form of Trustee's Certificate of Authentication. This is one of the Convertible Debt Securities, of the series designated herein, described in the within-mentioned Indenture. _______________________________ as Trustee By_____________________________ Authorized Officer 15 22 Section 203. Convertible Debt Securities in Global Form. If Convertible Debt Securities of a series are issuable in whole or in part in global form, as specified as contemplated by Section 301, then, notwithstanding clause (9) of Section 301 and the provisions of Section 302, such Global Security shall represent such of the outstanding Convertible Debt Securities of such series as shall be specified therein and may provide that it shall represent the aggregate amount of Outstanding Convertible Debt Securities from time to time endorsed thereon and that the aggregate amount of Outstanding Convertible Debt Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Convertible Debt Securities represented thereby shall be made in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or Section 304. The provisions of the last sentence of Section 303(g) shall apply to any Convertible Debt Securities represented by a Convertible Debt Security in global form if such Convertible Debt Security was never issued and sold by the Company and the Company delivers to the Trustee the Convertible Debt Security in global form together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with respect to the reduction in the principal amount of Convertible Debt Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303(g). Global Securities shall be issued in registered form and in permanent form. ARTICLE III. THE CONVERTIBLE DEBT SECURITIES Section 301. Amount Unlimited; Issuance in Series. The aggregate principal amount of Convertible Debt Securities which may be authenticated and delivered under this Indenture is unlimited. The Convertible Debt Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officers' Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Convertible Debt Securities of any series: (1) the title of the Convertible Debt Securities of the series (which shall distinguish the Convertible Debt Securities of the series from all other Convertible Debt Securities); (2) the limit, if any, upon the aggregate principal amount of the Convertible Debt Securities of the series which may be authenticated and delivered under this Indenture (except for Convertible Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Convertible Debt Securities of the series pursuant to Sections 304, 305, 306, 906, 1107 or 1503 and except for any Convertible Debt Securities which, pursuant to Section 303, are deemed never to have been authenticated and delivered hereunder); 16 23 (3) the date or dates on which the principal and premium, if any, of the Convertible Debt Securities of the series are payable; (4) the rate or rates, if any, at which the Convertible Debt Securities of the series shall bear interest, or the method or methods by which such rate or rates may be determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable, the Regular Record Date for the interest payable on any Registered Security on any Interest Payment Date and the circumstances, if any, in which the Company may defer interest payments; (5) the place or places where, subject to the provisions of Section 1002, the principal of (and premium, if any) and interest on Convertible Debt Securities of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Convertible Debt Securities of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Convertible Debt Securities of the series and this Indenture may be served and where notices to Holders pursuant to Section 106 will be published; (6) if applicable, the period or periods within which or the date or dates on which, the price or prices at which and the terms and conditions upon which Convertible Debt Securities of the series may be redeemed, in whole or in part, at the option of the Company; (7) the manner of calculating the Conversion Price and any adjustments thereto, events or circumstances that may result in adjustments of the Conversion Price, the amount of any premium payable in connection with conversion, the date or dates on which conversion may be made, and the places at which the Convertible Debt Securities may be exchanged for shares of Common Stock (or for shares of Common Stock and certificates evidencing the unconverted portion of the Convertible Debt Securities) and cash may be received in lieu of fractional shares of Common Stock; (8) events or circumstances that will constitute Events of Default or give the holders of Convertible Debt Securities the right to accelerate maturity of the Convertible Debt Securities to the extent not already set forth herein; (9) the obligation, if any, of the Company to redeem, repay or purchase Convertible Debt Securities of the series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions upon which Convertible Debt Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation; (10) whether the Convertible Debt Securities of the series shall be issued in whole or in part in the form of a Global Security or Securities and, in such case, the Depositary and Global Exchange Agent for such Global Security or Securities, whether such global form shall be permanent or temporary and, if applicable, the Global Exchange Date; (11) if Convertible Debt Securities of the series are to be issuable initially in the form of a temporary Global Security, the circumstances under which the temporary Global Security can be exchanged for definitive Convertible Debt Securities and whether the definitive 17 24 Convertible Debt Securities will be in global form and whether interest in respect of any portion of such Global Security payable in respect of an Interest Payment Date prior to the Global Exchange Date shall be paid to any clearing organization with respect to a portion of such Global Security held for its account and, in such event, the terms and conditions (including any certification requirements) upon which any such interest payment received by a clearing organization will be credited to the Persons entitled to interest payable on such Interest Payment Date if other than as provided in this Article III; (12) the denominations in which any Registered Securities of the series shall be issuable, if other than denominations of $1,000 and any integral multiple thereof; (13) if other than the principal amount thereof, the portion of the principal amount of Convertible Debt Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502; (14) if the amount of payments of principal of (and premium, if any) or interest on the Convertible Debt Securities of the series may be determined with reference to an index, the manner in which such amounts shall be determined; (15) any other covenant or warranty included for the benefit of the Convertible Debt Securities of the series in addition to (and not inconsistent with) those set forth herein for the benefit of Convertible Debt Securities of all series, or any other covenant or warranty included for the benefit of Convertible Debt Securities of the series in lieu of any covenant or warranty set forth herein for the benefit of Convertible Debt Securities of all series, or any provision that any covenant or warranty set forth herein for the benefit of Convertible Debt Securities of all series shall not be for the benefit of Convertible Debt Securities of such series, or any combination of such covenants, warranties or provisions and the applicability, if any, of the provisions of Section 1010 to such covenants and warranties; (16) the terms and conditions, if any, pursuant to which the Company's obligations under this Indenture may be terminated through the deposit of money or Government Obligations as provided in Articles IV and XVII; (17) the Person or Persons who shall be Security Registrar for the Convertible Debt Securities of such series if other than the Trustee, and the place or places where the Security Register for such series shall be maintained and the Person or Persons who will be the initial Paying Agent or Agents, if other than the Trustee; and (18) any other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture). All Convertible Debt Securities of any one series shall be substantially identical except, in the case of Registered Securities, as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers' Certificate or in any such indenture supplemental hereto. Convertible Debt Securities of any particular series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different 18 25 rates of interest, if any, or different methods by which rates of interest may be determined, with different dates on which such interest may be payable and with different Redemption or Repayment Dates; provided, however, that all Convertible Debt Securities be denominated and payable in only U.S. dollars. If any of the terms of a series of Convertible Debt Securities are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers' Certificate setting forth the terms of the series. Section 302. Denominations. Convertible Debt Securities of each series shall be issuable in such form and denominations as shall be specified in the form of Convertible Debt Security for such series approved or established pursuant to Section 201 or in the Officers' Certificate delivered pursuant to Section 301. In the absence of any specification with respect to the Convertible Debt Securities of any series, the Registered Securities of such series, if any, shall be issuable in denominations of $1,000 and any integral multiple thereof. Section 303. Execution, Authentication, Delivery and Dating. (a) The Convertible Debt Securities shall be executed on behalf of the Company by its Chairman of the Board and Chief Executive Officer, the Chief Operating Officer, the President or a Vice President, and by its Treasurer or one of its Assistant Treasurers or its Secretary or one of its Assistant Secretaries under its corporate seal reproduced thereon. The signature of any of these officers on the Convertible Debt Securities may be manual or facsimile. Convertible Debt Securities bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Convertible Debt Securities of any series or did not hold such offices at the date of such Convertible Debt Securities. (b) At any time and from time to time after the execution and delivery of this Indenture, Convertible Debt Securities of any series may be executed by the Company and delivered to the Trustee for authentication, and, except as otherwise provided in this Article III, shall thereupon be authenticated and delivered by the Trustee upon Company Order, without any further action by the Company; provided, however, that in the case of a temporary Global Security, only if the Company or its agent shall have received the certification required pursuant to Sections 304(b)(iii) and (iv), unless such certification shall have been provided earlier pursuant to section 304(b)(v) hereof, and only if the Company has no reason to know that such certification is false. To the extent authorized in or pursuant to a Board Resolution and set forth in an Officers' Certificate, or established in one or more indentures supplemental hereto, such written Company Order may be given by any one officer or employee of the Company, may be electronically transmitted, and may provide instructions as to registration of holders, principal amounts, rates of 19 26 interest, maturity dates and other matters contemplated by such Board Resolution and Officers' Certificate or supplemental indenture to be so instructed in respect thereof. Before authorizing and delivering the first Convertible Debt Securities of any series (and upon request of the Trustee thereafter), the Company shall deliver to the Trustee (i) the certificates called for under Sections 201 and 301 hereof and (ii) an Opinion of Counsel described in the next sentence. In authenticating such Convertible Debt Securities, and accepting the additional responsibilities under this Indenture in relation to any such Convertible Debt Securities, the Trustee shall be entitled to receive, prior to the initial authentication of such Convertible Debt Securities, and (subject to Section 601) shall be fully protected in relying upon: (i) a Board Resolution relating thereto and, if applicable, an appropriate record of any action taken pursuant to such resolution certified by the Secretary or an Assistant Secretary of the Company; (ii) an executed supplemental indenture, if any, relating thereto; (iii) an Officers' Certificate setting forth the form and terms of the Convertible Debt Securities of such series, pursuant to Sections 201 and 301 and stating that all conditions precedent provided for in this Indenture relating to the issuance of such Convertible Debt Securities have been complied with; and (iv) an Opinion of Counsel stating (A) that the form of such Convertible Debt Securities has been established in or pursuant to a Board Resolution or by a supplemental indenture as permitted by Section 201 in conformity with the provisions of this Indenture; (B) that the terms of such Convertible Debt Securities have been established in or pursuant to a Board Resolution or by a supplemental indenture as permitted by Section 301 in conformity with the provisions of this Indenture; and (C) that such Convertible Debt Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally and the application of general principles of equity. (c) If the Company shall establish pursuant to Section 301 that the Convertible Debt Securities of a series are to be issued in whole or in part in the form of one or more Global Securities, then the Company shall execute and the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or more Global Securities in permanent or temporary form that (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate principal amount of the Outstanding Convertible Debt Securities of such series to be represented by one or more Global Securities, (ii) shall be registered in the name of the Depositary for such Global Security or 20 27 Securities or the nominee of such Depositary and (iii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary's instructions. (d) The Trustee shall have the right to decline to authenticate and deliver any Convertible Debt Securities under this Section 303 if the issuance of such Convertible Debt Securities will adversely affect the Trustee's own rights, duties or immunities under the Convertible Debt Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee. (e) Each Registered Security shall be dated the date of its authentication. (f) No Convertible Debt Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Convertible Debt Security a certificate of authentication substantially in the form provided for herein executed by the Trustee, and such certificate upon any Convertible Debt Security shall be conclusive evidence, and the only evidence, that such Convertible Debt Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Convertible Debt Security or portion thereof shall have been duly authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Convertible Debt Security to the Trustee for cancellation as provided in Section 309 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Convertible Debt Security or portion thereof has never been issued and sold by the Company, for all purposes of this Indenture such Convertible Debt Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture. (g) Each Depositary designated pursuant to Section 301 for a Global Security in registered form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Securities Exchange Act of 1934 and any other applicable statute or regulation. Section 304. Temporary Convertible Debt Securities. (a) Pending the preparation of definitive Convertible Debt Securities of any series, the Company may execute, and upon receipt of documents required by Sections 301 and 303, together with a Company Order, the Trustee shall authenticate and deliver, temporary Convertible Debt Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any denomination, substantially of the tenor and terms of the definitive Convertible Debt Securities in lieu of which they are issued in registered form, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Convertible Debt Securities may determine, as evidenced by their signatures on such Convertible Debt Securities. (b) Unless otherwise provided pursuant to Section 301: (i) Except in the case of temporary Convertible Debt Securities in global form, if temporary Convertible Debt Securities of any series are issued, the Company will cause definitive Convertible Debt Securities of such series to be prepared 21 28 without unreasonable delay. After the preparation of definitive Convertible Debt Securities of such series, the related temporary Convertible Debt Securities shall be exchangeable for such definitive Convertible Debt Securities upon surrender of the temporary Convertible Debt Securities of such series at the office or agency of the Company in the Place of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Convertible Debt Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Convertible Debt Securities of the same series of like tenor and terms and of authorized denominations. (ii) If Convertible Debt Securities of any series are issued in temporary global form, any such temporary Global Security shall, unless otherwise provided pursuant to Section 301, be delivered to the Depositary for the benefit of __________________, for credit to the respective accounts of the beneficial owners of such Convertible Debt Securities (or to such other accounts as they may direct). (iii) Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary Global Security (the "Global Exchange Date"), the Company shall deliver definitive Convertible Debt Securities to the Trustee or the agent appointed by the Company pursuant to Section 301 to effect the exchange of the temporary Global Security for definitive Convertible Debt Securities (the "Global Exchange Agent"), in an aggregate principal amount equal to the principal amount of such temporary Global Security, executed by the Company. On or after the Global Exchange Date, such temporary Global Security shall be surrendered by the Depositary to the Global Exchange Agent, to be exchanged, in whole or from time to time in part, for definitive Convertible Debt Securities without charge and the Trustee or the Global Exchange Agent, if authorized by the Trustee pursuant to Section 614, shall authenticate and deliver, in exchange for each portion of such temporary Global Security, an equal aggregate principal amount of definitive Convertible Debt Securities of the same series of authorized denominations and of like tenor and terms as the portion of such temporary Global Security to be exchanged. Upon any exchange of a part of such temporary Global Security for definitive Convertible Debt Securities, the portion of the principal amount and any interest thereon so exchanged shall be endorsed by the Global Exchange Agent on a schedule to such temporary Global Security, whereupon the principal amount and interest payable with respect to such temporary Global Security shall be reduced for all purposes by the amount so exchanged and endorsed. The definitive Convertible Debt Securities to be delivered in exchange for any such temporary Global Security shall be in registered form or global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof. (iv) The interest of a beneficial owner of Convertible Debt Securities of a series in a temporary Global Security shall be exchanged for definitive Convertible Debt Securities of the same series and of like tenor and terms following the Global Exchange Date when the account holder instructs __________________ to request such exchange on such account holder's behalf. Unless otherwise specified in such temporary Global Security, any such exchange shall be made free of charge to the beneficial owners 22 29 of such temporary Global Security, except that a Person receiving definitive Convertible Debt Securities must bear the cost of insurance, postage, transportation and the like in the event that such Person does not take delivery of such definitive Convertible Debt Securities in person at the offices of __________________. (v) Until exchanged in full as hereinabove provided, the temporary Convertible Debt Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Convertible Debt Securities of the same series and of like tenor and terms authenticated and delivered hereunder. Any interest so received by __________________ and not paid as herein provided prior to the Global Exchange Date shall be returned to the Global Exchange Agent which, upon expiration of 2 years after such Interest Payment Date, shall repay such interest to the Company in accordance with Section 1003. Section 305. Registration; Registration of Transfer and Exchange. The Company shall cause to be kept at one of the offices or agencies to be maintained by the Company in accordance with the provisions of this Section 305 and Section 1002, with respect to the Convertible Debt Securities of each series which are Registered Securities, a register (herein sometimes referred to as the "Security Register") in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. Pursuant to Section 301, the Company shall appoint, with respect to Convertible Debt Securities of each series which are Registered Securities, a "Security Registrar" for the purpose of registering such Convertible Debt Securities and transfers and exchanges of such Convertible Debt Securities as herein provided. Upon surrender for registration of transfer of any Registered Security of any series at the office or agency of the Company maintained for such purpose, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series of any authorized denomination or denominations, of like tenor and terms and aggregate principal amount. At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized form and denomination, of like tenor and terms and aggregate principal amount, upon surrender of the Registered Securities to be exchanged at such office or agency. Whenever any Convertible Debt Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Convertible Debt Securities which the Holder making the exchange is entitled to receive. If at any time the Depositary for the Convertible Debt Securities of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Convertible Debt Securities of such series or if at any time the Depositary for the Convertible Debt Securities of such series shall no longer be eligible under Section 303(h), the Company shall appoint a successor Depositary with respect to the Convertible Debt Securities of such series. If a successor Depositary for the Convertible Debt Securities of such series is not appointed by the 23 30 Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election pursuant to Section 301(8) shall no longer be effective with respect to the Convertible Debt Securities of such series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Convertible Debt Securities of such series, will authenticate and deliver, Convertible Debt Securities of such series in definitive form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. The Company may at any time and in its sole discretion determine that the Convertible Debt Securities of any series issued in the form of one or more Global Securities shall no longer be represented by such Global Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Convertible Debt Securities of such series, will authenticate and deliver, Convertible Debt Securities of such series in definitive form and in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange for such Global Security or Securities. If specified by the Company pursuant to Section 301 with respect to a series of Convertible Debt Securities, the Depositary for such series of Convertible Debt Securities may surrender a Global Security for such series of Convertible Debt Securities in exchange in whole or in part for Convertible Debt Securities of such series of like tenor and terms and in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without charge to any Holder, (a) to each Person specified by such Depositary a new Convertible Debt Security or Securities of the same series, of like tenor and terms and of any authorized denominations as requested by such person in aggregate principal amount equal to and in exchange for such Person's beneficial interest in the Global Security; and (b) to such Depositary a new Global Security of like tenor and terms and in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal amount of Convertible Debt Securities delivered to Holders thereof. In any exchange provided for in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver Convertible Debt Securities in definitive registered form in authorized denominations, if the Convertible Debt Securities of such series are issuable as Registered Securities. Upon the exchange of a Global Security for Convertible Debt Securities in definitive form, such Global Security shall be cancelled by the Trustee. Registered Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The 24 31 Trustee shall deliver such Registered Securities to the persons in whose names such Convertible Debt Securities are so registered. All Convertible Debt Securities issued upon any registration of transfer or exchange of Convertible Debt Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Convertible Debt Securities surrendered upon such registration of transfer or exchange. Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Company, the Security Registrar or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Security Registrar and the Trustee duly executed, by the Holder thereof or such Holder's attorney duly authorized in writing. No charge to any Holder shall be made for any registration of transfer or exchange of Convertible Debt Securities, but the Company may, at its option, require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any transfer, registration of transfer or exchange of Convertible Debt Securities, other than exchanges expressly provided in this Indenture to be made at the Company's own expense or without expense or without charge to the Holders. The Company shall not be required (i) to issue, register the transfer of or exchange Convertible Debt Securities of any particular series to be redeemed for a period of 15 days preceding the first publication of the relevant notice of redemption or, if Registered Securities are outstanding and there is no publication, the mailing of the relevant notice of redemption of Convertible Debt Securities of such series selected for redemption under Section 1103 and ending at the close of business on the day of such mailing, or (ii) to register the transfer of or exchange any Registered Security so selected for redemption in whole or in part, except the unredeemed portion of such Registered Security being redeemed in part. Section 306. Mutilated, Destroyed, Lost and Stolen Convertible Debt Securities. If (i) any mutilated Registered Security is surrendered to the Trustee, or (ii) the Company and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Convertible Debt Security, and there is delivered to the Company and the Trustee such security or indemnity as may be required by them to save each of them harmless, then, in the absence of notice to the Company and the Trustee that such Convertible Debt Security has been acquired by a bona fide purchaser, the Company shall execute and upon its written request the Trustee shall authenticate and deliver, in exchange for any such mutilated Convertible Debt Security or in lieu of any such destroyed, lost or stolen Convertible Debt Security, a new Convertible Debt Security of like tenor and terms and principal amount, bearing a number not contemporaneously outstanding. In case any such mutilated, destroyed, lost or stolen Convertible Debt Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Convertible Debt Security, pay such Convertible Debt Security. 25 32 Upon the issuance of any new Convertible Debt Security under this Section, 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 and printing expenses) connected therewith. Every new Convertible Debt Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Convertible Debt Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Convertible Debt Security shall be at any time enforceable by anyone, and any such new Convertible Debt Security shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Convertible Debt Securities of that series duly issued hereunder. The provisions of this Section 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 Convertible Debt Securities. Section 307. Payment of Interest; Interest Rights Preserved. Interest on any Registered Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest. At the option of the Company, payment of interest on any Registered Security may be made by check in the currency designated for such payment pursuant to the terms of such Registered Security mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or by wire transfer to an account in such currency designated by such Person in writing not later than 10 days prior to the date of such payment. Any interest on any Registered Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called "Defaulted Interest") shall forthwith cease to be payable to the registered Holder on the relevant Regular Record Date by virtue of his having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clauses (1) or (2) below: (1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money and/or Government Obligations the payments of principal and interest on which when due (and without reinvestment) will provide money in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment) be equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money and/or Government Obligations when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this 26 33 clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date. Unless the Trustee is acting as the Security Registrar, promptly after such Special Record Date, the Company shall furnish the Trustee with a list, or shall make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and principal amounts of Registered Securities of such series held by, the Holders appearing on the Security Register at the close of business on such Special Record Date. In the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Registered Securities of such series at his address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). (2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Registered Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee. Subject to the foregoing provisions of this Section, each Convertible Debt Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Convertible Debt Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Convertible Debt Security. Section 308. Persons Deemed Owners. Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 307) interest on such Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. 27 34 Section 309. Cancellation. Unless otherwise provided with respect to a series of Convertible Debt Securities, all Convertible Debt Securities surrendered for payment, redemption, repayment, transfer, exchange or credit against any sinking fund payment pursuant to this Indenture shall, if surrendered to the Company or any agent of the Company, be delivered to the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Convertible Debt Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Convertible Debt Securities so delivered shall be promptly cancelled by the Trustee. No Convertible Debt Securities shall be authenticated in lieu of or in exchange for any Convertible Debt Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Convertible Debt Securities held by the Trustee shall be destroyed and certification of their destruction delivered to the Company unless by a Company Order the Company shall direct that the cancelled Convertible Debt Securities be returned to it. Section 310. Computation of Interest. Except as otherwise specified as contemplated by Section 301 for Convertible Debt Securities of any series, interest on the Convertible Debt Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months. ARTICLE IV. SATISFACTION AND DISCHARGE Section 401. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Convertible Debt Securities herein expressly provided for and rights to receive payments of principal and interest thereon and any right to receive additional amounts, as provided in Section 1006) and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture when (1) either (A) all Convertible Debt Securities theretofore authenticated and delivered (other than (i) Convertible Debt Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, and (ii) Convertible Debt Securities for whose payment money and/or Government Obligations have theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee cancelled or for cancellation; or (B) all such Convertible Debt Securities not theretofore delivered to the Trustee for cancellation 28 35 (i) have become due and payable, or (ii) will become due and payable at their Stated Maturity within one year, or (iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company, and the Company, in the case of (B)(i), (B)(ii) or (B)(iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money and/or Government Obligations the payments of principal and interest on which when due (and without reinvestment) will provide money in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment) be sufficient to pay and discharge the entire indebtedness on such Convertible Debt Securities of such series for principal (and premium, if any) and interest, and any mandatory sinking fund, repayment or analogous payments thereon, on the scheduled due dates therefor to the date of such deposit (in the case of Convertible Debt Securities which have become due and payable) or to the Stated Maturity or Redemption Date, if any, and all Repayment Dates (in the case of Convertible Debt Securities repayable at the option of the Holders thereof); provided, however, that in the event a petition for relief under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law is filed with respect to the Company within 91 days after the deposit, the obligations of the Company under the Indenture with respect to the Convertible Debt Securities of such series shall not be deemed terminated or discharged, and in such event the Trustee shall be required to return the deposited money and Government Obligations then held by the Trustee to the Company; (2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with. Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 607 and, if money or Government Obligations shall have been deposited with the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 402 and the last paragraph of Section 1003 shall survive. Section 402. Application of Trust Money and Government Obligations. (a) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations deposited with the Trustee pursuant to Section 401, 403 or 1701 shall be held in trust and such money and the principal and interest received on such Government Obligations shall be applied by it, in accordance with the provisions of the Convertible Debt Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the 29 36 Persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money or Government Obligations have been deposited with the Trustee. (b) The Trustee shall deliver or pay to the Company from time to time upon Company Request any Government Obligations or money held by it as provided in Section 403 or 1701 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such Government Obligations or money were deposited or received. (c) The Trustee shall deliver to the Company from time to time upon Company Request any Government Obligations held by it as provided in Section 403 or 1701, provided that the Company in substitution therefor simultaneously delivers to the Trustee, money or other Government Obligations which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, would then be sufficient to satisfy the Company's payment obligations in respect of the Convertible Debt Securities in the manner contemplated by Section 403 or 1701. Section 403. Satisfaction, Discharge and Defeasance of Convertible Debt Securities of any Series. If this Section 403 is specified, as contemplated by Section 301, to be applicable to Convertible Debt Securities of any series, then, notwithstanding Section 401, (i) the Company shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Convertible Debt Securities of any such series; (ii) the provisions of this Indenture as it relates to such Outstanding Convertible Debt Securities shall no longer be in effect (except as to (A) the rights of Holders of Convertible Debt Securities to receive, from the trust fund described in subparagraph (1) below, payment of (x) the principal of (and premium, if any) and any installment of principal of (and premium, if any) or interest on such Convertible Debt Securities on the Stated Maturity of such principal (and premium, if any) or installment of principal (and premium, if any) or interest or (y) any mandatory sinking fund, repayment or analogous payments applicable to the Convertible Debt Securities of that series on that day on which such payments are due and payable in accordance with the terms of this Indenture and of such Convertible Debt Securities, (B) the Company's obligations with respect to such Convertible Debt Securities under Sections 304, 305, 306, 1002, 1003 and 1006, and (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including those under Section 607 hereof); and (iii) the Trustee, at the expense of the Company, shall, upon Company Order, execute proper instruments acknowledging satisfaction and discharge of such indebtedness, when (1) either (A) with respect to all Outstanding Convertible Debt Securities of such series, with reference to this Section 403, the Company has deposited or caused to be deposited with the Trustee irrevocably, as trust funds in trust, money and/or Government Obligations the payments of principal and interest on which when due (and without reinvestment) will provide money in such amounts as will (together with any money 30 37 irrevocably deposited in trust with the Trustee, without investment) be sufficient to pay and discharge (i) the principal of (and premium, if any) and interest on the Outstanding Convertible Debt Securities of that series on the Stated Maturity of such principal or interest or, if such series may be redeemed by the Company prior to the Stated Maturity thereof and the Company shall have given irrevocable instructions to the Trustee to effect such redemption, at the date fixed for such redemption pursuant to Article XI, and (ii) any mandatory sinking fund payments or analogous payments applicable to Convertible Debt Securities of such series on the date on which such payments are due and payable in accordance with the terms of this Indenture and of such Convertible Debt Securities; or (B) the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 301, to be applicable to the Convertible Debt Securities of such series; (2) the Company has paid or caused to be paid all sums payable with respect to the Outstanding Convertible Debt Securities of such series; (3) such deposit will not result in a breach of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound; (4) no Event of Default or event which, with the giving of notice or lapse of time, or both, would become an Event of Default pursuant to Section 501(1), (2), (3), (6) or (7) with respect to the Convertible Debt Securities of such series shall have occurred and be continuing on the date of such deposit and no Event of Default under Section 501(6) or Section 501(7) or event which, with the giving of notice or lapse of time, or both, would become an Event of Default under Section 501(6) or Section 501(7) shall have occurred and be continuing on the 91st day after such date; provided, however, that should that condition fail to be satisfied on or before such 91st day, the Trustee shall promptly, upon satisfactory receipt of evidence of such failure, return such deposit to the Company; (5) if the Convertible Debt Securities of that series are then listed on any domestic securities exchange, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause such Convertible Debt Securities to be delisted; and (6) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the entire indebtedness of all Outstanding Convertible Debt Securities have been complied with. Any deposits with the Trustee referred to in Section 403(1)(A) above shall be irrevocable and shall be made under the terms of an escrow or trust agreement in form and substance satisfactory to the Trustee. If any Outstanding Convertible Debt Securities of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance with any mandatory sinking fund requirement, the applicable escrow 31 38 or trust agreement shall provide therefor and the Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. Upon the satisfaction of the conditions set forth in this Section 403 with respect to all the Outstanding Convertible Debt Securities of any series, the terms and conditions of such series, including the terms and conditions with respect thereto set forth in this Indenture, shall no longer be binding upon, or applicable to, the Company; provided that the Company shall not be discharged from any payment obligations in respect of Convertible Debt Securities of such series which are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations continue to be valid obligations of the Company under applicable law. Notwithstanding the cessation, termination and discharge of all obligations, covenants and agreements (except as provided above in this Section 403) of the Company under this Indenture with respect to any series of Convertible Debt Securities, the obligations of the Company to the Trustee under Section 607, and the obligations of the Trustee under Section 402 and the last paragraph of Section 1003, shall survive with respect to such series of Convertible Debt Securities. ARTICLE V. REMEDIES Section 501. Events of Default. "Event of Default", wherever used herein with respect to Convertible Debt Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law, pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body): (1) default in the payment of any interest upon any Convertible Debt Security of such series when it becomes due and payable, and continuance of such default for a period of 30 days; or (2) default in the payment of the principal of (or premium, if any, on) any Convertible Debt Security of such series at its Maturity; or (3) default in the deposit of any sinking fund payment, when and as due by the terms of a Convertible Debt Security of such series; or (4) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere in this Section specifically addressed or which has expressly been included in this Indenture solely for the benefit of Convertible Debt Securities of a series other than such series), and continuance of such default or breach for a period of 90 days after there has been given by registered or certified mail, to the Company by the Trustee, or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding 32 39 Convertible Debt Securities of such series, a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a "Notice of Default" hereunder, or (5) a default under any Indebtedness for money borrowed by the Company or any Subsidiary (including a default with respect to Convertible Debt Securities of any series other than that series) or under any Mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any Subsidiary (including this Indenture), whether such Indebtedness now exists or shall hereafter be created, which default shall have resulted in such Indebtedness in an outstanding principal amount in excess of $____________ becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such acceleration having been rescinded or annulled, or such Indebtedness having been discharged, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default and requiring the Company to cause such acceleration to be rescinded or annulled or cause such Indebtedness to be discharged and stating that such notice is a "Notice of Default" hereunder; or (6) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 90 consecutive days; or (7) the commencement by the Company of a voluntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or (8) any other Event of Default provided with respect to Convertible Debt Securities of such series specified as contemplated by Section 301. 33 40 Section 502. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Convertible Debt Securities of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in principal amount of Outstanding Convertible Debt Securities of such series may declare the principal amount (or, if the Convertible Debt Securities of such series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of and all accrued but unpaid interest on all the Convertible Debt Securities of such series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by such Holders), and upon any such declaration such principal amount (or specified amount) shall become immediately due and payable. Upon payment of such amount, all obligations of the Company in respect of the payment of principal of the Convertible Debt Securities of such series shall terminate. At any time after such a declaration of acceleration with respect to Convertible Debt Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Convertible Debt Securities of such series, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if (1) the Company has paid or deposited with the Trustee a sum sufficient to pay (A) all overdue installments of interest on all Convertible Debt Securities of such series, (B) the principal of (and premium, if any, on) any Convertible Debt Securities of such series which have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates prescribed therefor in such Convertible Debt Securities, (C) to the extent that payment of such interest is lawful, interest upon overdue installments of interest at the rate or rates prescribed therefor in such Convertible Debt Securities, and (D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expense, disbursements and advances of the Trustee, its agents and counsel; and (2) all Events of Default with respect to Convertible Debt Securities of such series, other than the non-payment of the principal of Convertible Debt Securities of such series which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513. No such rescission shall affect any subsequent default or impair any right consequent thereon. 34 41 Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if: (1) default is made in the payment of any installment of interest on any Convertible Debt Security when such interest becomes due and payable and such default continues for a period of 30 days, or (2) default is made in the payment of the principal of (or premium, if any, on) any Convertible Debt Security at the Maturity thereof, the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Convertible Debt Securities, the amount then due and payable on such Convertible Debt Securities for principal (and premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest upon the overdue principal (and premium, if any) and, upon overdue installments of interest, at the rate or rates prescribed therefor in such Convertible Debt Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel. If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Company or any other obligor upon such Convertible Debt Securities and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such Convertible Debt Securities, wherever situated. If an Event of Default with respect to Convertible Debt Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Convertible Debt Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy. Section 504. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceedings, or any voluntary or involuntary case under the Federal bankruptcy laws as now or hereafter constituted, relative to the Company or any other obligor upon the Convertible Debt Securities of a particular series or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of such Convertible Debt Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceedings or otherwise, (1) to file and prove a claim for the whole amount of principal (and premium, if any) and interest owing and unpaid in respect of the Convertible Debt Securities of such series 35 42 and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (2) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any receiver, assignee, trustee, custodian, liquidator, sequestrator or other similar official in any such proceeding is hereby authorized by each Holder to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Convertible Debt Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. Section 505. Trustee May Enforce Claims without Possession of Convertible Debt Securities. All rights of action and claims under this Indenture or the Convertible Debt Securities may be prosecuted and enforced by the Trustee without the possession of any of the Convertible Debt Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name, as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Convertible Debt Securities in respect of which such judgment has been recovered. Section 506. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal (and premium, if any) or interest, upon presentation of the Convertible Debt Securities, or both, as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 607; SECOND: To the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Convertible Debt Securities, in respect of which or for the benefit of which such money has been collected ratably, without preference or priority of any kind, according to the amounts due and payable on such Convertible Debt Securities for principal (and premium, if any) and interest, respectively; and THIRD: The balance, if any, to the Person or Persons entitled thereto. 36 43 Section 507. Limitation on Suits. No Holder of any Convertible Debt Securities of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless (1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Convertible Debt Securities of such series; (2) the Holders of not less than 25% in principal amount of the Outstanding Convertible Debt Securities of such series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (3) such Holder or Holders shall have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance with such request; (4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and (5) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Convertible Debt Securities of such series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders. Section 508. Unconditional Right of Holders to Receive Principal, Premium and Interest. Notwithstanding any other provision in this Indenture, the Holder of any Convertible Debt Security shall have the right which is absolute and unconditional to receive payment of the principal of (and premium, if any) and, subject to Section 307, interest on such Convertible Debt Security on the respective Stated Maturity or Maturities expressed in such Convertible Debt Security (or, in the case of redemption or repayment, on the Redemption Date or the Repayment Date, as the case may be) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Holder. Section 509. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted any proceedings to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights 37 44 and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted. Section 510. Rights and Remedies Cumulative. Except as otherwise provided in Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Section 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Convertible Debt Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be. Section 512. Control by Holders of Convertible Debt Securities. The Holders of a majority in principal amount of the Outstanding Convertible Debt Securities of any series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Convertible Debt Securities of such series, provided, that (1) such direction shall not be in conflict with any rule of law or with this Indenture; (2) subject to the provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall, by a Responsible Officer or Responsible Officers of the Trustee, determine that the proceedings so directed would be unjustly prejudicial to the Holders of Convertible Debt Securities of such series not joining in any such direction; and (3) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction. Section 513. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Convertible Debt Securities of any series may on behalf of the Holders of all the Convertible Debt Securities of any such series waive any past default hereunder with respect to such series and its consequences, except a default 38 45 (1) in the payment of the principal of (or premium, if any) or interest on any Convertible Debt Security of such series, or (2) in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Convertible Debt Security of such series affected. Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon. Section 514. Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Convertible Debt Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys' fees, against any party litigant in such suit, having a due regard to the merits and good faith of the claims or defenses made by such party litigant, but the provisions of this Section shall not apply to any suit instituted by the Company or the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 25% in principal amount of the Outstanding Convertible Debt Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Convertible Debt Security on or after the respective Stated Maturity or Maturities expressed in such Convertible Debt Security (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the case may be). Section 515. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law whenever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE VI. THE TRUSTEE Section 601. Certain Duties and Responsibilities. Except during the continuance of an Event of Default, the Trustee's duties and responsibilities under this Indenture shall be governed by the Trust Indenture Act. In the event 39 46 that an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs. Notwithstanding the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section. Section 602. Notice of Default. If a default occurs hereunder with respect to Convertible Debt Securities of any series the Trustee shall transmit by mail to all Holders of Convertible Debt Securities of such series notice of such default as and to the extent provided by the Trust Indenture Act; provided, however, that in the case of any default of the character specified in Section 501(4) with respect to Convertible Debt Securities of such series no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section, the term "default" means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Convertible Debt Securities of such series. Section 603. Certain Rights of Trustee. Except as otherwise provided in Section 601: (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any signature, resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors shall be sufficiently evidenced by a Board Resolution; (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers' Certificate; (d) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Convertible Debt Securities of such series pursuant to this Indenture, unless such Holders shall 40 47 have offered to the Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (f) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney, other than any such books or records containing information as to the affairs of the customers of the Company or any of its subsidiaries; provided that the Trustee may examine such books and records relating to customers to the extent that such books and records contain information as to any payments made to such customers in their capacity as Holders of Convertible Debt Securities; provided, further, that the Trustee shall treat all information regarding the Company which it receives pursuant to this Indenture and its duties hereunder as confidential and shall not disclose such information unless necessary in order to fulfill its duties under this Indenture or the Trust Indenture Act; and (g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; no Global Exchange Agent, Depositary or Paying Agent shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any of them. Section 604. Not Responsible for Recitals or Issuance of Convertible Debt Securities. The recitals contained herein and in the Convertible Debt Securities, except the Trustee's certificates of authentication, and the information in any registration statement, including all attachments thereto, except information provided by the Trustee therein, shall be taken as the statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Convertible Debt Securities of any series. The Trustee shall not be accountable for the use or application by the Company of any Convertible Debt Securities or the proceeds thereof. Section 605. May Hold Convertible Debt Securities. The Trustee, any Paying Agent, the Security Registrar or any other agent of the Company or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Convertible Debt Securities, and, subject to Sections 608 and 613, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar or such agent. Section 606. Money Held in Trust. Money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent 41 48 shall be under any liability for interest on any money received by it hereunder except as otherwise agreed with the Company. Section 607. Compensation and Reimbursement. The Company agrees (1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder which shall have from time to time been separately agreed to by the Company and the Trustee in writing (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or bad faith; and (3) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on its part, arising out of or in connection with the acceptance or administration of this trust or performance of its duties hereunder, including the reasonable costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder. The Trustee shall promptly notify the Company of any claim for which it may seek indemnification pursuant to the provisions of this Indenture. The Company shall be entitled to participate in, and to the extent that it shall wish, to assume the defense of such claim, with counsel satisfactory to the Trustee (and the Trustee shall cooperate in the defense thereof), and after notice from the Company to the Trustee of the Company's election so to assume the defense thereof, the Company shall not be liable to the Trustee under this Indenture for any legal or other expenses subsequently incurred by the Trustee in connection with the defense thereof other than reasonable costs of investigation. The Company shall not be obligated under any settlement agreement relating to any claim under this Indenture to which it has not agreed in writing. As security for the performance of the obligations of the Company under this Section the Trustee shall have a claim prior to the Convertible Debt Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) or interest on particular Convertible Debt Securities. Section 608. Disqualification; Conflicting Interests. If the Trustee has or shall acquire any conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest with respect to Convertible Debt Securities of any series by virtue of being a trustee under this Indenture with respect to any particular series of Convertible Debt Securities. 42 49 Section 609. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee hereunder which shall be a corporation that is eligible pursuant to the Trust Indenture Act to act as such and organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $__________, and subject to supervision or examination by Federal or State authority; provided, however, that if Section 310(a) of the Trust Indenture Act or the rules and regulations of the Commission under the Trust Indenture Act at any time permit a corporation organized and doing business under the laws of any other jurisdiction to serve as trustee of an indenture qualified under the Trust Indenture Act, this Section 609 shall be automatically amended to permit a corporation organized and doing business under the laws of any such other jurisdiction to serve as Trustee hereunder. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. Section 610. Resignation and Removal; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 611. (b) The Trustee may resign at any time with respect to the Convertible Debt Securities of one or more series by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Convertible Debt Securities of such series. (c) The Trustee may be removed at any time with respect to the Convertible Debt Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Convertible Debt Securities of such series, delivered to the Trustee and to the Company. (d) If at any time: (1) the Trustee shall fail to comply with Section 608 with respect to the Convertible Debt Securities of any series after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Convertible Debt Security of such series for at least 6 months, or (2) the Trustee shall cease to be eligible under Section 609 with respect to any series of Convertible Debt Securities and shall fail to resign after written request therefor by the Company or by any such Holder, or 43 50 (3) the Trustee shall become incapable of acting with respect to any series of Convertible Debt Securities or a decree or order for relief by a court having jurisdiction in the premises shall have been entered in respect of the Trustee in an involuntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law; or a decree or order by a court having jurisdiction in the premises shall have been entered for the appointment of a receiver, custodian, liquidator, assignee, trustee, sequestrator or other similar official of the Trustee or of its property or affairs, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation, winding up or liquidation, or (4) the Trustee shall commence a voluntary case under the Federal bankruptcy laws, as now or hereafter constituted, or any other applicable Federal or State bankruptcy, insolvency or similar law or shall consent to the appointment of or taking possession by a receiver, custodian, liquidator, assignee, trustee, sequestrator or other similar official of the Trustee or its property or affairs, or shall make an assignment for the benefit of creditors, or shall admit in writing its inability to pay its debts generally as they become due, or shall take corporate action in furtherance of any such action, then, in any such case, (i) the Company by a Board Resolution may remove the Trustee with respect to such series at any time or (ii) subject to Section 514, any Holder who has been a bona fide Holder of a Convertible Debt Security of any series for at least 6 months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee for the Convertible Debt Securities of such series and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting with respect to any series of Convertible Debt Securities, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Convertible Debt Securities or one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Convertible Debt Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Convertible Debt Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Convertible Debt Securities of any particular series) and shall comply with the applicable requirements of Section 611. If, within 1 year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Convertible Debt Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Convertible Debt Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Convertible Debt Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Convertible Debt Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner hereinafter provided, any Holder who has been a bona fide Holder of a Convertible Debt Security of such series for at least 6 months may, subject to Section 514, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Convertible Debt Securities of such series. 44 51 (f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Convertible Debt Securities of any series and each appointment of a successor Trustee with respect to the Convertible Debt Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Registered Securities, of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Convertible Debt Securities of such series and the address of its Corporate Trust Office. Section 611. Acceptance of Appointment by Successor. (a) In the case of an appointment hereunder of a successor Trustee with respect to all Convertible Debt Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. (b) In the case of the appointment hereunder of a successor Trustee with respect to the Convertible Debt Securities of one or more (but not all) series, the Company, the retiring Trustee upon payment of its charges and each successor Trustee with respect to the Convertible Debt Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Convertible Debt Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Convertible Debt Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Convertible Debt Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Convertible Debt Securities of that or those series to which the appointment of such successor Trustee relates; but, on the request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with 45 52 respect to the Convertible Debt Securities of that or those series to which the appointment of such successor Trustee relates. (c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be. (d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article. Section 612. Merger, Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall, with the written approval of the Company, be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the executing or filing of any paper or any further act on the part of any of the parties hereto. In case any Convertible Debt Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion, consolidation or sale to such authenticating Trustee may adopt such authentication and deliver the Convertible Debt Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Convertible Debt Securities. In case any Convertible Debt Securities shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Convertible Debt Securities, in either its own name or that of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate of authentication of the Trustee. If the Trustee's successor by merger, conversion, consolidation or sale shall not have received the written approval of the Company, such successor shall resign within 20 days after the merger, conversion, consolidation or sale and such vacancy in the office of the Trustee shall be filled in the manner specified in Section 610. Section 613. Preferential Collection of Claims Against Company. If and when the Trustee shall be or shall become a creditor, directly or indirectly, secured or unsecured, of the Company (or any other obligor upon the Convertible Debt Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding collection of claims against the Company (or any such other obligor). Section 614. Authenticating Agent. The Trustee may upon Company request appoint one or more Authenticating Agents (including, without limitation, the Company or any Affiliate thereof) with respect to one or more series of Convertible Debt Securities which shall be authorized on behalf of the Trustee in authenticating Convertible Debt Securities of such series in connection with the issue, delivery, registration of transfer, exchange, partial redemption or repayment of such Convertible Debt Securities. Wherever reference is made in this Indenture to the authentication of Convertible 46 53 Debt Securities by the Trustee or the Trustee's certificate of authentication, such reference shall be deemed to include authentication on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent must be acceptable to the Company and, in the case of Registered Securities, must be a corporation organized and doing business under the laws of the United States or of any State or the District of Columbia, having a combined capital surplus of at least $____________, authorized under such laws to do a trust business and subject to supervision or examination by Federal or State authorities. Any corporation succeeding to the corporate agency business of an authenticating agent shall continue to be an authenticating agent without the execution or filing of any paper or any further act on the part of the Trustee or such authenticating agent. An authenticating agent may at any time resign with respect to one or more series of Convertible Debt Securities by giving written notice of resignation to the Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating agent with respect to one or more series of Convertible Debt Securities by giving written notice of termination to such authenticating agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time an authenticating agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor authenticating agent. Any successor authenticating agent upon acceptance of its appointment hereunder shall become vested with all rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an authenticating agent herein. No successor authenticating agent shall be appointed unless eligible under the provisions of this Section. The Trustee agrees to pay to each authenticating agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payment, subject to the provisions of Section 607. The provisions of Sections 104, 111, 306, 309, 603, 604 and 605 shall be applicable to any authenticating agent. Pursuant to each appointment made under this Section, the Convertible Debt Securities of each series covered by such appointment may have endorsed thereon, in lieu of the Trustee's certificate of authentication, an alternate certificate of authentication in substantially the following form: This is one of the Convertible Debt Securities, of the series designated herein, described in the within-mentioned Indenture. 47 54 _____________________________________________ By:__________________________________________ As Authenticating Agent for the Trustee By:__________________________________________ Authorized Officer ARTICLE VII. HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY Section 701. Company to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee with respect to Convertible Debt Securities of each series for which it acts as Trustee: (1) semi-annually, not later than May 15 and November 15 in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Registered Securities as of the preceding May 1 or November 1, as the case may be, and (2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that if and so long as the Trustee shall be the Security Registrar, no such list need be furnished. Section 702. Preservation of Information; Communications to Holders. (a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Registered Securities contained in the most recent list furnished to the Trustee as provided in Section 701 and the names and addresses of Holders of Registered Securities received by the Trustee in its capacity as Paying Agent or Security Registrar, if so acting. The Trustee may destroy any list furnished to it as provided in Section 701 upon receipt of a new list so furnished. (b) The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Convertible Debt Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act. (c) Every Holder of Convertible Debt Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee shall be held accountable by reason of any disclosure of information as to the names and addresses of the Holders made pursuant to the Trust Indenture Act. 48 55 Section 703. Reports by Trustee. (a) Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Convertible Debt Securities pursuant to this Indenture and at any other time required by the Trust Indenture Act, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture and such other matters as may be required pursuant to the Trust Indenture Act in the manner required by the Trust Indenture Act. (b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Convertible Debt Securities of such series are listed, with the Commission and also with the Company. The Company will notify the Trustee when any series of Convertible Debt Securities are listed on any stock exchange. Section 704. Reports by Company. The Company shall file with the Trustee and the Commission, and transmit to Holders such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture Act at the time and in the manner pursuant to such Act; provided that such information, documents or reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission. ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE Section 801. Company May Consolidate, etc. Only on Certain Terms. The Company shall not consolidate with or merge into any other corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company, or convey, transfer or lease its properties and assets substantially as an entirety to the Company, unless: (1) in case the Company shall consolidate with or merge into another corporation or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the corporation formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of the United States of America, any political subdivision thereof or any State thereof and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on all the Convertible Debt Securities and the performance of every covenant of this Indenture on the part of the Company to be performed or observed (including the obligations of the Company with respect to Conversion of the Convertible Debt Securities); 49 56 (2) immediately after giving effect to such transaction, no Event of Default, and no event which, after notice or lapse of time, or both, would become an Event of Default, shall have happened and be continuing; and (3) the Company has delivered to the Trustee an Officers' Certificate and an Opinion of Counsel each stating that such consolidation, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been met. Section 802. Successor Corporation Substituted. Upon any consolidation with or merger into any other corporation, or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety in accordance with Section 801, the successor corporation formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor had been named as the Company herein, and thereafter, except in the case of a lease, the Company (which term for this purpose shall mean the Person named as the "Company" in the first paragraph of this instrument or any successor corporation which shall theretofore have become such in the manner presented in this Article) shall be relieved of all obligations and covenants under this Indenture and the Convertible Debt Securities. Section 803. Conveyance or Transfer to a Wholly-Owned Restricted Subsidiary. Notwithstanding the provisions of Sections 801 and 802, and without any requirement of complying with any of such provisions, the Company may convey or transfer its properties and assets substantially as an entirety to another corporation organized and existing under the laws of the United States of America or any State or the District of Columbia which is lawfully entitled to acquire the same; provided, however, that immediately after giving effect to such conveyance or transfer and to the receipt of the consideration therefor (i) such other corporation shall be a Wholly-owned Subsidiary, and (ii) prior to such conveyance or transfer there shall have been filed with the Trustee an Officers' Certificate to the effect that the requirements of the preceding clause (i) will be complied with in connection with such conveyance or transfer. ARTICLE IX. SUPPLEMENTAL INDENTURES Section 901. Supplemental Indentures Without Consent of Holders. Without the consent of any Holders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: 50 57 (1) to evidence the succession of another corporation to the Company, and the assumption by such successor of the covenants of the Company herein and in the Convertible Debt Securities contained; or (2) to add to the covenants of the Company, for the benefit of the Holders of all or any series of Convertible Debt Securities (and if such covenants are to be for the benefit of less than all series of Convertible Debt Securities, stating that such covenants are expressly being included solely for the benefit of such series) to convey, transfer, assign, mortgage or pledge any property to or with the Trustee, or to surrender any right or power herein conferred upon the Company; or (3) to add any additional Events of Default (and if such Events of Default are to be applicable to less than all series of Convertible Debt Securities, stating that such Events of Default are expressly being included solely to be applicable to such series); or (4) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination (a) shall become effective only when there is no Convertible Debt Security Outstanding of any series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provisions or (b) shall not apply to any Convertible Debt Security Outstanding; or (5) to establish the form or terms of Convertible Debt Securities of any series as permitted by Sections 201 and 301; or (6) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Convertible Debt Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 611(b); or (7) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture which shall not be inconsistent with any provision of this Indenture, provided such other provisions shall not adversely affect the interests of the Holders of Convertible Debt Securities of any series in any material respect; or (8) to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act, provided such action shall not adversely affect the interest of Holders of Convertible Debt Securities of any series in any material respect. Section 902. Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of the Outstanding Convertible Debt Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures 51 58 supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights under this Indenture of the Holders of such Convertible Debt Securities of such series; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Convertible Debt Security affected thereby, (1) change the Stated Maturity of the principal or any installment of principal of, or any installment of interest on, any Convertible Debt Security, or reduce the principal amount thereof or the interest thereon or any premium payable upon redemption or repayment thereof, or change any obligation of the Company to pay additional amounts pursuant to Section 1006 (except as contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502, or change any Place of Payment, or the coin or currency in which any Convertible Debt Security or the interest thereon is payable, or impair or otherwise limit a Holder's right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Redemption Date or Repayment Date, as the case may be), or (2) reduce the percentage in principal amount of the Outstanding Convertible Debt Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or reduce the requirements of Section 1604 for quorum or voting, or (3) modify any of the provisions of this Section, Section 513 or Section 1012, except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Convertible Debt Security affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references to "the Trustee" and concomitant changes in this Section and Section 1010, or the deletion of this proviso, in accordance with the requirements of Section 611(b) and 901(7), or (4) adversely affect the right to repayment, if any, of Convertible Debt Securities of any series at the option of the Holders thereof. A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Convertible Debt Securities, or which modifies the rights of the Holders of Convertible Debt Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Convertible Debt Securities of any other series. It shall not be necessary for any Act of Holders of the Convertible Debt Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. 52 59 Section 903. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee's own rights, duties or immunities under this Indenture or otherwise. Section 904. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Convertible Debt Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. Section 905. Conformity with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect. Section 906. Reference in Convertible Debt Securities to Supplemental Indentures. Convertible Debt Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Convertible Debt Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Convertible Debt Securities of such series. ARTICLE X. COVENANTS Section 1001. Payment of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Convertible Debt Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on the Convertible Debt Securities in accordance with the terms of the Convertible Debt Securities and this Indenture. Section 1002. Maintenance of Office or Agency. The Company will maintain in each Place of Payment for any series of Convertible Debt Securities an office or agency where Convertible Debt Securities may be presented or surrendered for payment, where Convertible Debt Securities may be surrendered for registration 53 60 of transfer or exchange, where Convertible Debt Securities may be presented for conversion, and where notices and demands to or upon the Company in respect of the Convertible Debt Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of any such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices or demands may be made or served at the ____________________________, and the Company hereby appoints the ______________ its agent to receive all presentations, surrenders, notices and demands. The Company may also from time to time designate one or more other offices or agencies (in or outside of such Place of Payment) where the Convertible Debt Securities of one or more series may be presented or surrendered for any or all such purposes, and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for any series of Convertible Debt Securities for such purposes. The Company will give prompt written notice to the Trustee of any such designation and any change in the location of any such other office or agency. Section 1003. Money for Convertible Debt Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of Convertible Debt Securities, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Convertible Debt Securities of such series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act. Whenever the Company shall have one or more Paying Agents with respect to any series of Convertible Debt Securities, it will, on or before each due date of the principal of (and premium, if any) or interest on any of the Convertible Debt Securities of such series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act. The Company will cause each Paying Agent with respect to any series of Convertible Debt Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will (1) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Convertible Debt Securities of such series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided; 54 61 (2) give the Trustee notice of any default by the Company (or any other obligor upon the Convertible Debt Securities of such series) in the making of any payment of principal of (and premium, if any) or interest on the Convertible Debt Securities of such series; and (3) at any time during the continuance of any such default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent. The Company may at any time, for the purpose of terminating its obligations under this Indenture with respect to Convertible Debt Securities of any series or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Any principal and interest received on the Government Obligations deposited with the Trustee or any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Convertible Debt Security of any series shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Convertible Debt Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money (including the principal and interest received on Government Obligations deposited with the Trustee), and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in one Authorized Newspaper of general circulation in each of The City of New York, and The City of Los Angeles, respectively, and each Place of Payment or mailed to each such Holder, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication or mailing, any unclaimed balance of such money then remaining will be repaid to the Company. Section 1004. Corporate Existence. Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises, provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the Holders. Section 1005. Maintenance of Properties. The Company will cause all properties used or useful in the conduct of its business or the business of any Subsidiary to be maintained and kept in good condition, repair and working 55 62 order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so that the business carried on in connection therewith may be properly and advantageously conducted at all times, provided, however, that nothing in this Section shall prevent the Company from discontinuing the operation or maintenance of any of such properties if such discontinuance is, in the judgment of the Company, desirable in the conduct of its business or the business of any Subsidiary and not disadvantageous in any material respect to the Holders. If the Convertible Debt Securities of a series provide for the payment of additional amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Convertible Debt Securities (or if the Convertible Debt Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal (and premium, if any) is made), and at least 10 days prior to each date of payment of principal (and premium, if any) or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Company will furnish the Trustee and the Company's principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of (and premium, if any) or interest on the Convertible Debt Securities of that series shall be made to Holders of Convertible Debt Securities of that series without withholding for or on account of any tax, assessment or other governmental charge described in the Convertible Debt Securities of that series. If any such withholding shall be required, then such Officers' Certificate shall specify the amount, if any, required to be withheld on such payments to such Holders of Convertible Debt Securities and the Company will pay to the Trustee or such Paying Agent the additional amounts, if any, required by the terms of such Convertible Debt Securities and the first paragraph of this Section. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section. Section 1006. Officer's Certificate as to Default. The Company will furnish to the Trustee not more than 120 days after the end of the Company's fiscal year in each year (beginning with 1999) a brief certificate from the principal executive, financial or accounting officer or treasurer or controller of the Company as to his or her knowledge of the Company's compliance with all conditions and covenants under this Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided under this Indenture), and, if he or she has knowledge of any default, specifying each such default of which the signer has knowledge and the nature thereof. Section 1007. Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any covenant or condition set forth in Sections 1004, and 1005 inclusive with respect to the Convertible Debt Securities of any series if, before the time for such compliance the Holders of at least a majority in principal amount of the Convertible Debt Securities at the time Outstanding shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with 56 63 such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect. ARTICLE XI. REDEMPTION OF CONVERTIBLE DEBT SECURITIES Section 1101. Applicability of Article. Convertible Debt Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Convertible Debt Securities of any series) in accordance with this Article. Section 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem any Convertible Debt Securities shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all of the Convertible Debt Securities of any series, the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount and the tenor and terms of the Convertible Debt Securities of any series to be redeemed. In the case of any redemption of Convertible Debt Securities prior to the expiration of any restriction on such redemption provided in the terms of such Convertible Debt Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers' Certificate evidencing compliance with such restriction. Section 1103. Selection by Trustee of Convertible Debt Securities to be Redeemed. Except as otherwise specified as contemplated by Section 301 for Convertible Debt Securities of any series, if less than all the Convertible Debt Securities of any series with like tenor and terms are to be redeemed, the particular Convertible Debt Securities to be redeemed shall be selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Convertible Debt Securities of such series with like tenor and terms not previously called for redemption, by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Convertible Debt Securities of such series or any integral multiple thereof which is also an authorized denomination) of the principal amount of Registered Securities (if issued in more than one authorized denomination) of such series of a denomination larger than the minimum authorized denomination for Convertible Debt Securities of such series. The Trustee shall promptly notify the Company in writing of the Convertible Debt Securities selected for redemption and, in the case of any Convertible Debt Securities selected for partial redemption, the principal amount thereof to be redeemed. 57 64 For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Convertible Debt Securities shall relate, in the case of any Convertible Debt Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Convertible Debt Security which has been or is to be redeemed. Section 1104. Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 106 not less than 30 nor more than 60 days prior to the Redemption Date, to each Holder of Convertible Debt Securities to be redeemed. All notices of redemption shall state: (1) the Redemption Date, (2) the Redemption Price, (3) if less than all Outstanding Convertible Debt Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amounts) of the particular Convertible Debt Securities to be redeemed, (4) that on the Redemption Date the Redemption Price will become due and payable upon each such Convertible Debt Security to be redeemed, and that interest thereon shall cease to accrue on and after said date, (5) the Place or Places of Payment where such Convertible Debt Securities are to be surrendered for payment of the Redemption Price (6) that the redemption is for a sinking fund, if such is the case, and (7) the CUSIP number, if any. A notice of redemption published as contemplated by Section 106 need not identify particular Registered Securities to be redeemed. Notice of redemption of Convertible Debt Securities to be redeemed at the election of the Company shall be given by the Company, or, at the Company's request, by the Trustee in the name and at the expense of the Company. Section 1105. Deposit of Redemption Price. On or prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, aggregate and hold in trust as provided in Section 1003) an amount of money and/or Government Obligations the payments of principal and interest on which when due (and without reinvestment) will provide money on or prior to the Redemption Date in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment) be sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) 58 65 accrued interest on, all the Convertible Debt Securities or portions thereof which are to be redeemed on that date. Section 1106. Convertible Debt Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Convertible Debt Securities to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Convertible Debt Securities shall cease to bear interest. Upon surrender of any such Convertible Debt Security for redemption in accordance with said notice, such Convertible Debt Security shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Convertible Debt Securities, or one or more Predecessor Securities, registered as such on the relevant Record Dates according to their terms and the provisions of Section 307. If any Convertible Debt Security 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 prescribed therefor in the Convertible Debt Security. Section 1107. Convertible Debt Securities Redeemed in Part. Any Registered Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company, the Security Registrar or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Security Registrar and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Convertible Debt Security without service charge, a new Registered Security or Registered Securities of the same series and of like tenor and terms, of any authorized denominations as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Convertible Debt Security so surrendered. ARTICLE XII. CONVERSION OF CONVERTIBLE DEBT SECURITIES Section 1201. Conversion Privilege. A holder of Convertible Debt Securities may convert the principal amount thereof (or any portion thereof that is an integral multiple of $1,000) into fully paid and nonassessable shares of Common Stock of the Company at any time after 90 days following the date of original issuance thereof and prior to the close of business on the date of the Convertible Debt Securities' Maturity at the Conversion Price then in effect, except that, with respect to any Convertible Debt Securities called for redemption such conversion right shall terminate at the close of business on the third Business Day immediately preceding the Redemption Date (unless the Company shall 59 66 default in making the redemption payment when it becomes due, in which case the conversion right shall terminate on the date such default is cured). The number of shares of Common Stock issuable upon conversion of Convertible Debt Securities is determined by dividing the principal amount of the Convertible Debt Securities converted, by the conversion price in effect on the Conversion Date (the "Conversion Price"). The initial Conversion Price is stated in the Convertible Debt Securities and is subject to adjustment as provided in this Article XII. Provisions of this Indenture that apply to conversion of all of the Convertible Debt Securities of any series also apply to conversion of a portion of it. A holder of Convertible Debt Securities is not entitled to any rights of a holder of Common Stock (other than as provided pursuant to the Company's shareholders rights plan, if any) until such holder of Convertible Debt Securities has converted such Convertible Debt Securities into Common Stock, and only to the extent that such Convertible Debt Securities are deemed to have been converted into Common Stock under this Article XII. Section 1202. Conversion Procedure. To convert Convertible Debt Securities, a Holder must satisfy the requirements in the Convertible Debt Securities. The date on which the Holder satisfies all of those requirements is the conversion date (the "Conversion Date"). As soon as practicable after the Conversion Date, the Company shall deliver to the Holder through the Conversion Agent a certificate for the number of whole shares of Common Stock issuable upon the conversion and a check for any fractional share determined pursuant to Section 1203. The person in whose name the certificate is registered shall become the shareholder of record on the Conversion Date and, as of such date, such person's rights as a Holder of Convertible Debt Securities shall cease; provided, however, that no surrender of Convertible Debt Securities on any date when the stock transfer books of the Company shall be closed, shall be effective to constitute the person entitled to receive the shares of Common Stock upon such conversion as the shareholder of record of such shares of Common Stock on such date, but such surrender shall be effective to constitute the person entitled to receive such shares of Common Stock as the shareholder of record thereof for all purposes at the close of business on the next succeeding day on which such stock transfer books are open; provided further, however, that such conversion shall be at the Conversion Price in effect on the date that such Convertible Debt Securities shall have been surrendered for conversion, as if the stock transfer books of the Company had not been closed. No payment or adjustment will be made for accrued and unpaid interest on converted Convertible Debt Securities or for dividends or distributions on shares of Common Stock issued upon conversion of Convertible Debt Securities, but if any Holder surrenders Convertible Debt Securities for conversion after the close of business on the record date for the payment of an installment of interest and prior to the opening of business on the next interest payment date, then, notwithstanding such conversion, the interest payable on such interest payment date shall be paid to the holder of such Convertible Debt Securities on such record date. In such event, any such Convertible Debt Securities not called for redemption, when surrendered for conversion, must be accompanied by payment in funds acceptable to the Company of an amount equal to the interest payable on such interest payment date on the portion so converted. 60 67 The number of whole shares of Common Stock issuable upon the conversion shall be based on the total principal amount of Convertible Debt Securities converted. Upon surrender of Convertible Debt Securities that are converted in part, the Trustee shall authenticate for the holder new Convertible Debt Securities equal in principal amount to the unconverted portion of the Convertible Debt Securities surrendered. Section 1203. Fractional Shares. The Company will not issue fractional shares of Common Stock upon conversion of Convertible Debt Securities. In lieu thereof, the Company will pay an amount in cash based upon the Daily Market Price of the Common Stock on the trading day prior to the date of conversion. Section 1204. Taxes on Conversion. The issuance of certificates for shares of Common Stock upon the conversion of any Convertible Debt Securities shall be made without charge to the converting Holder for such certificates or for any tax in respect of the issuance of such certificates, and such certificates shall be issued in the respective names of, or in such names as may be directed by, the Holder or Holders of the converted Convertible Debt Securities; provided, however, that in the event that certificates for shares of Common Stock are to be issued in a name other than the name of the Holder of the Convertible Debt Securities converted, such Convertible Debt Securities, when surrendered for conversion, shall be accompanied by an instrument of transfer, in form satisfactory to the Company, duly executed by the registered Holder thereof or his duly authorized attorney; and provided further, however, that the Company and Conversion Agent shall not be required to pay any tax which may be payable in respect of any transfer involved in the issuance and delivery of any such certificates in a name other than that of the holder of the converted Convertible Debt Securities, and the Company shall not be required to issue or deliver such certificates unless or until the person or persons requesting the issuance thereof shall have paid to the Company the amount of such tax or shall have established to the satisfaction of the Company that such tax has been paid or is not applicable. Section 1205. Company to Provide Stock. The Company shall at all times reserve and keep available, free from preemptive rights, out of its authorized but unissued Common Stock, solely for the purpose of issuance upon conversion of Convertible Debt Securities as herein provided, a sufficient number of shares of Common Stock to permit the conversion of all outstanding Convertible Debt Securities for shares of Common Stock. All shares of Common Stock which may be issued upon conversion of the Convertible Debt Securities shall be duly authorized, validly issued, fully paid and nonassessable when so issued. 61 68 Section 1206. Adjustment of Conversion Price. The Conversion Price shall be subject to adjustment from time to time as follows: (a) In case the Company shall (1) pay a dividend in shares of Common Stock to holders of Common Stock (2) make a distribution in shares of Common Stock to holders of Common Stock, (3) subdivide its outstanding shares of Common Stock into a greater number of shares of Common Stock or (4) combine its outstanding shares of Common Stock into a smaller number of shares of Common Stock, the Conversion Price in effect immediately prior to such action shall be adjusted so that the holder of any Convertible Debt Securities thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock which he would have owned immediately following such action had such Convertible Debt Securities been converted immediately prior thereto. Any adjustment made pursuant to this subsection (a) shall become effective immediately after the record date in the case of a dividend, or distribution and shall become effective immediately after the effective date in the case of a subdivision or combination. (b) In case the Company shall issue rights or warrants to substantially all holders of Common Stock entitling them (for a period commencing no earlier than the record date for the determination of holders of Common Stock entitled to receive such rights or warrants and expiring not more than 45 days after such record date) to subscribe for or purchase shares of Common Stock (or securities convertible into Common Stock) at a price per share less than the current market price (as determined pursuant to subsection (f) below) of the Common Stock on such record date, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to such record date by a fraction of which the number at or shall be the number of shares of Common Stock outstanding on such record date, plus the number of shares of Common Stock which the aggregate offering price of the offered shares of Common Stock (or the aggregate conversion price of the convertible securities so offered) would purchase at such current market price, and of which the denominator shall be the number of shares of Common Stock outstanding on such record date plus the number of additional shares of Common Stock offered (or into which the convertible securities so offered are convertible). Such adjustments shall become effective immediately after such record date. (c) In case the Company shall distribute to all holders of Common Stock shares of any class of Capital Stock of the Company (other than Common Stock), evidences of indebtedness or other assets (including securities, but excluding those rights, warrants, dividends and distributions referred to in the preceding clauses (a) and (b) and dividends and distributions in connection with the liquidation, dissolution or winding up of the Company or paid exclusively in cash out of current or retained earnings), or shall distribute to substantially all holders of Common Stock rights or warrants to subscribe for securities (other than those securities referred to in subsection (b) above), then in each such case the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction of which the numerator shall be the current market price (determined as provided in subsection (f) below) of the Common Stock on the record date mentioned below less than then fair market value (as described by the Board of Directors whose determination shall be conclusive evidence of such fair market value and 62 69 described in a Board Resolution) of the portion of the assets so distributed or of such subscription rights or warrants applicable to one share of Common Stock, and of which the denominator shall be such current market price of the Common Stock. Such adjustment shall become effective immediately after the record date for the determination of the holders of Common Stock entitled to receive such distribution. Notwithstanding the foregoing, in the event that the Company shall distribute rights or warrants subscribe for additional shares of the Company's Capital Stock (other than the Common Stock referred to in subsection (b) above) ("Rights") pro rata to holders of Common Stock, the Company may, in lieu of making any adjustment pursuant to this Section 1206, make proper provision so that each holder of Convertible Debt Securities who converts such Convertible Debt Securities (or any portion thereof) after the record date for such distribution and prior to the expiration or redemption of the Rights shall be entitled to receive upon such conversion, in addition to the shares of Common Stock issuable upon such conversion (the "Conversion Shares"), a number of Rights to be determined as follows: (i) if such conversion occurs on or prior to the date for the distribution to the holders of Rights of separate certificates evidencing such Rights (the "Distribution Date"), the same number of Rights to which a holder of a number of shares of Common Stock equal to the number of Conversion Shares is entitled at the time of such conversion in accordance with the terms and provisions of and applicable to the Rights; and (ii) if such conversion occurs after the Distribution Date, the same number of Rights to which a holder of the number of shares of Common Stock into which the principal amount of the Convertible Debt Securities so converted was convertible immediately prior to the Distribution Date would have been entitled on the Distribution Date in accordance with the terms and provisions of and applicable to the Rights. (d) In case the Company shall, by dividend or otherwise, at any time distribute to all holders of its Common Stock cash (including any distributions of cash out of current or retained earnings of the Company but excluding any cash that is distributed as part of a distribution requiring a Conversion Price adjustment pursuant to paragraph (c) of this Section) in an aggregate amount that, together with the sum of (x) the aggregate amount of any other distributions to all holders of its Common Stock made in cash plus (y) all Excess Payments, in each case made within the 12 months preceding the date fixed for determining the shareholders entitled to such distribution (the "Distribution Record Date") and in respect of which no Conversion Price adjustment pursuant to paragraphs (c) or (e) of this Section or this paragraph (d) has been made, exceeds 15% of the product of the current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date times the number of shares of Common Stock outstanding on the Distribution Record Date (excluding shares held in the treasury of the Company), the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (d) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date less than the amount of such cash and other consideration (including any Excess Payments) so distributed applicable to one share (based on the pro rata portion of the aggregate amount of such cash and other consideration (including any Excess Payments), divided by the shares of Common Stock outstanding on the Distribution Record Date) of Common Stock and the denominator shall be such current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Distribution Record Date, 63 70 such reduction to become effective immediately prior to the opening of business on the day following the Distribution Record Date. (e) In case a tender offer or other negotiated transaction made by the Company or any Subsidiary of the Company for all or any portion of the Common Stock shall be consummated, if an Excess Payment is made in respect of such tender offer or other negotiated transaction and the amount of such Excess Payment, together with the sum of (x) the aggregate amount of all Excess Payments plus (y) the aggregate amount of all distributions to all holders of the Common Stock made in cash (specifically including distributions of cash out of retained earnings), in each case made within the 12 months preceding the date of payment of such current negotiated transaction consideration or expiration of such current tender offer, as the case may be (the "Purchase Date"), and as to which no adjustment pursuant to paragraph (c) or paragraph (d) of this Section or this paragraph (e) has been made, exceeds 15% of the product of the current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date times the number of shares of Common Stock outstanding (including any tendered shares but excluding any shares held in the treasury of the Company) on the Purchase Date, the Conversion Price shall be reduced so that the same shall equal the price determined by multiplying such Conversion Price in effect immediately prior to the effectiveness of the Conversion Price reduction contemplated by this paragraph (e) by a fraction of which the numerator shall be the current market price per share (determined as provided in paragraph (f) of this Section) of the Common Stock on the Purchase Date less the amount of such Excess Payments and such cash distributions, if any, applicable to one share (based on the pro rata portion of the aggregate amount of such Excess Payments and such cash distributions, divided by the shares of Common Stock outstanding on the Purchase Date) of Common Stock and the denominator shall be such current market price per share (determined as provided in paragraph (f) of this Section) of the common Stock on the Purchase Date, such reduction to become effective immediately prior to the opening of business on the date following the Purchase Date. (f) The current market price per share of Common Stock on any date shall be deemed to be the average of the Daily Market Prices for the shorter of (i) 30 consecutive Business Days ending on the last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination or (ii) the period commencing on the date next succeeding the first public announcement of the issuance of such rights or such warrants or such other distribution or such negotiated transaction through such last full trading day on the exchange or market referred to in determining such Daily Market Prices prior to the time of determination. (g) In any case in which this Section 1206 shall require that an adjustment be made immediately following a record date for an event, the Company may elect to defer, until such event, issuing to the holder of any Convertible Debt Securities converted after such record date the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion over and above the shares of Common Stock and other Capital Stock of the Company issuable upon such conversion only on the basis of the Conversion Price prior to adjustment; and, in lieu of the shares the issuance of which is so deferred, the Company shall issue or cause its transfer agents to issue due bills or other appropriate evidence of the right to receive such shares. 64 71 Section 1207. No Adjustment. No adjustment in the Conversion Price shall be required until cumulative adjustments amount to 1% or more of the Conversion Price as last adjusted; provided, however, that any adjustments which by reason of this Section 1207 are not required to be made shall be carried forward and taken into account in any subsequent adjustment. All calculations under this Article XII shall be made to the nearest cent or to the nearest one-hundredth of a share, as the case may be. No adjustment need be made for rights to purchase Common Stock pursuant to a Company plan for reinvestment of dividends or interest. No adjustment need be made for a change in the par value or no par value of the Common Stock. Section 1208. Other Adjustments. (a) In the event that, as a result of an adjustment made pursuant to Section 1206 above, the holder of any Convertible Debt Securities thereafter surrendered for conversion shall become entitled to receive any shares of Capital Stock of the Company other than shares of its Common Stock, thereafter the Conversion Price of such other shares so receivable upon conversion of any Convertible Debt Securities shall be subject to adjustment from time to time in a manner and on terms as nearly equivalent as practicable to the provisions with respect to Common Stock contained in this Article XII. (b) In the event that shares of Common Stock are not delivered after the expiration of any of the rights or warrants referred to in Section 1206(b) and Section 1206(c) hereof, the Conversion Price shall be readjusted to the Conversion Price which would otherwise be in effect had the adjustment made upon the issuance of such rights or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered. Section 1209. Adjustments for Tax Purposes. The Company may, at its option, make such reductions in the Conversion Price, in addition to those required by Section 1206 above, as it determines to be advisable in order that any stock dividend, subdivision of shares, distribution of rights to purchase stock or securities or distribution of securities convertible into or exchangeable for stock made by the Company to its shareholders will not be taxable to the recipients thereof. Section 1210. Adjustments by the Company. The Company from time to time may, to the extent permitted by law, reduce the Conversion Price by any amount for any period of at least 20 days, in which case the Company shall give at least 15 days' notice of such reduction in accordance with Section 1211, if the Board of Directors has made a determination that such reduction would be in the best interests of the Company, which determination shall be conclusive. Section 1211. Notice of Adjustment. Whenever the Conversion Price is adjusted, the Company shall promptly mail to Holders at the addresses appearing on the Registrar's books and the Conversion Agent a notice of the adjustment and file with the Trustee an Officers Certificate briefly stating the facts requiring the 65 72 adjustment and the manner of computing it. The certificate shall be conclusive evidence of the correctness of such adjustment. Section 1212. Notice of Certain Transactions. In the event that: (1) the Company takes any action which would require an adjustment in the Conversion Price; (2) the Company takes any action that would require a supplemental indenture pursuant to Section 1213 below; or (3) there is a dissolution or liquidation of the Company; a holder of Convertible Debt Securities may wish to convert such Convertible Debt Securities into shares of Common Stock prior to the record date for or the effective date of the transaction so that he may receive the rights, warrants, securities or assets which a holder of shares of Common Stock on that date may receive. Therefore, the Company shall mail to Holders at the addresses appearing on the Registrar's books and the Conversion Agent and the Trustee a notice stating the proposed record or effective date, as the case may be. The Company shall mail the notice at least 15 days before such date; however, failure to mail such notice or any defect therein shall not affect the validity of any transaction referred to in clause (1), (2) or (3) of this Section 1212. Section 1213. Effect of Reclassifications, Consolidations, Mergers or Sales on Conversion Privilege. If any of the following shall occur, namely: (i) any reclassification or change of outstanding shares of Common Stock issuable upon conversion of Convertible Debt Securities (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination), (ii) any consolidation or merger to which the Company is a party other than a merger in which the Company is the continuing corporation and which does not result in any reclassification of, or change (other than a change in name, or par value, or from par value to no par value, or from no par value to par value as a result of a subdivision or combination) in, outstanding shares of Common Stock or (iii) any sale or conveyance of all or substantially all of the property or business of the Company as an entirety, then the Company, or such successor or purchasing corporation, as the case may be, shall, as a condition precedent to such reclassification, change, consolidation, merger, sale or conveyance, execute and deliver to the Trustee a supplemental indenture in form satisfactory to the Trustee providing that the holder of Convertible Debt Securities of any series then outstanding shall have the right to convert such Convertible Debt Securities into the kind and amount of shares of stock and other securities and property (including cash) receivable upon such reclassification, change, consolidation, merger, sale or conveyance by a holder of the number of shares of Common Stock deliverable upon conversion of such Convertible Debt Securities immediately prior to such reclassification, change, consolidation, merger, sale or conveyance. Such supplemental indenture shall provide for adjustments of the Conversion Price which shall be as nearly equivalent as may be practicable to the adjustments of the Conversion Price provided for in this 66 73 Article XII. The foregoing, however, shall not in any way affect the right a Holder of Convertible Debt Securities may otherwise have, pursuant to clause (ii) of the last sentence of subsection (c) of Section 1206, to receive Rights upon conversion of a Convertible Debt Securities. If, in the case of any such consolidation, merger, sale or conveyance, the stock or other securities and property (including cash) receivable thereupon by a holder of Common Stock includes shares of stock or other securities and property of a corporation other than the successor or purchasing corporation, as the case may be, in such consolidation, merger, sale or conveyance, then such supplemental indenture shall also be executed by such other corporation and shall contain such additional provisions to protect the interests of the holders of the Convertible Debt Securities as the Board of Directors of the Company shall reasonably consider necessary by reason of the foregoing. The provision of this Section 1213 shall similarly apply to successive consolidations, mergers, sales or conveyances. In the event the Company shall execute a supplemental indenture pursuant to this Section 1213, the Company shall promptly file with the Trustee an Officers' Certificate briefly stating the reasons therefor, the kind or amount of shares of stock or securities or property (including cash) receivable by holders of the Convertible Debt Securities upon the conversion of their Convertible Debt Securities after any such reclassification, change, consolidation, merger, sale or conveyance and any adjustment to be made with respect thereto. Section 1214. Trustee's Disclaimer. The Trustee has no duty to determine when an adjustment under this Article XII should be made, how it should be made or what such adjustment should be, but may accept as conclusive evidence of the correctness of any such adjustment, and shall be protected in relying upon the Officers' Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 1211. The Trustee makes no representation as to the validity or value of any securities or assets issued upon conversion of Convertible Debt Securities, and the Trustee shall not be responsible for the Company's failure to comply with any provisions of this Article XII. The Trustee shall not be under any responsibility to determine the correctness of any provisions contained in any supplemental indenture executed pursuant to Section 1213, but may accept as conclusive evidence of the correctness thereof, and shall be protected in relying upon, the Officers' Certificate with respect thereto which the Company is obligated to file with the Trustee pursuant to Section 1213. ARTICLE XIII. SUBORDINATION OF CONVERTIBLE DEBT SECURITIES Section 1301. Agreement to Subordinate. The Company, for itself and its successors, and each Holder, by his acceptance of Convertible Debt Securities, agree that the payment of the principal of or interest on or any other amounts due on the Convertible Debt Securities is subordinated in right of payment, to the extent 67 74 and in the manner stated in this Article XIII, to the prior payment in full of all existing and future Senior Debt. Section 1302. No Payment on Convertible Debt Securities if Senior Debt in Default. Anything in this Indenture to the contrary notwithstanding, no payment on account of principal of or redemption of, interest on or other amounts due on the Convertible Debt Securities, and no redemption, purchase, or other acquisition of the Convertible Debt Securities, shall be made by or on behalf of the Company (i) unless full payment of amounts then due for principal and interest and of all other amounts then due on all Senior Debt has been made or duly provided for pursuant to the terms of the instrument governing such Senior Debt, (ii) if, at the time of such payment, redemption, purchase or other acquisition, or immediately after giving effect thereto, there shall exist under any Senior Debt, or any agreement pursuant to which any Senior Debt is issued, any default, which default shall not have been cured or waived and which default shall have resulted in the full amount of such Senior Debt being declared due and payable or (iii) if, at the time of such payment, redemption, purchase or other acquisition, the Trustee shall have received written notice from the Representative of the holders of Designated Senior Debt (a "Payment Blockage Notice") that there exists under such Designated Senior Debt, or any agreement pursuant to which such Designated Senior Debt is issued, any default, which default shall not have been cured or waived, permitting the holders thereof to declare any amounts of such Designated Senior Debt due and payable, but only for the period (the "Payment Blockage Period") commencing on the date of receipt of the Payment Blockage Notice and ending (unless earlier terminated by notice given to the Trustee by the Representative of the holders of such Designated Senior Debt) on the earlier of (a) the date on which such event of default shall have been cured or waived or (b) 179 days from the receipt of the Payment Blockage Notice (unless the event of default relates to the failure to pay when due, the principal, premium, if any or interest on such Designated Senior Debt). Notwithstanding the provisions described in the immediately preceding sentence (other than in clauses (i) and (ii)), unless the holders of such Designated Senior Debt or the Representative of such holders shall have accelerated the maturity of such Designated Senior Debt (unless the event of default relates to the failure to pay when due, the principal, premium, if any or interest on such Designated Senior Debt), the Company may resume payments on the Convertible Debt Securities after the end of such Payment Blockage Period. Not more than one Payment Blockage Notice may be given in any consecutive 360-day period, irrespective of the number of defaults with respect to Senior Debt during such period. In the event that, notwithstanding the provisions of this Section 1302, payments are made by or on behalf of the Company in contravention of the provisions of this Section 1302, such payments shall be held by the Trustee, any Paying Agent or the holders, as applicable, in trust for the benefit of, and shall be paid over to and delivered to, the Representative of the holders of Senior Debt or the trustee under the indenture or other agreement (if any), pursuant to which any instruments evidencing any Senior Debt may have been issued for application to the payment of all Senior Debt ratably according to the aggregate amounts remaining unpaid to the extent necessary to pay all Senior Debt in full in accordance with the terms of such Senior Debt, after giving effect to any concurrent payment or distribution to or for the holders of Senior Debt. 68 75 The Company shall give prompt written notice to the Trustee and any Paying Agent of any default or event of default under any Senior Debt or under any agreement pursuant to which any Senior Debt may have been issued. Section 1303. Distribution on Acceleration of Convertible Debt Securities; Dissolution and Reorganization; Subrogation. (a) If the Convertible Debt Securities are declared due and payable because of the occurrence of an Event of Default, the Company shall give prompt written notice to the holders of all Senior Debt or to the trustee(s) for such Senior Debt of such acceleration. The Company may not pay the principal of or interest on or any other amounts due on the Convertible Debt Securities until 5 days after such holders or trustee(s) of Senior Debt receive such notice and, thereafter, the Company may pay the principal of or interest on or any other amounts due on the Convertible Debt Securities only if the provisions of this Article XIII permit such payment. (b) Upon (i) any acceleration of the principal amount due on the Convertible Debt Securities because of an Event of Default or (ii) any distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or any other dissolution, winding up, liquidation or reorganization of the Company): (1) the holders of all Senior Debt shall first be entitled to receive payment in full of the principal thereof, the interest thereon and any other amounts due thereon before the holders are entitled to receive payment on account of the principal of or interest on or any other amounts due on the Convertible Debt Securities; (2) any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company as reorganized or readjusted or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent provided in this Article with respect to the Convertible Debt Securities, to the payment in full without diminution or modification by such plan of all Senior Debt), to which the holders or the Trustee would be entitled except for the provisions of this Article, shall be paid by the liquidating trustee or agent or other person making such a payment or distribution, directly to the holders of Senior Debt (or their representatives(s) or trustee(s) acting on their behalf), ratably according to the aggregate amounts remaining unpaid on account of the principal of or interest on and other amounts due on the Senior Debt held or represented by each, to the extent necessary to make payment in full of all Senior Debt remaining unpaid, after giving effect to any concurrent payment or distribution to the holders of such Senior Debt; and (3) in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities (other than securities of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent 69 76 provided in this Article with respect to the Convertible Debt Securities, to the payment in full without diminution or modification by such plan of Senior Debt), shall be received by the Trustee or the holders before all Senior Debt is paid in full, such payment or distribution shall be held in trust for the benefit of, and be paid over to upon request by a holder of the Senior Debt, the holders of the Senior Debt remaining unpaid (or their representatives) or trustee(s) acting on their behalf, ratably as aforesaid, for application to the payment of such Senior Debt until all such Senior Debt shall have been paid in full, after giving effect to any concurrent payment or distribution to the holders of such Senior Debt. Subject to the payment in full of all Senior Debt, the Holders shall be subrogated to the rights of the holders of Senior Debt to receive payments or distributions of cash, property or securities of the Company applicable to the Senior Debt until the principal of and interest on the Convertible Debt Securities shall be paid in full and, for purposes of such subrogation, no such payments or distributions to the holders of Senior Debt of cash, property or securities which otherwise would have been payable or distributable to holders shall, as between the Company, its creditors other than the holders of Senior Debt, and the holders, be deemed to be a payment by the Company to or on account of the Senior Debt, it being understood that the provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders, on the one hand, and the holders of Senior Debt, on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Convertible Debt Securities is intended to or shall (i) impair, as between the Company and its creditors other than the holders of Senior Debt, the obligation of the Company, which is absolute and unconditional, to pay to the Holders the principal of and interest on the Convertible Debt Securities as and when the same shall become due and payable in accordance with the terms of the Convertible Debt Securities, (ii) affect the relative rights of the holders and creditors of the Company other than holders of Senior Debt or, as between the Company and the Trustee, the obligations of the Company to the Trustee, or (iii) prevent the Trustee or the Holders from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article of the holders of Senior Debt in respect of cash, property and securities of the Company received upon the exercise of any such remedy. Upon distribution of assets of the Company referred to in this Article XIII, the Trustee, subject to the provisions of Section 601 hereof, and the holders shall be entitled to rely upon a certificate of the liquidating trustee or agent or other person making any distribution to the Trustee or to the holders for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article. The Trustee, however, shall not be deemed to owe any fiduciary duty to the holders of Senior Debt. Nothing contained in this Article or elsewhere in this Indenture, or in any of the Convertible Debt Securities, shall prevent the good faith application by the Trustee of any moneys which were deposited with it hereunder, prior to its receipt of written notice of facts which would prohibit such application, for the purpose of the payment of or on account of the principal of or interest on, the Convertible Debt Securities unless, prior to the date on which such application is made by the Trustee, the Trustee shall be 70 77 charged with actual notice under Section 1303(d) hereof of the fact which would prohibit the making of such application. (c) The provisions of this Article XIII shall not be applicable to any cash, properties or securities received by the Trustee or by any holder when received as a holder of Senior Debt and nothing in this Indenture shall deprive the Trustee or such holder of any of its rights as such holder. (d) The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the making of any payment of money to or by the Trustee in respect of the Convertible Debt Securities pursuant to the provisions of this Article XIII. The Trustee, subject to the provisions of Section 601 hereof, shall be entitled to assume that no such fact exists unless the Company or any holder of Senior Debt or any trustee therefor has given written notice thereof to the Trustee. Notwithstanding the provisions of this Article or any other provisions of this Indenture, the Trustee shall not be charged with knowledge of the existence of any fact which would prohibit the making of any payment of moneys to or by the Trustee in respect of the Convertible Debt Securities pursuant to the provisions in this Article, unless, and until 3 Business Days after the Trustee shall have received written notice thereof from the Company or any holder or holders of Senior Debt or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 601 hereof, shall be entitled in all respects conclusively to assume that no such facts exist; provided, however, that if on a date not less than 3 Business Days immediately preceding the date upon which, by the terms hereof, any such moneys may become payable for any purpose (including, without limitation, the principal of or interest on any Convertible Debt Securities), the Trustee shall not have received with respect to such moneys the written notice provided for in this Section 1303(d), then anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it on or after such prior date. The Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a person representing himself to be a holder of Senior Debt (or a trustee on behalf of such Holder) to establish that such notice has been given by a holder of Senior Debt (or a trustee on behalf of any holder or holders). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any person as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article XIII, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such person, the extent to which such person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such person under this Article XIII, and, if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial determination as to the right of such person to receive such payment; nor shall the Trustee be charged with knowledge of the curing or waiving of any default of the character specified in Section 1302 hereof or that any event or any condition preventing any payment in respect of the Convertible Debt Securities shall have ceased to exist, unless and until the Trustee shall have received written notice to such effect. 71 78 (e) The provisions of this Section 1303 applicable to the Trustee shall (unless the context requires otherwise) also apply to any Paying Agent for the Company. Section 1304. Reliance by Senior Debt on Subordination Provisions. Each Holder of any Convertible Debt Securities by his acceptance thereof acknowledges and agrees that the foregoing subordination provisions are, and are intended to be, an inducement and a consideration for each holder of any Senior Debt, whether such Senior Debt was created or acquired before or after the issuance of the Convertible Debt Securities, to acquire and continue to hold, or to continue to hold, such Senior Debt, and such holder of Senior Debt shall be deemed conclusively to have relied on such subordination provisions in acquiring and continuing to hold, or in continuing to hold, such Senior Debt. Notice of any default in the payment of any Senior Debt, except as expressly stated in this Article XIII, and notice of acceptance of the provisions hereof are hereby expressly waived. Except as otherwise expressly provided herein, no waiver, forbearance or release by any holder of Senior Debt under such Senior Debt or under this Article shall constitute a release of any of the obligations or liabilities of the Trustee or Holders of the Convertible Debt Securities provided in this Article. Section 1305. No Waiver of Subordination Provisions. Except as otherwise expressly provided herein, no right of any present or future holder of any Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with. Without in any way limiting the generality of the foregoing paragraph, the holders of Senior Debt may, at any time and from time to time, without the consent of, or notice to, the Trustee or the Holders of the Convertible Debt Securities, without incurring responsibility to the Holders of the Convertible Debt Securities and without impairing or releasing the subordination provided in this Article XIII or the obligations hereunder of the Holders of the Convertible Debt Securities to the holders of Senior Debt do any one or more of the following: (i) change the manner, place or terms of payment of, or renew or alter, Senior Debt, or otherwise amend or supplement in any manner or any instrument evidencing the same or any agreement under which Senior Debt is outstanding; (ii) sell, exchange, release or otherwise dispose of any property pledged, mortgaged or otherwise securing Senior Debt; (iii) release any person liable in any manner for the collection of Senior Debt; and (iv) exercise or refrain from exercising any rights against the Company or any other person. Section 1306. Trustee's Relation to Senior Debt. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article XIII in respect of any Senior Debt at any time held by it, to the same extent as any holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations, as are specifically set forth in this Article, 72 79 and no implied covenants or obligations with respect to the holders of Senior Debt shall be read into this Indenture against the Trustee. The Trustee shall not owe any fiduciary duty to the holders of Senior Debt but shall have only such obligations to such holders as are expressly set forth in this Article. Each Holder of a Convertible Debt Securities by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article XIII and appoints the Trustee his attorney-in-fact for any and all such purposes, including, in the event of any dissolution, winding up or liquidation or reorganization under any applicable bankruptcy law of the Company (whether in bankruptcy, insolvency or receivership proceedings or otherwise), the timely filing of a claim for the unpaid balance of such holder's Convertible Debt Securities in the form required in such proceedings and the causing of such claim to be approved. If the Trustee does not file a claim or proof of debt in the form required in such proceedings prior to 30 days before the expiration of the time to file such claims or proofs, then any holder or holders of Senior Debt or their representative or representatives shall have the right to demand, sue for, collect, receive and receipt for the payments and distributions in respect of the Convertible Debt Securities which are required to be paid or delivered to the holders of Senior Debt as provided in this Article and to file and prove all claims therefor and to take all such other action in the name of the holders or otherwise, as such holders of Senior Debt or representative thereof may determine to be necessary or appropriate for the enforcement of the provisions of this Article. Section 1307. Other Provisions Subject Hereto. Expect as expressly stated in this Article XIII, notwithstanding anything contained in this Indenture to the contrary, all the provisions of this Indenture and the Convertible Debt Securities are subject to the provisions of this Article. However, nothing in this Article shall apply to or adversely affect the claims of, or payment to, the Trustee pursuant to Section 607. Notwithstanding the foregoing, the failure to make a payment on account of principal of or interest on the Convertible Debt Securities by reason of any provision of this Article shall not be construed as preventing the occurrence of an Event of Default under Section 501. ARTICLE XIV. REPAYMENT AT THE OPTION OF HOLDERS Section 1401. Applicability of Article. Convertible Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with their terms and (except as otherwise specified pursuant to Section 301 for Convertible Debt Securities of such series) in accordance with this Article. Section 1402. Repayment of Convertible Debt Securities. Each Convertible Debt Security which is subject to repayment in whole or in part at the option of the Holder thereof on a Repayment Date shall be repaid at the applicable Repayment 73 80 Price together with interest accrued to such Repayment Date as specified pursuant to Section 301. Section 1403. Exercise of Option; Notice. Each Holder desiring to exercise such Holder's option for repayment shall, as conditions to such repayment, surrender the Convertible Debt Security to be repaid in whole or in part together with written notice of the exercise of such option at any office or agency of the Company in a Place of Payment, not less than 30 nor more than 45 days prior to the Repayment Date. Such notice, which shall be irrevocable, shall specify the principal amount of such Convertible Debt Security to be repaid, which shall be equal to the minimum authorized denomination for such Convertible Debt Security or an integral multiple thereof, and shall identify the Convertible Debt Security to be repaid and, in the case of a partial repayment of the Convertible Debt Security, shall specify the denomination or denominations of the Convertible Debt Security or Convertible Debt Securities of the same series to be issued to the Holder for the portion of the principal of the Convertible Debt Security surrendered which is not to be repaid. The Company shall execute and the Trustee shall authenticate and deliver without service charge to the Holder of any Registered Security so surrendered a new Registered Security or Securities of the same series, of any authorized denomination specified in the foregoing notice, in an aggregate principal amount equal to any portion of the principal of the Registered Security so surrendered which is not to be repaid. For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the repayment of Convertible Debt Securities shall relate, in the case of any Convertible Debt Security repaid or to be repaid only in part, to the portion of the principal of such Convertible Debt Security which has been or is to be repaid. Section 1404. Election of Repayment by Remarketing Entities. The Company may elect, with respect to Convertible Debt Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity, at any time prior to any Repayment Date to designate one or more Remarketing Entities to purchase, at a price equal to the Repayment Price, Convertible Debt Securities of such series from the Holders thereof who give notice and surrender their Convertible Debt Securities in accordance with Section 1403. Section 1405. Securities Payable on the Repayment Date. Notice of exercise of the option of repayment having been given and the Convertible Debt Securities so to be repaid having been surrendered as aforesaid, such Convertible Debt Securities shall, unless purchased in accordance with Section 1404, on the Repayment Date become due and payable at the price therein specified and from and after the Repayment Date such Convertible Debt Securities shall cease to bear interest and shall be paid on the Repayment Date unless the Company shall default in the payment of such price in which case the Company shall continue to be obligated for the principal amount of such Convertible Debt Securities and shall be obligated to pay interest on such principal amount at the rate borne by such Convertible Debt Securities from time to time until payment in full of such principal amount. 74 81 ARTICLE XV. MEETINGS OF HOLDERS OF CONVERTIBLE DEBT SECURITIES Section 1501. Purposes for Which Meetings May Be Called. A meeting of Holders of Convertible Debt Securities of any series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other Act provided by this Indenture to be made, given or taken by Holders of Convertible Debt Securities of such series. Section 1502. Call, Notice and Place of Meetings. (a) The Trustee may at any time call a meeting of Holders of Convertible Debt Securities of any series for any purpose specified in Section 1501, to be held at such time and at such place in The City of New York, or in The City of Los Angeles, as the Trustee shall determine. Notice of every meeting of Holders of Convertible Debt Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting. (b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 25% in principal amount of the Outstanding Convertible Debt Securities of any series shall have requested the Trustee to call a meeting of the Holders of Convertible Debt Securities of such series for any purpose specified in Section 1501, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or the Holders of Convertible Debt Securities of such series in the amount above specified, as the case may be, may determine the time and the place in The City of New York, or in The City of Los Angeles, for such meeting and may call such meeting for such purposes by giving notice thereof as provided in subsection (a) of this Section. Section 1503. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting of Holders of Convertible Debt Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Convertible Debt Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Convertible Debt Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Convertible Debt Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its counsel. Section 1504. Quorum; Action. The Persons entitled to vote a majority in principal amount of the Outstanding Convertible Debt Securities of a series shall constitute a quorum for a meeting of Holders of 75 82 Convertible Debt Securities of such series. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Convertible Debt Securities of such series, be dissolved. In the absence of a quorum in any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairperson of the meeting prior to the adjournment of such adjourned meeting. Notice of this reconvening of any adjourned meeting shall be given as provided in Section 1502(a), except that such notice need be given only once not less than 5 days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Convertible Debt Securities of such series which shall constitute a quorum. Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of majority in principal amount of the Outstanding Convertible Debt Securities of that series, provided, however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Convertible Debt Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Convertible Debt Securities of that series. Any resolution passed or decision taken at any meeting of Holders of Convertible Debt Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Convertible Debt Securities of such series, whether or not present or represented at the meeting. Section 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings. (a) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Convertible Debt Securities of such series in regard to proof of the holding of Convertible Debt Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Convertible Debt Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof. (b) The Trustee shall, by an instrument in writing, appoint a temporary chairperson of the meeting, unless the meeting shall have been called by the Company or by 76 83 Holders of Convertible Debt Securities as provided in Section 1502(b), in which case the Company or the Holders of Convertible Debt Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairperson. A permanent chairperson and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Convertible Debt Securities of such series represented at the meeting. (c) At any meeting each Holder of a Convertible Debt Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Convertible Debt Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Convertible Debt Security challenged as not Outstanding and ruled by the chairperson of the meeting not to be Outstanding. The chairperson of the meeting shall have no right to vote, except as a Holder of a Convertible Debt Security of such series or proxy. (d) Any meeting of Holders of Convertible Debt Securities of any series duly called pursuant to Section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Convertible Debt Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice. Section 1506. Counting Votes and Recording Action of Meetings. The vote upon any resolution submitted to any meeting of Holders of Convertible Debt Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Convertible Debt Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Convertible Debt Securities of such series held or represented by them. The permanent chairperson of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the proceedings of each meeting of Holders of Convertible Debt Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502 and, if applicable, Section 1501. Each copy shall be signed and verified by the affidavits of the permanent chairperson and secretary of the meeting and one such copy shall be delivered to the Company, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated. 77 84 ARTICLE XVI. DEFEASANCE Section 1601. Termination of Company's Obligations. If this Section 1601 is specified, as contemplated by Section 301, to be applicable to any series of Convertible Debt Securities and if the Company deposits irrevocably in trust with the Trustee money and/or Government Obligations the payments of principal and interest on which when due (and without reinvestment) will provide money in such amounts as will (together with any money irrevocably deposited in trust with the Trustee, without investment) be sufficient to pay the principal of (and premium, if any) and any installment of principal of (and premium, if any) or interest when due on the Convertible Debt Securities of such series on the Stated Maturity of such principal or interest or, if such series may be redeemed by the Company prior to the Stated Maturity thereof and the Company shall have given irrevocable instructions to the Trustee to effect such redemption, at the date fixed for such redemption pursuant to Article XI, and any mandatory sinking fund, repayment or analogous payments thereon on the scheduled due dates therefor, the Company's obligations under Sections 801, 803, 804 and 1005 and any other covenant determined pursuant to Section 301 to be subject to this Section shall terminate and Sections 501(4) (with respect to Sections 801, 803, 804 and 1005), 501(5), 501(6), 501(7) and 501(8) (if specified as contemplated by Section 301) shall be deemed not to be an Event of Default, in each case with respect to the Convertible Debt Securities of the series for which such deposit was made; provided, however, that (i) no Event of Default with respect to the Convertible Debt Securities of such series under Section 501(6) or 501(7) or event that with notice or lapse of time or both would constitute such an Event of Default shall have occurred and be continuing on the 91st day after such date, (ii) such deposit will not result in a breach of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound, and (iii) such termination shall not relieve the Company of its obligations under the Convertible Debt Securities of such series and this Indenture to pay when due the principal of (and premium, if any) and interest and additional amounts on such Convertible Debt Securities if such amounts are not paid (or payment is not provided for) when due from the money and Government Obligations (and the proceeds thereof) so deposited. It shall be a condition to the deposit of cash and/or Government Obligations and the termination of the Company's obligations pursuant to the provisions of this Section with respect to the Convertible Debt Securities of any series under Sections 801, 803, 804 and 1005 and any other covenant determined pursuant to Section 301 to be subject to this Section and the inapplicability of the Events of Default contained in Sections 501(4), 501(5), 501(6), 501(7) and 501(8) to the extent set forth above pursuant to the provisions of this Section with respect to Convertible Debt Securities of any series that the Company deliver to the Trustee (i) an Officers' Certificate to the effect that under the laws in effect on the date such money and/or Government Obligations are deposited with the Trustee, the amount thereof will be sufficient, after payment of all Federal, state and local taxes in respect thereof payable by the Trustee, to pay principal (and premium, if any) and interest when due on the Convertible Debt Securities of such series; and (ii) an Officers' Certificate and an Opinion of Counsel, each stating that all conditions 78 85 precedent herein provided for relating to the defeasance contemplated in this Section have been complied with. It shall be an additional condition to the deposit of cash and/or Government Obligations and the termination of the Company's obligations pursuant to the provisions of this Section under Sections 801, 803, 804 and 1005 and any other covenant determined pursuant to Section 301 to be subject to this Section and the inapplicability of the Events of Default contained in Section 501(4), 501(5), 501(6), 501(7) and 501(8) to the extent set forth above pursuant to the provisions of this Section, with respect to the Convertible Debt Securities of any series then listed on the New York Stock Exchange, that the Company deliver an Opinion of Counsel that the Convertible Debt Securities of such series will not be delisted from the New York Stock Exchange as a result of such deposit and termination. After a deposit as provided herein, the Trustee shall, upon Company Request, acknowledge in writing the discharge of the Company's obligations pursuant to the provisions of this Section with respect to the Convertible Debt Securities of such series under Sections 801, 803, 804 and 1005 and any other covenant determined pursuant to Section 301 to be subject to this Section and the inapplicability of the Events of Default contained in Sections 501(4), 501(5), 501(6), 501(7) and 501(8) to the extent set forth above. Section 1602. Repayment to Company. The Trustee and any Paying Agent shall promptly pay to the Company upon Company Request any money or Government Obligations not required for the payment of the principal of (and premium, if any) and interest on the Convertible Debt Securities of any series for which money or Government Obligations have been deposited pursuant to Section 1601 held by them at any time. The Trustee and any Paying Agent shall promptly pay to the Company upon Company Request any money held by them for the payment of principal (and premium, if any) and interest that remains unclaimed for two years after the Maturity of the Convertible Debt Securities for which a deposit has been made pursuant to Section 1601. After such payment to the Company, the Holders of the Convertible Debt Securities of such series shall thereafter, as unsecured general creditors, look only to the Company for the payment thereof. Section 1603. Indemnity for Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the deposited Government Obligations or the principal or interest received on such Government Obligations. 79 86 IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, and their respective corporate seals to be hereunto affixed and attested, all as of the day and year first above written. FIDELITY NATIONAL FINANCIAL, INC. By: _________________________________ Title: _________________________________ _________________________________ By: _________________________________ Title: _________________________________ 80 87 STATE OF CALIFORNIA ) )SS. COUNTY OF ORANGE ) On the ____ day of __________, 1998, before me personally came ___________________, to me known, who, being duly sworn, did depose and say that he/she resides at ______________________________; that he is a _________________ of Fidelity National Financial, Incorporated, a corporation described in and which executed the above instrument; that he/she knows the seal of said corporation; that it was so affixed pursuant to the authority of the Board of Directors of said corporation; and that he/she signed his/her name thereto pursuant to like authority. ________________________________________ Notary Public 88 STATE OF ____________ ) )SS. COUNTY OF ___________ ) On the _____ day of ______________, 1998, before me personally came ________________, to me known, who, being duly sworn, did depose and say that he/she resides at _______________________________________________; that he/she is an ________________ ________________________________________ of ______________________________, a _____________________ described in and which executed the above instrument; that he/she knows the seal of said corporation; that it was so affixed pursuant to the authority of the Board of Directors of said corporation; and that he/she signed his/her name thereto pursuant to like authority. ________________________________________ Notary Public EX-4.2 5 FORM OF CERTIFICATE OF DESIGNATIONS 1 EXHIBIT 4.2 FORM OF CERTIFICATE OF DESIGNATIONS OF PREFERRED STOCK FIDELITY NATIONAL FINANCIAL, INC. -------------------------------- CERTIFICATE OF DESIGNATIONS Pursuant to Section 151 of the Delaware General Corporation Law -------------------------------- [CUMULATIVE] [CONVERTIBLE] PREFERRED STOCK, SERIES __ (Par Value [$.0001] Per Share) -------------------------------- 2 FIDELITY NATIONAL FINANCIAL, INC. a corporation organized and existing under the laws of the State of Delaware (the "Corporation"), HEREBY CERTIFIES that the following resolutions were duly adopted by the Board of Directors of the Corporation (the "Board"), pursuant to authority conferred upon the Board by the provisions of the Certificate of Incorporation of the Corporation, which authorizes the issuance of up to 3,000,000 shares of preferred stock, par value [$.0001] per share, (the "Preferred Stock"): "RESOLVED that the issuance of a series of Preferred Stock, par value [$.0001] per share, of the Corporation is hereby authorized and the designation, preferences and relative, participating, optional, and other special rights, and qualifications, limitations and restrictions thereof, in addition to those set forth in the Certificate of Incorporation of the Corporation, are hereby fixed as follows: [CUMULATIVE] [CONVERTIBLE] PREFERRED STOCK, SERIES __ 1. DESIGNATION AND NUMBER OF SHARES. (a) The designation of the series of preferred stock, par value [$.0001] per share, provided for herein shall be "[Cumulative] [Convertible] Preferred Stock, Series ___" (hereinafter referred to as the `Series __ Preferred Stock') and the number of authorized shares constituting the Series __ Preferred Stock is _________. The number of authorized shares of Series __ Preferred Stock may be reduced by further resolution duly adopted by the Board and by the filing of a certificate pursuant to the provisions of the Delaware General Corporation Law stating that such reduction has been so authorized, but the number of authorized shares of Series __ Preferred Stock shall not be increased. (b) All shares of Series __ Preferred Stock purchased, redeemed, or converted by the Corporation shall be retired and cancelled and shall be restored to the status of authorized but unissued shares of preferred stock, without designation as to series, and may thereafter be issued [, but not as shares of Series __ Preferred Stock]. 2. DIVIDENDS. (a) Holders of shares of Series __ Preferred Stock will be entitled to receive, when and as declared by the Board or a duly authorized committee thereof, out of assets of the Corporation legally available for payment, an annual cash dividend of $_____ per share, payable quarterly on _____________, ______________, ______________ and _____________ of each year, commencing _____________, ____. [Dividends on shares of the Series __ Preferred Stock will be cumulative from the date of initial issuance of such shares of Series __ Preferred Stock.] Dividends will be payable, in arrears, to holders of record as they appear on the stock books of the Corporation on such record dates, not more than [60] days nor less than [10] days preceding the payment dates thereof, as shall be fixed by the Board or a duly authorized committee thereof. The amount of dividends payable per share for each dividend period shall be computed by dividing by four the $______ annual rate. The amount of dividends payable for the initial dividend period or any period shorter than a full dividend period shall be calculated on the basis of a 360-day year of twelve 30-day months. -2- 3 (b) (i) No dividends shall be declared or paid or set apart for payment on any stock of the Corporation ranking, as to dividends, on a parity with or junior to Series __ Preferred Stock for any period unless full [cumulative] dividends have been declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on shares of Series __ Preferred Stock for all dividend payment periods terminating on or prior to the date of payment of such full [cumulative] dividends. Until dividends are paid in full, as aforesaid, on the shares of Series __ Preferred Stock and any other series of preferred stock ranking on a parity as to dividends with Series __ Preferred Stock, all dividends declared upon shares of Series __ Preferred Stock and any other series of preferred stock ranking on a parity as to dividends with Series __ Preferred Stock shall be declared pro rata so that the amount of dividends declared per share on Series __ Preferred Stock and such other series of preferred stock shall in all cases bear to each other the same ratio that accrued dividends per share on the shares of Series __ Preferred Stock and such other series of preferred stock bear to each other. Holders of shares of Series __ Preferred Stock shall not be entitled to any dividend, whether payable in cash, property, or stock, in excess of full [cumulative] dividends, as herein provided, on Series __ Preferred Stock. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on Series __ Preferred Stock which may be in arrears. (ii) So long as any shares of Series __ Preferred Stock are outstanding, no dividend (except (a) dividends or distributions paid in shares of, or options, warrants, or rights to subscribe for or purchase shares of, the common stock, par value [$0.0001] per share, of the Corporation (the "Common Stock") or any other stock ranking junior to Series __ Preferred Stock as to dividends and upon liquidation and (b) pro rata dividends, as provided in paragraph (b)(i) of this Section 2), shall be declared or paid or set aside for payment or other distribution declared or made upon the Common Stock or any other capital stock of the Corporation ranking junior to or on a parity with Series __ Preferred Stock as to dividends or upon liquidation, nor shall the Common Stock or any other capital stock of the Corporation ranking junior to or on a parity with Series __ Preferred Stock as to dividends or upon liquidation be redeemed, purchased, or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption, purchase or other acquisition of any shares of any such stock) by the Corporation (except by conversion into or exchange for stock of the Corporation ranking junior to Series __ Preferred Stock as to dividends and upon liquidation), unless, in each case, the full [cumulative] dividends on all outstanding shares of Series __ Preferred Stock shall have been paid or declared and set aside for payment of the then-current dividend payment period and all past dividend payment periods. 3. REDEMPTION. [(a) The shares of Series __ Preferred Stock may be redeemed at the option of the Corporation, as a whole, or from time to time in part, at any time, upon not less than 30 nor -3- 4 more than 60 days' prior notice mailed to the holders of the shares to be redeemed at their addresses as shown on the stock books of the Corporation; provided, however, that shares of Series __ Preferred Stock shall not be redeemable prior to ______________, ____. Subject to the foregoing, shares of Series __ Preferred Stock are redeemable at the following redemption prices per share (expressed as a percentage of the liquidation preference thereof), if redeemed during the 12-month period beginning ______________ in the year indicated: Year Price Year Price ---- ----- ---- ----- % % and 100% if redeemed on or after ________________, ____, in each case together with an amount equal to all dividends (whether or not earned or declared) accrued and accumulated and unpaid to, but excluding, the date fixed for redemption.] [(b) The shares of Series __ Preferred Stock will be redeemed by the Corporation on the following dates and at the following prices per share (expressed as a percentage of the liquidation preference thereof): Number of Shares Date to be Redeemed Price ---- ---------------- ----- % In each case, the Corporation will also pay to the holders of the Shares to be redeemed an amount equal to all dividends (whether or not earned or declared) accrued and accumulated and unpaid to, but excluding the date fixed for redemption as specified above.] (c) The redemption price will be paid by the Corporation in [cash]. [The redemption price will be paid by the Corporation from the proceeds of an issuance of [specify form of capital stock. If such issuance does not occur [prior to ______], or the proceeds to the Corporation of such issuance are less than the redemption price specified above, then all shares of Series __ Preferred Stock will automatically be converted into shares of Common Stock pursuant to Section 4.] (d) If fewer than all of the outstanding shares of Series __ Preferred Stock are to be redeemed, the number of shares to be redeemed shall be determined by the Board and such shares shall be redeemed pro rata from the holders of record of shares of Series __ Preferred Stock in proportion to the number of such shares held by such holders (with adjustments to avoid redemption of fractional shares). (e) If the Corporation shall redeem shares of Series __ Preferred Stock, notice of such redemption shall be mailed or caused to be mailed by the Corporation by first class mail, postage prepaid, to each holder of the shares to be redeemed, at such holder's address as the same -4- 5 appears on the stock books of the Corporation. Such notice shall be so mailed not less than 30 nor more than 60 days prior to the date fixed for redemption (unless the Corporation has issued Depositary Shares representing interests in Series __ Preferred Stock, in which case notice will be mailed to the depositary not less than 40 nor more than 70 days prior to the date fixed for redemption). Each such notice shall state (i) the redemption date, (ii) the number of shares of Series __ Preferred Stock to be redeemed, (iii) the redemption price, (iv) the place or places where certificates for such shares of Series __ Preferred Stock are to be surrendered for payment of the redemption price, (v) that dividends on the shares to be redeemed will cease to accrue on such redemption date, and (vi) the date upon which the holders' conversion rights (as hereinafter defined) as to such shares terminate. If fewer than all shares held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of shares to be redeemed from such holder. (f) Notwithstanding the foregoing provisions of subsection (a) of this Section 3, if any dividends on shares of Series __ Preferred Stock are in arrears, no shares of Series __ Preferred Stock shall be redeemed unless all outstanding shares of Series __ Preferred Stock are simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire any shares of Series __ Preferred Stock; provided, however, that the foregoing shall not prevent the Corporation from purchasing or acquiring shares of Series __ Preferred Stock pursuant to a purchase or exchange offer made on the same terms to all holders of outstanding shares of Series __ Preferred Stock. (g) If notice of redemption has been given under subsection (e) of this Section 3, then, from and after the redemption date for the shares of Series __ Preferred Stock called for redemption, dividends on the shares of Series __ Preferred Stock so called for redemption shall cease to accrue and such shares shall no longer be deemed to be outstanding, and all rights of the holders thereof as shareholders of the Corporation (except the right to receive the redemption price) shall cease. Upon surrender in accordance with such notice of the certificates for any shares so redeemed (properly endorsed or assigned for transfer, if the Board or a duly authorized committee thereof shall so require and the notice shall so state), such shares shall be redeemed by the Corporation at the redemption price aforesaid. If fewer than all of the shares represented by any such certificate are redeemed, a new certificate shall be issued representing the unredeemed shares without cost to the holder thereof. [4. CONVERSION.] [(a) Subject to and upon compliance with the provisions of this Section 4, each holder of Series __ Preferred Stock shall have the right, at each such holder's option, at any time, to convert any or all of the shares of Series __ Preferred Stock held by each such holder into the number of fully paid and nonassessable shares of Common Stock (calculated as to each conversion, for the purpose of determining the amount of any cash payments provided for under subsection (c) of this Section 4, to the nearest 1/100 of a share of Common Stock, with 1/200 of a share of Common Stock being rounded upward) obtained by dividing the liquidation preference of a share of Series __ Preferred Stock by the Conversion Price (as defined below) and multiplying such resulting number by the number of shares of Series __ Preferred Stock to -5- 6 be converted, and by surrender of such shares of Series __ Preferred Stock so to be converted, such surrender to be made in the manner provided in subsection (b) of this Section 4; provided, however, that the right to convert shares called for redemption pursuant to Section 3 shall terminate at the close of business on the date fixed for such redemption unless the Corporation shall default in making payment of the amount payable upon such redemption.] [The term "Applicable Price" means (i) in the event of a Fundamental Change (as hereinafter defined) in which the holders of the Common Stock receive only cash, the amount of cash received by a holder of one share of Common Stock and (ii) in the event of any other Fundamental Change, the average of the reported last sale prices for one share of the Common Stock (determined as set forth in paragraph (d)(vi) of this Section 4) during the ten Trading Days (as defined in paragraph (d)(vi) of this Section 4) prior to the record date for the determination of the holders of Common Stock entitled to receive cash, securities, property, or other assets in connection with such Fundamental Change, or, if there is no such record date, prior to the date upon which the holders of Common Stock shall have the right to receive such cash, securities, property, or other assets.] For purposes of this Section 4, the term "Common Stock" shall mean the Common Stock of the Corporation, par value $0.0001 per share, as the same exists at the date of this Certificate of Designations or as such stock may be constituted from time to time, except that for purposes of subsection (e) of this Section 4, the term "Common Stock" shall also mean and include stock of the Corporation of any class, whether now or hereafter authorized, which shall have the right to participate in the distribution of either earnings or assets of the Corporation without limit as to amount or percentage. [The term "Common Stock Fundamental Change" means any Fundamental Change in which more than 50% (by value as determined in good faith by the Board) of the consideration received by holders of Common Stock consists of common stock that, for the ten Trading Days (as defined in paragraph (d)(vi) of this Section 4) prior to such Fundamental Change, has been admitted for listing on a national securities exchange or quoted on the National Market System of the National Association of Securities Dealers, Inc. Automated Quotations System.] The term "Conversion Price" shall mean $_____, as adjusted in accordance with the provisions of this Section 4. [The term "Fundamental Change" means the occurrence of any transaction or event in connection with which all or substantially all the Common Stock shall be exchanged for, converted into, or acquired for, or shall constitute solely the right to receive, cash, securities, property, or other assets (whether by means of an exchange offer, liquidation, tender offer, consolidation, merger, combination, reclassification, recapitalization, or otherwise). In the case of a plan involving more than one such transaction or event, for purposes of adjustment of the Conversion Price, such Fundamental Change shall be deemed to have occurred when substantially all the Common Stock shall have been exchanged for, converted into, or acquired for, or shall constitute solely the right to receive, such cash, securities, property, or other assets, -6- 7 but the adjustment shall be based upon the consideration that the holders of Common Stock received in the transaction or event as a result of which more than 50% of the Common Stock shall have been exchanged for, converted into, or acquired for, or shall constitute solely the right to receive, such cash, securities, property, or other assets.] [The term "Non-Stock Fundamental Change" means any Fundamental Change other than a Common Stock Fundamental Change.] [The term "Purchaser Stock Price" means, with respect to any Common Stock Fundamental Change, the average of the reported last sale prices for one share of the common stock received by holders of Common Stock in such Common Stock Fundamental Change (determined as set forth in paragraph (d)(vi) of this Section 4 as if such paragraph were applicable to such common stock) during the ten Trading Days (as defined in paragraph (d)(vi) of this Section 4) prior to the record date for the determination of the holders of Common Stock entitled to receive such common stock or, if there is no such record date, prior to the date upon which the holders of Common Stock shall have the right to receive such common stock.] [The term "Reference Market Price" shall initially mean $__________, and, in the event of any adjustment to the Conversion Price pursuant to paragraphs (d)(i), (d)(ii), (d)(iii), (d)(iv) or (d)(v)of this Section 4, the Reference Market Price shall also be adjusted so that the ratio of the Reference Market Price to the Conversion Price after giving effect to any such adjustment shall always be the same as the ratio of $_______ to the Conversion Price set forth in this Certificate of Designations (without regard to any adjustment thereto).] (b) In order to exercise the conversion privilege, the holder of each share of Series __ Preferred Stock to be converted shall surrender the certificate representing such share at the office of the conversion agent for the Series __ Preferred Stock in [__________________], appointed for such purpose by the Corporation, with the Notice of Election to Convert on the back of such certificate completed and signed. Unless the shares issuable on conversion are to be issued in the same name as the name in which such share of Series __ Preferred Stock is registered, each share surrendered for conversion shall be accompanied by instruments of transfer, in form satisfactory to the Corporation, duly executed by the holder or the holder's duly authorized attorney, and by an amount sufficient to pay any transfer or similar tax. The holders of shares of Series __ Preferred Stock at the close of business on a dividend payment record date shall be entitled to receive the dividend payable on such shares (except that holders of shares called for redemption on a redemption date between such record date and the dividend payment date shall not be entitled to receive such dividend on such dividend payment date) on the corresponding dividend payment date, notwithstanding the conversion thereof or the Corporation's default in payment of the dividend due on such dividend payment date. However, shares of Series __ Preferred Stock surrendered for conversion during the period between the close of business on any dividend payment record date and the opening of business on the corresponding dividend payment date (except shares called for redemption on a redemption date during such period) must be accompanied by payment of an amount equal to the dividend payable on such shares on such dividend payment date. A holder of shares of Series __ -7- 8 Preferred Stock on a dividend payment record date who (or whose transferee) tenders any of such shares for conversion into shares of Common Stock on a dividend payment date will receive the dividend payable by the Corporation on such shares of Series __ Preferred Stock on such date, and the converting holder need not include payment in the amount of such dividend upon surrender of shares of Series __ Preferred Stock for conversion. Except as provided above, the Corporation shall make no payment or allowance for unpaid dividends, whether or not in arrears, on converted shares or for dividends on the shares of Common Stock issued upon such conversion. As promptly as practicable after the surrender of the certificates for shares of Series __ Preferred Stock as aforesaid, the Corporation shall issue and shall deliver at the office of the conversion agent to such holder, or on such holder's written order, a certificate or certificates for the number of full shares of Common Stock issuable upon the conversion of such shares in accordance with the provisions of this Section 4, and any fractional interest in respect of a share of Common Stock arising upon such conversion shall be settled as provided in subsection (c) of this Section 4. Each conversion shall be deemed to have been effected immediately prior to the close of business on the date on which the certificates for shares of Series __ Preferred Stock shall have been surrendered and such notice (and, if applicable, payment of an amount equal to the dividend payable on such shares) received by the Corporation as aforesaid, and the person or persons in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become the holder or holders of record of the shares represented thereby at such time on such date, and such conversion shall be at the Conversion Price in effect at such time on such date, unless the stock transfer books of the Corporation shall be closed on such date, in which event such person or persons shall be deemed to have become such holder or holders of record at the close of business on the next succeeding day on which such stock transfer books are open, but such conversion shall be at the Conversion Price in effect on the date upon which such shares shall have been surrendered and such notice (and, if applicable, payment) received by the Corporation. All shares of Common Stock delivered upon conversion of the Series __ Preferred Stock will upon delivery be duly and validly issued and fully paid and nonassessable, free of all liens and charges and not subject to any preemptive rights. (c) In connection with the conversion of any shares of Series __ Preferred Stock, no fractional shares or scrip representing fractions of shares of Common Stock shall be issued upon conversion of Series __ Preferred Stock. Instead of any fractional interest in a share of Common Stock which would otherwise be deliverable upon the conversion of a share of Series __ Preferred Stock or a fraction thereof, the Corporation shall pay to the holder of such share of Series __ Preferred Stock or fraction thereof an amount in cash (computed to the nearest cent, with one-half cent being rounded upward) equal to the reported last sale price (as defined in paragraph (d)(vi) of this Section 4) of the Common Stock on the Trading Day (as defined in paragraph (d)(vi) of this Section 4) next preceding the day of conversion multiplied by the fraction of a share of Common Stock represented by such fractional interest. If more than one share of Series __ Preferred Stock shall be surrendered for conversion at one time by the same holder, the number of full shares of Common Stock issuable upon conversion thereof shall be computed on the basis of the aggregate liquidation preference of the shares of Series __ Preferred Stock so surrendered. -8- 9 (d) The Conversion Price shall be adjusted from time to time as follows: (i) In case the Corporation shall (x) pay a dividend or make a distribution on the Common Stock in shares of Common Stock, (y) subdivide the outstanding Common Stock into a greater number of shares, or (z) combine the outstanding Common Stock into a smaller number of shares, the Conversion Price shall be adjusted so that the holder of any share of Series __ Preferred Stock thereafter surrendered for conversion shall be entitled to receive the number of shares of Common Stock of the Corporation which such holder would have owned or have been entitled to receive after the happening of any of the events described above had such share been converted immediately prior to the record date in the case of a dividend or the effective date in the case of subdivision or combination. An adjustment made pursuant to this paragraph (i) shall become effective immediately after the record date in the case of a dividend, except as provided in paragraph (ix) below, and shall become effective immediately after the effective date in the case of a subdivision or combination. [(ii) [Except for [list exempted issuances], in] [In] case the Corporation shall issue rights or warrants to all holders of the Common Stock entitling them (for a period expiring within 45 days after the record date mentioned below) to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share of Common Stock (as defined for purposes of this paragraph (ii) in paragraph (vi) below), at the record date for the determination of shareholders entitled to receive such rights or warrants, the Conversion Price in effect immediately prior thereto shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of issuance of such rights or warrants by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on the date of issuance of such rights or warrants plus the number of additional shares of Common Stock receivable upon exercise of such rights or warrants. Such adjustment shall be made successively whenever any such rights or warrants are issued, and shall become effective immediately, except as provided in paragraph (ix) below, after such record date. In determining whether any rights or warrants entitle the holders of the Series __ Preferred Stock to subscribe for or purchase shares of Common Stock at less than such current market price, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Corporation for such rights or warrants plus the exercise price thereof, the value of such consideration or exercise price, as the case may be, if other than cash, to be determined by the Board.] -9- 10 [(iii) In case the Corporation shall distribute to all holders of Common Stock any shares of capital stock of the Corporation (other than Common Stock) or evidences of its indebtedness or assets (excluding cash dividends or distributions paid from retained earnings of the Corporation) or rights or warrants to subscribe for or purchase any of its securities (excluding those rights or warrants referred to in paragraph (ii) above) (any of the foregoing being hereinafter in this paragraph (iii) called the "Securities"), then, in each such case, unless the Corporation elects to reserve such Securities for distribution to the holders of the Series __ Preferred Stock upon the conversion of the shares of Series __ Preferred Stock so that any such holder converting shares of Series __ Preferred Stock will receive upon such conversion, in addition to the shares of the Common Stock to which such holder is entitled, the amount and kind of such Securities which such holder would have received if such holder had, immediately prior to the record date for the distribution of the Securities, converted its shares of Series __ Preferred Stock into Common Stock, the Conversion Price shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the date of such distribution by a fraction, the numerator of which shall be the current market price per share (as defined for purposes of this paragraph (iii) in paragraph (vi) below) of the Common Stock on the record date mentioned above less the then fair market value (as determined by the Board, whose determination shall, if made in good faith, be conclusive) of the portion of the Securities so distributed applicable to one share of Common Stock, and the denominator of which shall be the current market price per share (as defined in paragraph (vi) below) of the Common Stock; provided, however, that in the event the then fair market value (as so determined) of the portion of the Securities so distributed applicable to one share of Common Stock is equal to or greater than the current market price per share (as defined in paragraph (vi) below) of the Common Stock on the record date mentioned above, in lieu of the foregoing adjustment, adequate provision shall be made so that each holder of shares of Series __ Preferred Stock shall have the right to receive the amount and kind of Securities such holder would have received had such holder converted each such share of Series __ Preferred Stock immediately prior to the record date for the distribution of the Securities. Such adjustment shall become effective immediately, except as provided in paragraph (ix) below, after the record date for the determination of shareholders entitled to receive such distribution.] [IF THERE ARE ANY RIGHTS AGREEMENTS INTO WHICH THE CORPORATION HAS ENTERED WHICH PROVIDE RIGHTS TO SUBSCRIBE OR PURCHASE SHARES OF THE CORPORATION'S COMMON STOCK, INSERT THE FOLLOWING LANGUAGE, WITH REFERENCES TO THE SPECIFIC RIGHTS AGREEMENTS:] [(iv) In the event that the rights issued under the [Insert name(s) of agreements] dated as of [Insert dates of agreements] (the "Rights Agreement[s]") become exercisable and the holders thereof are entitled to subscribe for or purchase shares of Common Stock at a price per share less than the current market price per share of Common Stock (as defined for purposes of this paragraph (iv) in paragraph (vi) below), the Conversion Price in effect immediately prior to the [Distribution Date (as defined in the Rights Agreement)] shall be adjusted so that the same shall equal the price determined by multiplying the Conversion Price in effect immediately prior to the Distribution Date by a fraction, the numerator of which shall be the number of shares of Common Stock outstanding on the Distribution Date plus the number of shares of Common Stock which the aggregate offering price of the total number of shares of Common Stock so offered would purchase at such current market price, and the denominator of which shall be the number of shares of Common Stock outstanding on the Distribution Date plus the number of additional shares of Common Stock receivable upon exercise of the rights. In determining the -10- 11 aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Corporation for such rights plus the exercise price thereof, the value of such consideration or exercise price, as the case may be, if other than cash, to be determined by the Board.] [(v) If, pursuant to paragraph (ii), (iii) or (iv) above, the Conversion Price at which a share of Series __ Preferred Stock is convertible shall have been adjusted because the Corporation has declared a dividend or made a distribution on the outstanding shares of Common Stock in the form of any right or warrant to purchase securities of the Corporation, or the Corporation has issued any such right or warrant, then, upon the expiration of any such unexercised right or unexercised warrant, the Conversion Price shall forthwith be adjusted to equal the Conversion Price that would have applied had such right or warrant never been declared, distributed, or issued.] [(vi) For the purpose of any computation under paragraph (ii) [or (iv)] above, the current market price per share of Common Stock on any date shall be deemed to be the average of the reported last sale prices for the 30 consecutive Trading Days (as defined below) commencing 45 Trading Days before the date in question. For the purpose of any computation under paragraph (iii) above, the current market price per share of Common Stock on any date shall be deemed to be the average of the reported last sales prices for the ten consecutive Trading Days before the date in question. The reported last sale price for each day (whether for purposes of paragraph (ii) or paragraph (iii) [or paragraph (iv)]) shall be the reported last sale price, regular way, or, in case no sale takes place on such day, the average of the reported closing bid and asked prices, regular way, in either case as reported on the New York Stock Exchange Composite Tape or, if the Common Stock is not listed or admitted to trading on the New York Stock Exchange, on the principal national securities exchange on which the Common Stock is listed or admitted to trading or, if not listed or admitted to trading on any national securities exchange, on the National Market System of the National Association of Securities Dealers, Inc. Automated Quotations System ("NASDAQ") or, if the Common Stock is not quoted on such National Market System, the average of the closing bid and asked prices on such day in the over-the-counter market as reported by NASDAQ or, if bid and asked prices for the Common Stock on each such day shall not have been reported through NASDAQ, the average of the bid and asked prices for such day as furnished by any New York Stock Exchange member firm regularly making a market in the Common Stock selected for such purpose by the Board or a committee thereof or, if no such quotations are available, the fair market value of the Common Stock as determined by a New York Stock Exchange member firm regularly making a market in the Common Stock selected for such purpose by the Board or a committee thereof. As used herein, the term `Trading Day' with respect to Common Stock means (x) if the Common Stock is listed or admitted for trading on the New York Stock Exchange or another national securities exchange, a day on which the New York Stock Exchange or such other national securities exchange is open for business or (y) if the Common Stock is quoted on the National Market System of NASDAQ, a day on which trades may be made on such National Market System or (z) otherwise, any day other than a Saturday or Sunday or a day on which banking institutions in the State of New York are authorized or obligated by law or executive order to close.] -11- 12 (vii) No adjustment in the Conversion Price shall be required unless such adjustment would require an increase or decrease of at least 1% in such price; provided, however, that any adjustments which by reason of this paragraph (vii) are not required to be made shall be carried forward and taken into account in any subsequent adjustment; and provided further that adjustment shall be required and made in accordance with the provisions of this Section 4 (other than this paragraph (vii)) not later than such time as may be required in order to preserve the tax free nature of a distribution to the holders of Common Stock. All calculations under this Section 4 shall be made to the nearest cent or to the nearest 1/100 of a share, as the case may be, with one-half cent and 1/200 of a share, respectively, being rounded upward. Anything in this subsection (d) to the contrary notwithstanding, the Corporation shall be entitled to make such reductions in the Conversion Price, in addition to those required by this subsection (d), as it in its discretion shall determine to be advisable in order that any stock dividend, subdivision of shares, distribution of rights or warrants to purchase stock or securities, or distribution of other assets (other than cash dividends) hereafter made by the Corporation to its shareholders shall not be taxable. (viii) Whenever the Conversion Price is adjusted as herein provided, the Corporation shall promptly file with any conversion agent an officers' certificate, signed by the Chairman, the President or any Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary, or an Assistant Secretary of the Corporation, setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment. Promptly after delivery of such certificate, the Corporation shall prepare a notice of such adjustment of the Conversion Price setting forth the adjusted Conversion Price and the date on which such adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Price to the holders of shares of Series __ Preferred Stock at their addresses as shown on the stock books of the Corporation. (ix) In any case in which this subsection (d) provides that an adjustment shall become effective immediately after a record date for an event, the Corporation may defer until the occurrence of such event (y) issuing to the holder of any share of Series __ Preferred Stock converted after such record date and before the occurrence of such event the additional shares of Common Stock issuable upon such conversion by reason of the adjustment required by such event over and above the Common Stock issuable upon such conversion before giving effect to such adjustment and (z) paying to such holder any amount in cash in lieu of any fractional share of Common Stock pursuant to subsection (c) of this Section 4. (e) If: (i) the Corporation shall declare a dividend (or any other distribution) on the Common Stock (other than in cash out of retained earnings); or -12- 13 [(ii) [except for [list exempted issuances],] the Corporation shall authorize the granting to the holders of Common Stock of rights or warrants to subscribe for or purchase any shares of any class of capital stock of the Corporation or any other rights or warrants; or] (iii) there shall be any reclassification or change of the Common Stock (other than a subdivision or combination of the outstanding Common Stock and other than a change in the par value, or from par value to no par value, or from no par value to par value), or any consolidation, merger, or statutory share exchange to which the Corporation is a party and for which approval of any shareholders of the Corporation is required, or any sale or transfer of all or substantially all the assets of the Corporation as an entirety or any Fundamental Change; or (iv) there shall be a voluntary or involuntary dissolution, liquidation, or winding up of the Corporation, then the Corporation shall cause to be filed with the conversion agent and shall cause to be mailed to the holders of shares of the Series __ Preferred Stock at their addresses as shown on the stock books of the Corporation, at least [10] days prior to the applicable date hereinafter specified, a notice stating (y) the date on which a record is to be taken for the purpose of such dividend, distribution, or granting of rights or warrants, or, if a record is not to be taken, the date as of which the holders of Common Stock of record to be entitled to such dividend, distribution, or rights or warrants are to be determined, or (z) the date on which such reclassification, change, consolidation, merger, statutory share exchange, sale, transfer, Fundamental Change, dissolution, liquidation, or winding up is expected to become effective and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their shares of Common Stock for securities or other property deliverable upon such reclassification, change, consolidation, merger, statutory share exchange, sale, transfer, Fundamental Change, dissolution, liquidation, or winding up. Failure to give such notice or any defect therein shall not affect the legality or validity of the proceedings described in subsection (h) of this Section 4 or in paragraph (d)(i) [, (d)(ii), (d)(iii), or (d)(iv)] of this Section 4. (f) The Corporation covenants that it will at all times reserve and keep available, free from preemptive rights, out of the aggregate of its authorized but unissued shares of Common Stock, for the purpose of effecting conversions of the Series __ Preferred Stock, the full number of shares of Common Stock deliverable upon the conversion of all outstanding shares of Series __ Preferred Stock not theretofore converted. For purposes of this subsection (f), the number of shares of Common Stock which shall be deliverable upon the conversion of all outstanding shares of Series __ Preferred Stock shall be computed as if at the time of computation all such outstanding shares were held by a single holder. Before taking any action which would cause any adjustment reducing the Conversion Price below the then par value (if any) of the shares of Common Stock deliverable upon conversion of the Series __ Preferred Stock, the Corporation will take any corporate action which may, in the opinion of its counsel, be necessary in order that the Corporation may validly and legally issue fully paid and nonassessable shares of Common Stock at such adjusted Conversion Price. -13- 14 The Corporation will endeavor to list the shares of Common Stock required to be delivered upon conversion of the Series __ Preferred Stock prior to such delivery upon each national securities exchange, if any, upon which the outstanding Common Stock is listed at the time of such delivery. Prior to the delivery of any securities which the Corporation shall be obligated to deliver upon conversion of the Series __ Preferred Stock, the Corporation will endeavor to comply with all federal and state laws and regulations thereunder requiring the registration of such securities with, or any approval of or consent to the delivery thereof by, any governmental authority. (g) The Corporation will pay any and all documentary stamp or similar issue or transfer taxes payable in respect of the issue or delivery of shares of Common Stock on conversions of the Series __ Preferred Stock pursuant hereto; provided, however, that the Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue or delivery of shares of Common Stock in a name other than that of the holder of the Series __ Preferred Stock to be converted and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid. (h) Notwithstanding any other provision herein to the contrary, if any of the following events occur, namely (w) any reclassification or change of outstanding shares of Common Stock (other than a change in par value, or from par value to no par value, or from no par value to par value, or as a result of a subdivision or combination of the Common Stock), (x) any consolidation, merger, or combination of the Corporation with or into another corporation as a result of which holders of Common Stock shall be entitled to receive stock, securities, or other property or assets (including cash) with respect to or in exchange for such Common Stock, [(y) any sale or conveyance of the properties and assets of the Corporation as, or substantially as, an entirety to any other entity as a result of which holders of Common Stock shall be entitled to receive stock, securities, or other property or assets (including cash) with respect to or in exchange for such Common Stock,] or (z) any Fundamental Change (including any event referred to in the foregoing clauses [(w), (x), or (y)] that constitutes a Fundamental Change), then appropriate provision shall be made so that the holder of each share of Series __ Preferred Stock then outstanding shall have the right to convert such share into the kind and amount of the shares of stock and other securities or property or assets (including cash) that would have been receivable upon such reclassification, change, consolidation, merger, combination, sale, conveyance, or Fundamental Change by a holder of the number of shares of Common Stock issuable upon conversion of such share of Series __ Preferred Stock immediately prior to such reclassification, change, consolidation, merger, combination, sale, conveyance, or Fundamental Change [; provided, however, that, if the event referred to in clauses [(w) through (z)] above constitutes a Non-Stock Fundamental Change, each holder of Series __ Preferred Stock shall be entitled, upon conversion thereof, to receive such amount of shares of stock, other securities, or -14- 15 property or assets (including cash) as is determined by the number of shares of Common Stock receivable upon conversion at the Conversion Price as adjusted in accordance with clause (i) of the following paragraph of this subsection (h); and provided, further, that, if the event referred to in clauses [(w) through (z)] above constitutes a Common Stock Fundamental Change, the foregoing provisions of this subsection (h) shall not apply, but each holder of Series __ Preferred Stock shall be entitled, upon conversion thereof at any time following such Common Stock Fundamental Change, to receive such number of shares of common stock of the successor or acquiring entity as is determined by use of the Conversion Price as adjusted in accordance with clause (ii) of the following paragraph of this subsection (h)]. The adjustments described in this subsection (h) shall be subject to further adjustments as appropriate that shall be as nearly equivalent as may be practicable to the relevant adjustments provided for in this Section 4. If, in the case of any such consolidation, merger, combination, sale, conveyance, or Fundamental Change, the stock or other securities and property receivable thereupon by a holder of shares of Common Stock include shares of stock, securities, or other property or assets (including cash) of an entity other than the successor or acquiring entity, as the case may be, in such consolidation, merger, combination, sale, conveyance, or Fundamental Change, then the Corporation shall enter into an agreement with such other entity for the benefit of the holders of Series __ Preferred Stock that shall contain such provisions to protect the interests of such holders as the Board shall reasonably consider necessary by reason of the foregoing. [For purposes of calculating any adjustment to be made in connection with the occurrence of a Fundamental Change:] [(i) in the case of a Non-Stock Fundamental Change, the Conversion Price shall be deemed to be the lower of (1) the Conversion Price in effect immediately prior to such Non-Stock Fundamental Change and (2) the product of (a) the greater of the Applicable Price and the Reference Market Price and (b) a fraction, the numerator of which is $_____ and the denominator of which is the amount at which one share of Series __ Preferred Stock would be redeemed by the Corporation if the redemption date were the date of such Non-Stock Fundamental Change (such denominator being the sum of (x) the product of the percentage (expressed as a decimal) set forth in the table in Section 3 above or, for the period commencing ________________, ____, and ending ___________________, ____, the 12-month period commencing _______________, ____, the 12-month period commencing __________________, ____, and the 12-month period commencing ____________, ____, ____%, ____%, ____%, and ____%, respectively, and $_____, and (y) any then-accrued [and then-accumulated and unpaid] dividends on the Series __ Preferred Stock); provided, however, that if there were accrued [or accumulated and unpaid] dividends with respect to the Series __ Preferred Stock at the time of such Non-Stock Fundamental Change (`Passed Dividends') and if, thereafter, all (or any portion) of such Passed Dividends are paid by the Corporation, then the Conversion Price to be used in determining the amount of consideration to which holders of Series __ Preferred Stock who have not converted their shares of Series __ Preferred Stock shall be entitled upon conversion thereof shall be deemed to be the Conversion Price that would have been used in making such determination if all (or such portion) of such Passed Dividends had not been accrued or accumulated and unpaid at such time; and] -15- 16 [(ii) in the case of a Common Stock Fundamental Change, the Conversion Price of the shares of Series __ Preferred Stock immediately following such Common Stock Fundamental Change shall be the Conversion Price in effect immediately prior to such Common Stock Fundamental Change multiplied by a fraction, the numerator of which is the Purchaser Stock Price and the denominator of which is the Applicable Price; provided, however, that in the event of a Common Stock Fundamental Change in which (A) 100% by value of the consideration received by a holder of Common Stock is common stock of the successor, acquiror, or other third party (and cash, if any, is paid with respect to any fractional interests in such common stock resulting from such Common Stock Fundamental Change) and (B) all of the Common Stock of the Company shall have been exchanged for, converted into, or acquired for [common stock of the successor, acquiror, or other third party], the Conversion Price of the shares of Series __ Preferred Stock immediately following such Common Stock Fundamental Change shall be the Conversion Price in effect immediately prior to such Common Stock Fundamental Change multiplied by a fraction, the numerator of which is one (1) and the denominator of which is the number of shares of common stock of the successor, acquiror, or other third party received by a holder of one share of Common Stock as a result of such Common Stock Fundamental Change.]] 5. LIQUIDATION RIGHTS. (a) Upon the dissolution, liquidation, or winding up of the Corporation, the holders of the shares of Series __ Preferred Stock shall be entitled to receive and to be paid out of the assets of the Corporation available for distribution to its shareholders, before any payment or distribution shall be made on the Common Stock or any other class of stock ranking junior to Series __ Preferred Stock upon liquidation, the amount of $_____ per share, plus a sum equal to all dividends (whether or not earned or declared) on such shares accrued and unpaid thereon to the date of final distribution. (b) Neither the sale of all or substantially all of the property and assets of the Corporation, nor the merger or consolidation of the Corporation into or with any other corporation, nor the merger of any other corporation into [or with] the Corporation shall be deemed to be a dissolution, liquidation, or winding up, voluntary or involuntary, for the purposes of this Section 5. (c) After the payment to the holders of the shares of Series __ Preferred Stock of the full preferential amounts provided for in this Section 5, the holders of Series __ Preferred Stock, as such, shall have no right or claim to any of the remaining assets of the Corporation. (d) In the event the assets of the Corporation available for distribution to the holders of shares of Series __ Preferred Stock upon any dissolution, liquidation, or winding up of the Corporation, whether voluntary or involuntary, shall be insufficient to pay in full all amounts to which such holders are entitled pursuant to subsection (a) of this Section 5, no such distribution shall be made on account of any shares of any other series of preferred stock or other capital stock of the Corporation ranking on a parity with the shares of Series __ Preferred Stock -16- 17 upon such dissolution, liquidation, or winding up unless proportionate distributive amounts shall be paid on account of the shares of Series __ Preferred Stock, ratably, in proportion to the full distributable amounts for which holders of all such parity shares are respectively entitled upon such dissolution, liquidation, or winding up. (e) Subject to the rights of the holders of the shares of any series or class or classes of stock ranking on a parity with or prior to the shares of Series __ Preferred Stock upon liquidation, dissolution, or winding up, upon any liquidation, dissolution, or winding up of the Corporation, after payment shall have been made in full to the holders of the shares of Series __ Preferred Stock as provided in this Section 5, but not prior thereto, any other series or class or classes of stock ranking junior to the shares of Series __ Preferred Stock upon liquidation shall, subject to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the shares of Series __ Preferred Stock shall not be entitled to share therein. 6. RANKING. For the purposes of this resolution, any stock of any series or class or classes of the Corporation shall be deemed to rank: (a) prior to the shares of Series __ Preferred Stock, either as to dividends or upon liquidation, if the holders of such series or class or classes shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation, or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of Series __ Preferred Stock; (b) on a parity with shares of Series __ Preferred Stock, either as to dividends or upon liquidation, whether or not the dividend rates, dividend payment dates, or redemption or liquidation prices per share, or sinking fund provisions, if any, be different from those of Series __ Preferred Stock, if the holders of such stock shall be entitled to the receipt of dividends or of amounts distributable upon dissolution, liquidation, or winding up of the Corporation, as the case may be, in proportion to their respective dividend rates or liquidation prices, without preference or priority, one over the other, as between the holders of such stock and the holders of shares of Series __ Preferred Stock; and (c) junior to shares of Series __ Preferred Stock, either as to dividends or upon liquidation, if such class shall be Common Stock or if the holders of shares of Series __ Preferred Stock shall be entitled to receipt of dividends or of amounts distributable upon dissolution, liquidation, or winding up of the Corporation, as the case may be, in preference or priority to the holders of shares of such series or class or classes. 7. PRIORITY OF SERIES __ PREFERRED STOCK. The shares of Series __ Preferred Stock will rank on a parity, both as to payment of dividends and the distribution of assets upon liquidation, with the Corporation's [______________________________________]. The Series __ Preferred Stock will rank prior, both as to payment of dividends and the distribution of assets upon liquidation, to the Common Stock and the Corporation's [DESCRIBE ANY OTHER STOCK, AS APPLICABLE]. -17- 18 8. VOTING RIGHTS. The shares of Series __ Preferred Stock, except as hereinafter set forth or as otherwise from time to time required by law, shall not have voting rights. So long as any shares of Series ___ Preferred Stock remain outstanding, the consent of the holders of at least two-thirds of the shares of Series __ Preferred Stock outstanding at the time (voting separately as a class together with all other series of Preferred Stock (1) ranking on a parity with the Series __ Preferred Stock either as to dividends or the distribution of assets upon liquidation, dissolution or winding up and (2) upon which voting rights similar to those of Series __ Preferred Stock have been conferred and are exercisable) given in person or by proxy, either in writing or at any special or annual meeting called for the purpose, shall be necessary to permit, effect or validate any one or more of the following: (a) the authorization, creation or issuance, or any increase in the authorized or issued amount, of any class or series of stock ranking prior to the Series __ Preferred Stock with respect to payment of dividends or the distribution of assets on liquidation, dissolution or winding up, or (b) the amendment, alteration or repeal, whether by merger, consolidation or otherwise, of any of the provisions of the Certificate of Incorporation or of the resolutions set forth in a Certificate of Designations for the Series __ Preferred Stock [and the preferences and relative, participating, optional and other special rights and qualifications, limitations and restrictions thereof] which would materially and adversely affect any right, preference, privilege or voting power of the Series __ Preferred Stock or of the holders thereof; provided, however, that any increase in the amount of authorized Preferred Stock or the creation and issuance of another series of Preferred Stock, or any increase in the amount of authorized shares of any series of Preferred Stock, in each case ranking on a parity with or junior to the Series __ Preferred Stock with respect to the payment of dividends and the distribution of assets upon liquidation, dissolution or winding up, shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers. The foregoing voting provisions shall not apply if, at or prior to the time when the act with respect to which such vote would otherwise be required shall be effected, all outstanding shares of Series __ Preferred Stock shall have been redeemed or sufficient funds shall have been deposited in trust to effect such redemption. -18- 19 IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designations to be signed by __________________, its ___________________, and attested by ____________________, its _________________, whereby such ____________________ affirms, under penalties of perjury, that this Certificate of Designations is the act and deed of the Corporation and that the facts stated herein are true, this ____ day of ____________, ____. FIDELITY NATIONAL FINANCIAL, INC. By: ______________________________ Name: Title: Attest: By: _____________________________________ Name: Title: -19- EX-4.3 6 FORM OF DEPOSIT AGREEMENT 1 EXHIBIT 4.3 FORM OF DEPOSIT AGREEMENT WITH RESPECT TO THE DEPOSITARY SHARES ================================================================================ FIDELITY NATIONAL FINANCIAL, INC., [_______________________________], AS DEPOSITARY AND THE HOLDERS FROM TIME TO TIME OF THE DEPOSITARY RECEIPTS DESCRIBED HEREIN DEPOSIT AGREEMENT DATED AS OF ___________ ================================================================================ 2 TABLE OF CONTENTS
PAGE ---- ARTICLE I DEFINITIONS Certificate............................................................................... 1 Company................................................................................... 1 Deposit Agreement......................................................................... 1 Depositary................................................................................ 1 Depositary Shares......................................................................... 1 Depositary's Agent........................................................................ 1 Depositary's Office....................................................................... 2 Receipt................................................................................... 2 Record holder............................................................................. 2 Registrar................................................................................. 2 Stock..................................................................................... 2 ARTICLE II FORM OF RECEIPTS; DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY; TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS Section 2.01. Form and Transfer of Receipts.............................................. 2 Section 2.02. Deposit of Preferred Stock; Execution and Delivery of Receipts in Respect Thereof............................................................ 3 Section 2.03. Redemption of Preferred Stock.............................................. 4 Section 2.04. Registration of Transfer of Receipts....................................... 5 Section 2.05. Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Preferred Stock.............................................. 5 Section 2.06. Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts....................................................... 6 Section 2.07. Lost Receipts, etc......................................................... 6 Section 2.08. Cancellation and Destruction of Surrendered Receipts....................... 7 Section 2.09. Conversion of Preferred Stock into Common Stock............................ 7 ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY Section 3.01. Filing Proofs, Certificates and Other Information.......................... 7 Section 3.02. Payment of Taxes or Other Governmental Charges............................. 7 Section 3.03. Warranty as to Preferred Stock............................................. 8
-i- 3 TABLE OF CONTENTS (Continued)
PAGE ---- ARTICLE IV THE DEPOSITED SECURITIES; NOTICES Section 4.01. Cash Distributions......................................................... 8 Section 4.02. Distributions Other than Cash, Rights, Preferences or Privileges........... 8 Section 4.03. Subscription Rights, Preferences or Privileges............................. 9 Section 4.04. Notice of Dividends, etc.; Fixing of Record Date for Holders of Receipts................................................................... 10 Section 4.05. Voting Rights.............................................................. 10 Section 4.06. Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc..................................................... 10 Section 4.07. Inspection of Reports...................................................... 11 Section 4.08. Lists of Receipt Holders................................................... 11 ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY Section 5.01. Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar...................................................... 11 Section 5.02. Prevention of or Delay in Performance by the Depositary, the Depositary's Agents, the Registrar or the Company...................... 12 Section 5.03. Obligations of the Depositary, the Depositary's Agents, the Registrar and the Company.................................................. 12 Section 5.04. Resignation and Removal of the Depositary; Appointment of Successor Depositary....................................................... 13 Section 5.05. Corporate Notices and Reports.............................................. 14 Section 5.06. Indemnification by the Company............................................. 14 Section 5.07. Charges and Expenses....................................................... 14 ARTICLE VI AMENDMENT AND TERMINATION Section 6.01. Amendment.................................................................. 15 Section 6.02. Termination................................................................ 15 ARTICLE VII MISCELLANEOUS Section 7.01. Counterparts............................................................... 15 Section 7.02. Exclusive Benefit of Parties............................................... 15 Section 7.03. Invalidity of Provisions................................................... 15 Section 7.04. Notices.................................................................... 16 Section 7.05. Depositary's Agents........................................................ 16 Section 7.06. Holders of Receipts Are Parties............................................ 16 Section 7.07. Governing Law.............................................................. 16 Section 7.08. Inspection of Deposit Agreement............................................ 16 Section 7.09. Headings................................................................... 17
-ii- 4 DEPOSIT AGREEMENT dated as of _________, among FIDELITY NATIONAL FINANCIAL, INC., a Delaware corporation, [_____________________________________], and the holders from time to time of the Receipts described herein. WHEREAS, it is desired to provide, as hereinafter set forth in this Deposit Agreement, for the deposit of shares of [Cumulative] [Convertible] Preferred Stock, Series ___, par value [$.0001] per share (the "Preferred Stock"), of FIDELITY NATIONAL FINANCIAL, INC. with the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of Receipts evidencing Depositary Shares in respect of the Preferred Stock so deposited; and WHEREAS, the Receipts are to be substantially in the form of Exhibit A annexed hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit Agreement; NOW, THEREFORE, in consideration of the premises, the parties hereto agree as follows: ARTICLE I DEFINITIONS The following definitions shall for all purposes, unless otherwise indicated, apply to the respective terms used in this Deposit Agreement: "Certificate" shall mean the certificate of designations filed with the Secretary of State of Delaware establishing the Preferred Stock as a series of preferred stock of the Company. "Company" shall mean Fidelity National Financial, Inc., a Delaware corporation, and its successors. "Deposit Agreement" shall mean this Deposit Agreement, as amended or supplemented from time to time. 1 5 "Depositary" shall mean [__________________________], and any successor as Depositary hereunder. "Depositary Shares" shall mean Depositary Shares, each representing [one quarter] of a share of Preferred Stock and evidenced by a Receipt. "Depositary's Agent" shall mean an agent appointed by the Depositary pursuant to Section 7.05. "Depositary's Office" shall mean the office of the Depositary in [________________________], at which at any particular time its depositary receipt business shall be administered. "Receipt" shall mean one of the Depositary Receipts issued hereunder, whether in definitive or temporary form. "record holder" as applied to a Receipt shall mean the person in whose name a Receipt is registered on the books of the Depositary maintained for such purpose. "Registrar" shall mean any bank or trust company which shall be appointed to register ownership and transfers of Receipts as herein provided. ARTICLE II FORM OF RECEIPTS; DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY; TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS SECTION 201. FORM AND TRANSFER OF RECEIPTS. Definitive Receipts shall be engraved or printed or lithographed on steel-engraved borders and shall be substantially in the form set forth in Exhibit A annexed to this Deposit Agreement, with appropriate insertions, modifications and omissions, as hereinafter provided. Pending the preparation of definitive Receipts, the Depositary, upon the written order of the Company or any holder of Preferred Stock, as the case may be, delivered in compliance with Section 2.02, shall execute and deliver temporary Receipts which are printed, lithographed, typewritten, mimeographed or otherwise substantially of the tenor of the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the persons executing such Receipts may determine, as evidenced by their execution of such Receipts. If temporary Receipts are issued, the Company and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After the preparation of definitive Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the temporary Receipts at an office described in the last paragraph of Section 2.02, without charge to the holder. Upon surrender for cancellation of any one or more temporary Receipts, the Depositary shall execute and deliver in exchange therefor definitive Receipts representing the same number of Depositary Shares as represented by the surrendered temporary Receipt or Receipts. Such exchange shall be made at the Company's expense and without any charge therefor. Until so exchanged, the temporary Receipts shall in all respects be entitled to the same benefits under this Deposit Agreement, and with respect to the Preferred Stock, as definitive Receipts. 2 6 Receipts shall be executed by the Depositary by the manual signature of a duly authorized officer of the Depositary; provided, that such signature may be a facsimile if a Registrar for the Receipts (other than the Depositary) shall have been appointed and such Receipts are countersigned by manual signature of a duly authorized officer of the Registrar. No Receipt shall be entitled to any benefits under this Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed manually by a duly authorized officer of the Depositary or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by manual or facsimile signature of a duly authorized officer of the Depositary and countersigned manually by a duly authorized officer of such Registrar. The Depositary shall record on its books each Receipt so signed and delivered as hereinafter provided. Receipts shall be in denominations of any number of whole Depositary Shares up to but not in excess of __________ Depositary Shares for any particular Receipt. Receipts may be endorsed with or have incorporated in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement as may be required by the Depositary or required to comply with any applicable law or any regulation thereunder or with the rules and regulations of any securities exchange upon which the Preferred Stock, the Depositary Shares or the Receipts may be listed or to conform with any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject. Title to Depositary Shares evidenced by a Receipt which is properly endorsed, or accompanied by a properly executed instrument of transfer, shall be transferable by delivery with the same effect as in the case of a negotiable instrument; provided, however, that until transfer of a Receipt shall be registered on the books of the Depositary as provided in Section 2.04, the Depositary may, notwithstanding any notice to the contrary, treat the record holder thereof at such time as the absolute owner thereof for the purpose of determining the person entitled to distributions of dividends or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes. SECTION 2.02. DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY OF RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of this Deposit Agreement, the Company or any holder of Preferred Stock may from time to time deposit shares of the Preferred Stock under this Deposit Agreement by delivery to the Depositary of a certificate or certificates for the Preferred Stock to be deposited, properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer or endorsement, in form satisfactory to the Depositary, together with all such certifications as may be required by the Depositary in accordance with the provisions of this Deposit Agreement, and together with a written order of the Company or such holder, as the case may be, directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in such order a Receipt or Receipts for the number of Depositary Shares representing such deposited Preferred Stock. 3 7 Deposited Preferred Stock shall be held by the Depositary at the Depositary's Office or at such other place or places as the Depositary shall determine. Upon receipt by the Depositary of a certificate or certificates for Preferred Stock deposited in accordance with the provisions of this Section, together with the other documents required as above specified, and upon recordation of the Preferred Stock on the books of the Company in the name of the Depositary or its nominee, the Depositary, subject to the terms and conditions of this Deposit Agreement, shall execute and deliver, to or upon the order of the person or persons named in the written order delivered to the Depositary referred to in the first paragraph of this Section, a Receipt or Receipts for the number of Depositary Shares representing the Preferred Stock so deposited and registered in such name or names as may be requested by such person or persons. The Depositary shall execute and deliver such Receipt or Receipts at the Depositary's Office or such other offices, if any, as the Depositary may designate. Delivery at other offices shall be at the risk and expense of the person requesting such delivery. Other than in the case of splits, combinations or other reclassifications affecting the Preferred Stock, or in the case of dividends or other distributions of Preferred Stock, if any, there shall be deposited hereunder not more than _________ shares of Preferred Stock. SECTION 2.03. REDEMPTION OF PREFERRED STOCK. Whenever the Company shall elect to redeem shares of Preferred Stock in accordance with the provisions of the Certificate, if the Certificate provides for such redemption, it shall (unless otherwise agreed in writing with the Depositary) give the Depositary not less than 40 nor more than 70 days' notice of the date of such proposed redemption of Preferred Stock, which notice shall be accompanied by a certificate from the Company stating that such redemption of Preferred Stock is in accordance with the provisions of the Certificate. Such notice, if given more than 50 days prior to the redemption date, shall be in addition to the notice required to be given for redemption pursuant to the Certificate. On the date of such redemption, provided that the Company shall then have paid in full to the Depositary the redemption price of the Preferred Stock to be redeemed, plus any accrued and unpaid dividends thereon, the Depositary shall redeem the number of Depositary Shares representing such Preferred Stock. The Depositary shall mail notice of such redemption and the proposed simultaneous redemption of the number of Depositary Shares representing the Preferred Stock to be redeemed, first-class postage prepaid, not less than 30 and not more than 60 days prior to the date fixed for redemption of such Preferred Stock and Depositary Shares (the "Redemption Date"), to the record holders of the Receipts evidencing the Depositary Shares to be so redeemed, at the addresses of such holders as they appear on the records of the Depositary; but neither failure to mail any such notice to one or more such holders nor any defect in any notice to one or more such holders shall affect the sufficiency of the proceedings for redemption as to other holders. Each such notice shall state: (i) the Redemption Date; (ii) the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such 4 8 holder are to be redeemed, the number of such Depositary Shares held by such holder to be so redeemed; (iii) the redemption price; (iv) the place or places where Receipts evidencing Depositary Shares are to be surrendered for payment of the redemption price; and (v) that dividends in respect of the Preferred Stock represented by the Depositary Shares to be redeemed will cease to accumulate on such Redemption Date. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be selected on a pro rata basis as determined by the Company. Notice having been mailed by the Depositary as aforesaid, from and after the Redemption Date (unless the Company shall have failed to redeem the shares of Preferred Stock to be redeemed by it as set forth in the Company's notice provided for in the preceding paragraph) all dividends in respect of the shares of Preferred Stock so called for redemption shall cease to accumulate, the Depositary Shares being redeemed from such proceeds shall be deemed no longer to be outstanding, all rights of the holders of Receipts evidencing such Depositary Shares (except the right to receive the redemption price) shall, to the extent of such Depositary Shares cease and terminate and, upon surrender in accordance with such notice of the Receipts evidencing any such Depositary Shares (properly endorsed or assigned for transfer, if the Depositary shall so require), such Depositary Shares shall be redeemed by the Depositary at a redemption price per Depositary Share equal to [ %] of the redemption price per share paid in respect of the shares of Preferred Stock plus all money and other property, if any, represented by such Depositary Shares, including all amounts paid by the Company in respect of dividends which on the Redemption Date have accumulated on the shares of Preferred Stock to be so redeemed and have not theretofore been paid. If less than all the Depositary Shares are called for redemption, the Depositary will call for redemption Receipts evidencing the number of Depositary Shares to be redeemed on a pro rata basis. If less than all the Depositary Shares evidenced by a Receipt are called for redemption, the Depositary will deliver to the holder of such Receipt upon its surrender to the Depositary, together with the redemption payment, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for redemption. SECTION 2.04. REGISTRATION OF TRANSFER OF RECEIPTS. Subject to the terms and conditions of this Deposit Agreement, the Depositary shall register on its books from time to time transfers of Receipts upon any surrender thereof by the holder in person or by duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer. Thereupon the Depositary shall execute a new Receipt or Receipts evidencing the same aggregate number of Depositary Shares as those evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or Receipts to or upon the order of the person entitled thereto. SECTION 2.05. SPLIT-UPS AND COMBINATIONS OF RECEIPTS; SURRENDER OF RECEIPTS AND WITHDRAWAL OF PREFERRED STOCK. Upon surrender of a Receipt or Receipts at the Depositary's Office or at such other offices as it may designate for the purpose of effecting a split-up or combination of such Receipt or Receipts, and subject to the terms and conditions of this Deposit Agreement, the Depositary shall execute and deliver a new Receipt or Receipts in the authorized denomination or denominations requested, evidencing the aggregate number of Depositary Shares evidenced by the Receipt or Receipts surrendered. 5 9 Any holder of a Receipt or Receipts representing any number of whole shares of Preferred Stock may withdraw the Preferred Stock and all money and other property, if any, represented thereby by surrendering such Receipt or Receipts at the Depositary's Office or at such other offices as the Depositary may designate for such withdrawals. Thereafter, without unreasonable delay, the Depositary shall deliver to such holder, or to the person or persons designated by such holder as hereinafter provided, the number of whole shares of Preferred Stock and all money and other property, if any, represented by the Receipt or Receipts so surrendered for withdrawal, but holders of such whole shares of Preferred Stock will not thereafter be entitled to deposit such Preferred Stock hereunder or to receive Depositary Shares therefor. If a Receipt delivered by the holder to the Depositary in connection with such withdrawal shall evidence a number of Depositary Shares in excess of the number of Depositary Shares representing the number of whole shares of Preferred Stock to be so withdrawn, the Depositary shall at the same time, in addition to such number of whole shares of Preferred Stock and such money and other property, if any, to be so withdrawn, deliver to such holder, or (subject to Section 2.03) upon his order, a new Receipt evidencing such excess number of Depositary Shares. Delivery of the Preferred Stock and money and other property being withdrawn may be made by the delivery of such certificates, documents of title and other instruments as the Depositary may deem appropriate. If the Preferred Stock and the money and other property being withdrawn are to be delivered to a person or persons other than the record holder of the Receipt or Receipts being surrendered for withdrawal of Preferred Stock, such holder shall execute and deliver to the Depositary a written order so directing the Depositary and the Depositary may require that the Receipt or Receipts surrendered by such holder for withdrawal of such shares of Preferred Stock be properly endorsed in blank or accompanied by a properly executed instrument of transfer in blank. Delivery of the Preferred Stock and the money and other property, if any, represented by Receipts surrendered for withdrawal shall be made by the Depositary at the Depositary's Office, except that, at the request, risk and expense of the holder surrendering such Receipt or Receipts and for the account of the holder thereof, such delivery may be made at such other place as may be designated by such holder. SECTION 2.06. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND EXCHANGE OF RECEIPTS. As a condition precedent to the execution and delivery, registration of transfer, split-up, combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary's Agents or the Company may require payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall have made such payment, the reimbursement to it) of any charges or expenses payable by the holder of a Receipt pursuant to Section 5.07, may require the production of evidence satisfactory to it as to the identity and genuineness of any signature and may also require compliance with such regulations, if any, as the Depositary or the Company may establish consistent with the provisions of this Deposit Agreement. 6 10 The deposit of Preferred Stock may be refused, the delivery of Receipts against Preferred Stock may be suspended, the registration of transfer of Receipts may be refused and the registration of transfer, surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of shareholders of the Company is closed, or (ii) if any such action is deemed necessary or advisable by the Depositary, any of the Depositary's Agents or the Company at any time or from time to time because of any requirement of law or of any government or governmental body or commission or under any provision of this Deposit Agreement. SECTION 2.07. LOST RECEIPTS, ETC. In case any Receipt shall be mutilated, destroyed, lost or stolen, the Depositary in its discretion may execute and deliver a Receipt of like form and tenor in exchange and substitution for such mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or stolen Receipt, upon (i) the filing by the holder thereof with the Depositary of evidence satisfactory to the Depositary of such destruction or loss or theft of such Receipt, of the authenticity thereof and of his or her ownership thereof, and (ii) the furnishing of the Depositary with an indemnity bond satisfactory to it. SECTION 2.08. CANCELLATION AND DESTRUCTION OF SURRENDERED RECEIPTS. All Receipts surrendered to the Depositary or any Depositary's Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is authorized to destroy all Receipts so cancelled. [SECTION 2.09. CONVERSION OF PREFERRED STOCK INTO COMMON STOCK. It is understood and agreed that the Depositary Shares are not convertible into the Common Stock, par value [$0.0001] per share, of the Company (the "Common Stock") or any other securities or property of the Company. Nevertheless, as a matter of convenience, the Company hereby agrees to accept (or to cause its conversion agent to accept) the delivery of Receipts for the purpose of effecting conversions of the Preferred Stock utilizing the same procedures as those provided for delivery of Preferred Stock certificates to effect such conversions in accordance with the terms and conditions of the Certificate; provided, however, that only whole Depositary Shares may be so submitted for conversion. If fewer than all of the Depositary Shares evidenced by a Receipt are to be converted, the Company shall instruct the Depositary to issue a new Receipt or Receipts for the Depositary Shares not to be converted. For this purpose, a holder of a Receipt or Receipts may surrender such Receipt or Receipts to the Company at the Depositary's Office or at such other office as the Company may from time to time designate for such purpose, together with a duly completed and executed Notice of Conversion in the form included in the Receipt. In all cases, the foregoing shall be conditioned upon compliance in full by the holder of such Receipt or Receipts with the terms and conditions of the Certificate and of this Deposit Agreement. The Company shall instruct the Depositary to cancel each Receipt surrendered for such conversion and to deliver to the Company any certificates for related Preferred Stock so converted, and the Company will cancel such Preferred Stock certificates.] 7 11 ARTICLE III CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION. Any holder of a Receipt may be required from time to time to file such proof of residence, or other matters or other information, to execute such certificates and to make such representations and warranties as the Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company may withhold the delivery, or delay the registration of transfer, redemption or exchange, of any Receipt or the withdrawal of the Preferred Stock represented by the Depositary Shares evidenced by any Receipt or the distribution of any dividend or other distribution or the sale of any rights or of the proceeds thereof until such proof or other information is filed or such certificates are executed or such representations and warranties are made. SECTION 3.02. PAYMENT OF TAXES OR OTHER GOVERNMENTAL CHARGES. Holders of Receipts shall be obligated to make payments to the Depositary of certain charges and expenses, as provided in Section 5.07. Registration of transfer of any Receipt or any withdrawal of Preferred Stock and all money or other property, if any, represented by the Depositary Shares evidenced by such Receipt may be refused until any such payment due is made, and any dividends, interest payments or other distributions may be withheld or any part of or all the Preferred Stock or other property represented by the Depositary Shares evidenced by such Receipt and not theretofore sold may be sold for the account of the holder thereof (after attempting by reasonable means to notify such holder prior to such sale), and such dividends, interest payments or other distributions or the proceeds of any such sale may be applied to any payment of such charges or expenses, the holder of such Receipt remaining liable for any deficiency. SECTION 3.03. WARRANTY AS TO PREFERRED STOCK. The Company hereby represents and warrants that the Preferred Stock, when issued, will be validly issued, fully paid and nonassessable. Such representation and warranty shall survive the deposit of the Preferred Stock and the issuance of Receipts. ARTICLE IV THE DEPOSITED SECURITIES; NOTICES SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall receive any cash dividend or other cash distribution on Preferred Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of such dividend or distribution as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders; provided, however, that in case the Company or the Depositary shall be required to withhold and shall withhold from any cash dividend or other cash distribution in respect of the Preferred Stock an amount on account of taxes, the amount made available for distribution or distributed in respect of Depositary Shares shall be reduced accordingly. The Depositary shall 8 12 distribute or make available for distribution, as the case may be, only such amount, however, as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, and any balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated as part of the next sum received by the Depositary for distribution to record holders of Receipts then outstanding. SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH, RIGHTS, PREFERENCES OR PRIVILEGES. Whenever the Depositary shall receive any distribution other than cash, rights, preferences or privileges upon Preferred Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.04 such amounts of the securities or property received by it as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the Receipts held by such holders, in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution. If in the opinion of the Depositary such distribution cannot be made proportionately among such record holders, or if for any other reason (including any requirement that the Company or the Depositary withhold an amount on account of taxes) the Depositary deems, after consultation with the Company, such distribution not to be feasible, the Depositary may, with the approval of the Company, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale (at public or private sale) of the securities or property thus received, or any part thereof, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, subject to Sections 3.01 and 3.02, be distributed or made available for distribution, as the case may be, by the Depositary to record holders of Receipts as provided by Section 4.01 in the case of a distribution received in cash. The Company shall not make any distribution of such securities unless the Company shall have provided an opinion of counsel stating that such securities have been registered under the Securities Act of 1933 or do not need to be registered. SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If the Company shall at any time offer or cause to be offered to the persons in whose names Preferred Stock is recorded on the books of the Company any rights, preferences or privileges to subscribe for or to purchase any securities or any rights, preferences or privileges of any other nature, such rights, preferences or privileges shall in each such instance be made available by the Depositary to the record holders of Receipts in such manner as the Depositary may determine, either by the issue to such record holders of warrants representing such rights, preferences or privileges or by such other method as may be approved by the Depositary in its discretion with the approval of the Company; provided, however, that (i) if at the time of issue or offer of any such rights, preferences or privileges the Depositary determines that it is not lawful or (after consultation with the Company) not feasible to make such rights, preferences or privileges available to holders of Receipts by the issue of warrants or otherwise, or (ii) if and to the extent so instructed by holders of Receipts who do not desire to exercise such rights, preferences or privileges, then the Depositary, in its discretion (with the approval of the Company, in any case where the Depositary has determined that it is not feasible to make such rights, preferences or privileges available), may, if applicable laws or the terms of such rights, preferences or privileges permit such transfer, sell such rights, preferences or privileges at public or private sale, at such place or places and upon such terms as it may deem proper. The net proceeds of any such sale shall, 9 13 subject to Sections 3.01 and 3.02, be distributed by the Depositary to the record holders of Receipts entitled thereto as provided by Section 4.01 in the case of a distribution received in cash. The Company shall not make any distribution of any such rights, preferences or privileges unless the Company shall have provided an opinion of counsel stating that such rights, preferences or privileges have been registered under the Securities Act of 1933 or do not need to be registered. If registration under the Securities Act of 1933 of the securities to which any rights, preferences or privileges relate is required in order for holders of Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, the Company agrees with the Depositary that it will file promptly a registration statement pursuant to such Act with respect to such rights, preferences or privileges and securities and use its best efforts and take all steps available to it to cause such registration statement to become effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. In no event shall the Depositary make available to the holders of Receipts any right, preference or privilege to subscribe for or to purchase any securities unless and until such a registration statement shall have become effective, or unless the offering and sale of such securities to such holders are exempt from registration under the provisions of such Act. If any other action under the laws of any jurisdiction or any governmental or administrative authorization, consent or permit is required in order for such rights, preferences or privileges to be made available to holders of Receipts, the Company agrees with the Depositary that the Company will use its best efforts to take such action or obtain such authorization, consent or permit sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or privileges. SECTION 4.04. NOTICE OF DIVIDENDS, ETC.; FIXING OF RECORD DATE FOR HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution shall become payable or any distribution other than cash shall be made, or if rights, preferences or privileges shall at any time be offered, with respect to Preferred Stock, or whenever the Depositary shall receive notice of any meeting at which holders of Preferred Stock are entitled to vote or of which holders of Preferred Stock are entitled to notice, or whenever the Depositary and the Company shall decide it is appropriate, the Depositary shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to the Preferred Stock) for the determination of the holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges or the net proceeds of the sale thereof, or to give instructions for the exercise of voting rights at any such meeting, or who shall be entitled to notice of such meeting or for any other appropriate reasons. SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any meeting at which the holders of Preferred Stock are entitled to vote, the Depositary shall, as soon as practicable thereafter, mail to the record holders of Receipts a notice which shall contain (i) such information as is contained in such notice of meeting, and (ii) a statement that the holders may, subject to any applicable restrictions, instruct the Depositary as to the exercise of the voting 10 14 rights pertaining to the amount of Preferred Stock represented by their respective Depositary Shares (including an express indication that instructions may be given to the Depositary to give a discretionary proxy to a person designated by the Company) and a brief statement as to the manner in which such instructions may be given. Upon the written request of the holders of Receipts on the relevant record date, the Depositary shall endeavor insofar as practicable to vote or cause to be voted, in accordance with the instructions set forth in such requests, the maximum number of whole shares of Preferred Stock represented by the Depositary Shares evidenced by all Receipts as to which any particular voting instructions are received. The Company hereby agrees to take all action which may be deemed necessary by the Depositary in order to enable the Depositary to vote such Preferred Stock or cause such Preferred Stock to be voted. In the absence of specific instructions from the holder of a Receipt, the Depositary will abstain from voting (but, at its discretion, not from appearing at any meeting with respect to such Preferred Stock unless directed to the contrary by the holders of all the Receipts) to the extent of the Preferred Stock represented by the Depositary Shares evidenced by such Receipt. SECTION 4.06. CHANGES AFFECTING DEPOSITED SECURITIES AND RECLASSIFICATIONS, RECAPITALIZATIONS, ETC. Upon any change in par or stated value, split-up, combination or any other reclassification of the Preferred Stock, or upon any recapitalization, reorganization, merger, amalgamation or consolidation affecting the Company or to which it is a party, the Depositary may in its discretion with the approval of, and shall upon the instructions of, the Company, and (in either case) in such manner as the Depositary may deem equitable, (i) make such adjustments as are certified by the Company in (x) the fraction of an interest represented by one Depositary Share in one share of Preferred Stock, and (y) the ratio of the redemption price per Depositary Share to the redemption price of a share of Preferred Stock, in each case as may be necessary fully to reflect the effects of such changes in par or stated value, split-up, combination or other reclassification of Preferred Stock, or of such recapitalization, reorganization, merger, amalgamation or consolidation, and (ii) treat any securities which shall be received by the Depositary in exchange for or upon conversion of or in respect of the Preferred Stock as new deposited securities so received in exchange for or upon conversion or in respect of such Preferred Stock. In any such case the Depositary may in its discretion, with the approval of the Company, execute and deliver additional Receipts, or may call for the surrender of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited securities. Anything to the contrary herein notwithstanding, holders of Receipts shall have the right from and after the effective date of any such change in par or stated value, split-up, combination or other reclassification of the Preferred Stock or any such recapitalization, reorganization, merger, amalgamation or consolidation to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the Preferred Stock represented thereby only into or for, as the case may be, the kind and amount of shares of stock and other securities and property and cash into which the Preferred Stock represented by such Receipts might have been converted or for which such Preferred Stock might have been exchanged or surrendered immediately prior to the effective date of such transaction. 11 15 SECTION 4.07. INSPECTION OF REPORTS. The Depositary shall make available for inspection by holders of Receipts at the Depositary's Office, and at such other places as it may from time to time deem advisable, any reports and communications received from the Company which are received by the Depositary as the holder of Preferred Stock. SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request from time to time by the Company, the Depositary shall furnish to it a list, as of a recent date, of the names, addresses and holdings of Depositary Shares of all persons in whose names Receipts are registered on the books of the Depositary. ARTICLE V THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS BY THE DEPOSITARY; REGISTRAR. Upon execution of this Deposit Agreement, the Depositary shall maintain at the Depositary's Office facilities for the execution and delivery, registration and registration of transfer, surrender and exchange of Receipts, and at the offices of the Depositary's Agents, if any, facilities for the delivery, registration of transfer, surrender and exchange of Receipts, all in accordance with the provisions of this Deposit Agreement. The Depositary shall keep books at the Depositary's Office for the registration and registration of transfer of Receipts, which books at all reasonable times shall be open for inspection by the record holders of Receipts; provided, that any such holder requesting to exercise such right shall certify to the Depositary that such inspection shall be for a proper purpose reasonably related to such person's interest as an owner of Depositary Shares evidenced by the Receipts. The Depositary may close such books, at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder. The Depositary may, with the approval of the Company, appoint a Registrar for registration of the Receipts or the Depositary Shares evidenced thereby. If the Receipts or the Depositary Shares evidenced thereby or the Preferred Stock represented by such Depositary Shares shall be listed on the New York Stock Exchange, the Depositary will appoint a Registrar (acceptable to the Company) for registration of such Receipts or Depositary Shares in accordance with any requirements of such Exchange. Such Registrar (which may be the Depositary if so permitted by the requirements of such Exchange) may be removed and a substituted registrar appointed by the Depositary upon the request or with the approval of the Company. If the Receipts, such Depositary Shares or such Preferred Stock are listed on one or more other stock exchanges, the Depositary will, at the request of the Company, arrange such facilities for the delivery, registration, registration of transfer, surrender and exchange of such Receipts, such Depositary Shares or such Preferred Stock as may be required by law or applicable stock exchange regulation. 12 16 SECTION 5.02. PREVENTION OF OR DELAY IN PERFORMANCE BY THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR OR THE COMPANY. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall incur any liability to any holder of any Receipt if by reason of any provision of any present or future law, or regulation thereunder, of the United States of America or of any other governmental authority or, in the case of the Depositary, the Depositary's Agent or the Registrar, by reason of any provision, present or future, of the Company's Articles of Incorporation (including the Certificate) or by reason of any act of God or war or other circumstance beyond the control of the relevant party, the Depositary, the Depositary's Agent, the Registrar or the Company shall be prevented or forbidden from, or subjected to any penalty on account of, doing or performing any act or thing which the terms of this Deposit Agreement provide shall be done or performed; nor shall the Depositary, any Depositary's Agent, any Registrar or the Company incur any liability to any holder of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which the terms of this Deposit Agreement provide shall or may be done or performed, or (ii) by reason of any exercise of, or failure to exercise, any discretion provided for in this Deposit Agreement except, in case of any such exercise or failure to exercise discretion not caused as aforesaid, if caused by the negligence or willful misconduct of the party charged with such exercise or failure to exercise. SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, THE DEPOSITARY'S AGENTS, THE REGISTRAR AND THE COMPANY . Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders of Receipts other than for its negligence or willful misconduct. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be under any obligation to appear in, prosecute or defend any action, suit or other proceeding in respect of the Preferred Stock, the Depositary Shares or the Receipts which in its opinion may involve it in expense or liability unless indemnity satisfactory to it against all expense and liability be furnished as often as may be required. Neither the Depositary nor any Depositary's Agent nor any Registrar nor the Company shall be liable for any action or any failure to act by it in reliance upon the written advice of legal counsel or accountants, or information from any person presenting Preferred Stock for deposit, any holder of a Receipt or any other person believed by it in good faith to be competent to give such information. The Depositary, any Depositary's Agent, any Registrar and the Company may each rely and shall each be protected in acting upon any written notice, request, direction or other document believed by it to be genuine and to have been signed or presented by the proper party or parties. The Depositary shall not be responsible for any failure to carry out any instruction to vote any of the shares of Preferred Stock or for the manner or effect of any such vote made, as long as any such action or non-action is in good faith. The Depositary undertakes, and any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar. The Depositary will indemnify the 13 17 Company against any liability which may arise out of acts performed or omitted by the Depositary or its agents due to its or their negligence or bad faith. The Depositary, the Depositary's Agents and any Registrar may own and deal in any class of securities of the Company and its affiliates and Receipts. The Depositary may also act as transfer agent or registrar of any of the securities of the Company and its affiliates. SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY; APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as Depositary hereunder by notice of its election so to do delivered to the Company, such resignation to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided. The Depositary may at any time be removed by the Company by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor Depositary and its acceptance of such appointment as hereinafter provided. In case at any time the Depositary acting hereunder shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case may be, appoint a successor Depositary, which shall be a bank or trust company having its principal office in the United States of America and having a combined capital and surplus of at least $50,000,000. If no successor Depositary shall have been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depositary may petition any court of competent jurisdiction for the appointment of a successor Depositary. Every successor Depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment hereunder, and thereupon such successor Depositary, without any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written request of the Company, shall execute and deliver an instrument transferring to such successor all rights and powers of such predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Preferred Stock and any moneys or property held hereunder to such successor, and shall deliver to such successor a list of the record holders of all outstanding Receipts. Any successor Depositary shall promptly mail notice of its appointment to the record holders of Receipts. Any corporation into or with which the Depositary may be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any further act, and notice thereof shall not be required hereunder. Such successor Depositary may authenticate the Receipts in the name of the predecessor Depositary or in the name of the successor Depositary. SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees that it will transmit to the record holders of Receipts, in each case at the addresses furnished to it pursuant to Section 4.08, all notices and reports (including without limitation financial statements) required 14 18 by law, by the rules of any national securities exchange upon which the Preferred Stock, the Depositary Shares or the Receipts are listed or by the Company's Articles of Incorporation (including the Certificate) to be furnished by the Company to holders of Preferred Stock. Such transmission will be at the Company's expense. SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company shall indemnify the Depositary, any Depositary's Agent and any Registrar against, and hold each of them harmless from, any loss, liability or expense (including the costs and expenses of defending itself) which may arise out of (i) acts performed or omitted in connection with this Deposit Agreement and the Receipts (a) by the Depositary, any Registrar or any of their respective agents (including any Depositary's Agent), except for any liability arising out of negligence, bad faith or willful misconduct on the respective parts of any such person or persons, or (b) by the Company or any of its agents, or (ii) the offer, sale or registration of the Receipts or the Preferred Stock pursuant to the provisions hereof. The obligations of the Company set forth in this Section 5.06 shall survive any succession of any Depositary, Registrar or Depositary's Agent. SECTION 5.07. CHARGES AND EXPENSES. The Company shall pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. The Company shall pay all agreed upon charges of the Depositary in connection with the initial deposit of the Preferred Stock and the initial issuance of the Depositary Shares, redemption of the Preferred Stock at the option of the Company and all withdrawals of shares of the Preferred Stock by owners of Depositary Shares. All other transfer and other taxes and governmental charges shall be at the expense of holders of Depositary Shares. If, at the request of a holder of Receipts, the Depositary incurs charges or expenses for which it is not otherwise liable hereunder, such holder will be liable for such charges and expenses. All other charges and expenses of the Depositary and any Depositary's Agent hereunder and of any Registrar (including, in each case, fees and expenses of counsel) incident to the performance of their respective obligations hereunder will be paid upon consultation and agreement between the Depositary and the Company as to the amount and nature of such charges and expenses. The Depositary shall present its statement for charges and expenses to the Company once each month or at such other intervals as the Company and the Depositary may agree. ARTICLE VI AMENDMENT AND TERMINATION SECTION 6.01. AMENDMENT. The form of the Receipts and any provisions of this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary in any respect which they may deem necessary or desirable; provided, however, that no such amendment (other than any change in the fees of any Depositary, Registrar or transfer agent, which shall go into effect not sooner than three months after notice thereof to the holders of the Receipts) which shall materially and adversely alter the rights of the holders of Receipts shall be effective unless such amendment shall have been approved by the holders of at least a majority of the Depositary Shares then outstanding. Every holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to hold such Receipt, to consent and agree to such amendment and to be bound by this Deposit Agreement as amended thereby. 15 19 SECTION 6.02. TERMINATION. This Agreement may be terminated by the Company or the Depositary only after (i) all outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03, or (ii) there shall have been made a final distribution in respect of the Preferred Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have been distributed to the holders of Depositary Shares pursuant to Section 4.01 or 4.02, as applicable. Upon the termination of this Deposit Agreement, the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary, any Depositary's Agent and any Registrar under Sections 5.06 and 5.07. ARTICLE VII MISCELLANEOUS SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be executed in any number of counterparts, and by each of the parties hereto on separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed an original, but all such counterparts taken together shall constitute one and the same instrument. SECTION 7.02. EXCLUSIVE BENEFIT OF PARTIES. This Deposit Agreement is for the exclusive benefit of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy or claim to any other person whatsoever. SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more of the provisions contained in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby. SECTION 7.04. NOTICES. Any and all notices to be given to the Company hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram or telex confirmed by letter, addressed to the Company at 17911 Von Karman Avenue, Suite 300, Irvine, California 92614, to the attention of the Senior Vice President and General Counsel, or at any other address of which the Company shall have notified the Depositary in writing. Any and all notices to be given to the Depositary hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram or telex confirmed by letter, addressed to the Depositary at the Depositary's Office, at [___________________________________], or at any other address of which the Depositary shall have notified the Company in writing. 16 20 Any and all notices to be given to any record holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail or by telegram or telex confirmed by letter, addressed to such record holder at the address of such record holder as it appears on the books of the Depositary, or if such holder shall have filed with the Depositary a written request that notices intended for such holder be mailed to some other address, at the address designated in such request. Delivery of a notice sent by mail or by telegram or telex shall be deemed to be effected at the time when a duly addressed letter containing the same (or a confirmation thereof in the case of a telegram or telex message) is deposited, postage prepaid, in a post office letter box. The Depositary or the Company may, however, act upon any telegram or telex message received by it from the other or from any holder of a Receipt, notwithstanding that such telegram or telex message shall not subsequently be confirmed by letter or as aforesaid. SECTION 7.05. DEPOSITARY'S AGENTS. The Depositary may from time to time appoint Depositary's Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary's Agents and vary or terminate the appointment of such Depositary's Agents. The Depositary will notify the Company of any such action. SECTION 7.06. HOLDERS OF RECEIPTS ARE PARTIES. The holders of Receipts from time to time shall be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of delivery thereof. SECTION 7.07. GOVERNING LAW. This Deposit Agreement and the Receipts and all rights hereunder and thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws of the State of _____________. SECTION 7.08. INSPECTION OF DEPOSIT AGREEMENT. Copies of this Deposit Agreement shall be filed with the Depositary and the Depositary's Agents and shall be open to inspection during business hours at the Depositary's Office and the respective offices of the Depositary's Agents, if any, by any holder of a Receipt. SECTION 7.09. HEADINGS. The headings of articles and sections in this Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded as a part of this Deposit Agreement or the Receipts or have any bearing upon the meaning or interpretation of any provision contained herein or in the Receipts. [Remainder of page intentionally left blank] 17 21 IN WITNESS WHEREOF, the Company and the Depositary have duly executed this Agreement as of the day and year first above set forth, and all holders of Receipts shall become parties hereto by and upon acceptance by them of delivery of Receipts issued in accordance with the terms hereof. FIDELITY NATIONAL FINANCIAL, INC. By _________________________________ Name:____________________________ Title:___________________________ Attested by _____________________________________ Name:________________________________ [_________________________________] as Depositary By _________________________________ Name:____________________________ Title:___________________________ Attested by _____________________________________ Name:________________________________ S-1 22 EXHIBIT A NUMBER DEPOSITARY SHARES DR CERTIFICATE FOR NOT MORE THAN _______ DEPOSITARY SHARES DEPOSITARY RECEIPT FOR DEPOSITARY SHARES, REPRESENTING [CUMULATIVE] [CONVERTIBLE] PREFERRED STOCK, SERIES __, OF FIDELITY NATIONAL FINANCIAL, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE CUSIP SEE REVERSE FOR CERTAIN DEFINITIONS ____________________________________, AS DEPOSITARY (THE "DEPOSITARY"), HEREBY CERTIFIES THAT Is the registered owner of ___________________________________ DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing [one quarter (1/4)] of one share of [Cumulative] [Convertible] Preferred Stock, Series ___, par value [$.0001] per share, of Fidelity National Financial, Inc., a Delaware corporation (the "Corporation"), on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement dated as of ______________, _____, (the "Deposit Agreement") between the Corporation and the Depositary. By accepting this Depositary Receipt the holder hereof becomes a party to and agrees to be bound by all the terms and conditions of the Deposit Agreement. This Depositary Receipt shall not be valid or obligatory for any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual signature of a duly authorized officer and shall have been countersigned manually by a Registrar or by the Depositary as Registrar in respect of the Depositary Receipts by the manual signature of a duly authorized officer thereof. Dated: __________________________ COUNTERSIGNED AND REGISTERED: _________________________________ _________________________________ DEPOSITARY AND REGISTRAR By:______________________________ Name:____________________________ Title:___________________________ Authorized Officer [SEAL] A-1 23 FIDELITY NATIONAL FINANCIAL, INC. THE CORPORATION WILL FURNISH TO ANY SHAREHOLDER UPON REQUEST AND WITHOUT CHARGE, A FULL STATEMENT OF THE DESIGNATIONS, PREFERENCES, LIMITATIONS, AND RELATIVE RIGHTS OF THE SHARES OF EACH CLASS OR SERIES AUTHORIZED TO BE ISSUED, SO FAR AS THEY HAVE BEEN DETERMINED, AND THE AUTHORITY OF THE BOARD OF DIRECTORS TO DETERMINE THE RELATIVE RIGHTS AND PREFERENCES OF SUBSEQUENT CLASSES OR SERIES. A-2 24 The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right of survivorship and not as tenants in common UNIF GIFT MIN ACT - ________ Custodian _________ under the Uniform Gifts to (Cust) (Minor) Minors Act_______ (State) Additional abbreviations may also be used though not in the above list. For value received, _______________ hereby sell(s), assign(s) and transfer(s) unto ___________________________________ (Please insert social security or other identifying number of Assignee) ________________________________________________________________________________ (Please print or typewrite Name and address including postal zip code of Assignee) __________ Depositary Shares represented by the within Receipt and all rights thereunder, and do hereby irrevocably constitute and appoint _____________ Attorney to transfer said Depositary Shares on the books of the within-named Depositary with full power of substitution in the premises. Dated: _______________ ________________________ NOTICE. The signature(s) to this assignment must correspond with the name(s) as written upon the face of this instrument in every particular, without alteration or enlargement or any change whatever. A-3 EX-5.1 7 OPINION OF STRADLING, YOCCA CARLSON & RAUTH 1 EXHIBIT 5.1 [STRADLING YOCCA CARLSON & RAUTH LETTERHEAD] December 14, 1998 Fidelity National Financial, Inc. 17911 Von Karman Avenue, Suite 300 Irvine, California 92614 Re: Registration Statement on Form S-3 (File No. 333-65837) ------------------------------------------------------- Ladies and Gentlemen: We have acted as special counsel to Fidelity National Financial, Inc., a Delaware corporation ("Fidelity"), in connection with the preparation of the Registration Statement on Form S-3 (File No. 333-65837) filed by Fidelity with the Securities and Exchange Commission (the "Commission") on October 16, 1998 under the Securities Act of 1933, as amended (the "Securities Act"), and as amended by Amendment No. 1 to such Registration Statement filed with the Commission on December 14, 1998 (as amended, the "Registration Statement"). The Registration Statement relates to the issuance and sale from time to time, pursuant to Rule 415 of the General Rules and Regulations of the Commission promulgated under the Securities Act, of the following securities of Fidelity with an aggregate initial public offering price of up to $150,000,000: (i) debt securities, in one or more series (the "Debt Securities"), which may be issued under an Indenture (the "Indenture") entered into or proposed to be entered into between Fidelity and a trustee (the "Trustee") that has been or will be appointed prior to the issuance of Debt Securities; (ii) shares of Fidelity preferred stock, par value $.0001 per share (the "Preferred Stock"), in one or more series, which may also be issued in the form of depositary shares (the "Depositary Shares") evidenced by depositary receipts (the "Receipts"); and (iii) shares of Fidelity common stock, par value $.0001 per share (the "Common Stock" and, collectively with the Debt Securities, the Preferred Stock, the Depositary Shares and the Common Stock, the "Offered Securities"). This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act. 2 Fidelity National Financial, Inc. December 14, 1998 Page Two In connection with the preparation of this opinion, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate and other records and documents as we considered appropriate including, without limitation: (i) the Registration Statement; (ii) the Indenture or form thereof filed as an exhibit to the Registration Statement; (iii) the form of deposit agreement (the "Deposit Agreement") filed as an exhibit to the Registration Statement that may be entered into among Fidelity, a depositary to be appointed by Fidelity (the "Depositary") and the holders from time to time of Receipts issued thereunder in connection with any offering of Depositary Shares, including the form of Receipt evidencing the Depositary Shares included as Annex A to the Deposit Agreement; (iv) a specimen certificate representing the Common Stock; (v) the Restated Certificate of Incorporation of Fidelity, as presently in effect; (vi) the Amended Bylaws of Fidelity, as presently in effect; and (vii) resolutions of the Board of Directors of Fidelity (the "Board Resolutions") relating to the preparation and filing of the Registration Statement. In addition, we have examined such other documents and considered such questions of law as we have deemed necessary or appropriate. As to questions of fact material to our opinions, we have relied upon certificates of public officials, certificates of officers or other representatives of Fidelity and others, and such other certificates or representations as we considered appropriate. We have assumed the authenticity of all documents submitted to us as originals, the conformity with originals of all documents submitted to us as copies and the genuineness of all signatures. We have also assumed that, with respect to all parties to agreements or instruments relevant hereto other than Fidelity, such parties had or will have the requisite power and authority to execute and deliver and perform such agreements or instruments, that such agreements or instruments have been duly authorized by all requisite action, corporate or other, and executed and delivered by such parties and that such agreements or instruments are the valid, binding and enforceable obligations of such parties. As to any facts material to the opinions expressed herein which were not independently established or verified, we have relied upon oral or written statements and representations of officers and other representatives of Fidelity and others. Based upon the foregoing, and subject to the assumptions, exceptions, qualifications and limitations set forth herein, we are of the opinion that: 1. With respect to any series of Debt Securities (the "Offered Debt Securities"), when (i) the Board of Directors of Fidelity has taken all necessary corporate action to authorize the offer, 3 Fidelity National Financial, Inc. December 14, 1998 Page Three sale and issuance of, and to fix and determine the terms of, the Offered Debt Securities; (ii) the terms of the Offered Debt Securities and of their issuance and sale have been duly established in conformity with the Indenture; (iii) the Indenture has been duly executed and delivered; and (iv) the Offered Debt Securities have been duly executed and authenticated in accordance with the terms of the Indenture and duly delivered to the purchasers thereof upon payment of the agreed-upon consideration therefor, the issuance and sale of the Offered Debt Securities will have been duly authorized by all necessary corporate action on the part of Fidelity, and the Offered Debt Securities will constitute valid and binding obligations of Fidelity enforceable against Fidelity in accordance with their terms, except as the enforceability thereof may be subject to or limited by (1) bankruptcy, insolvency, reorganization, arrangement, moratorium or similar laws relating to creditors' rights generally, and (2) general equitable principles, regardless of whether the issue is enforceability is considered in a proceeding in equity or at law. 2. With respect to the shares of any series of Preferred Stock (the "Offered Preferred Stock"), when (i) the Board of Directors has taken all necessary corporate action to authorize the offer, sale and issuance of, and to fix and determine the terms of, the Offered Preferred Stock, including the adoption of a Certificate of Designations for such Preferred Stock in the form required by applicable law; (ii) such Certificate of Designations has been duly filed with the Secretary of State of the State of Delaware; (iii) certificates representing the shares of the Offered Preferred Stock have been manually signed by an authorized officer of Fidelity or of the transfer agent and registrar for the Preferred Stock and registered by Fidelity or such transfer agent and registrar, and delivered to the purchasers thereof; and (iv) Fidelity receives consideration per share of the Offered Preferred Stock (A) in such amount (not less than the par value per share) as may be determined by the Board of Directors in the form of cash, services rendered, personal property, real property, leases of real property, or a combination thereof or (B) in an amount not less than the amount of consideration determined to be capital, in any of the above-stated forms, and a binding obligation of the purchaser to pay the balance of such purchase price, the issuance and sale of the shares of Offered Preferred Stock will have been duly authorized by all necessary corporate action on the part of Fidelity, and such shares will be validly issued, fully paid and nonassessable. 3. With respect to Depositary Shares representing fractional interests in any series of Preferred Stock, when (i) the Board of Directors has taken all necessary corporate action to authorize the offer, sale and issuance of, and to fix and determine the terms of, the Depositary Shares and the related series of Preferred Stock, including the adoption of a Certificate of Designations for such related series of Preferred Stock in the form required by applicable law; (ii) such Certificate of Designations has been duly filed with the Secretary of State of the State of Delaware; (iii) the terms of the Depositary Shares and of their issuance and sale have been duly established in conformity with the Deposit Agreement; (iv) the Deposit Agreement has been duly executed and delivered; (v) the related series of Preferred Stock has been duly authorized and validly issued in accordance with the laws of the State of Delaware and delivered to the Depositary for deposit in accordance with the Deposit Agreement; and (vi) the Receipts evidencing the Depositary Shares have been duly issued against deposit of the related series of Preferred Stock with the Depositary in accordance with 4 Fidelity National Financial, Inc. December 14, 1998 Page Four the Deposit Agreement, the issuance and sale of the Depositary Shares will be validly issued and the Receipts will entitle the holders thereof to the rights specified therein and in the Deposit Agreement. 4. With respect to the shares of Common Stock (the "Offered Common Stock"), when (i) the Board of Directors has taken all necessary corporate action to authorize the offer, sale and issuance of the Offered Common Stock; (ii) certificates representing the shares of the Offered Common Stock in the form of the specimen certificates examined by us have been manually signed by an authorized officer of the transfer agent and registrar for the Common Stock and registered by such transfer agent and registrar, and delivered to the purchasers thereof; and (iii) Fidelity receives consideration per share of the Offered Common Stock (A) in such an amount (not less than the par value per share) as may be determined by the Board of Directors in the form of cash, services rendered, personal property, real property, leases of real property, or a combination thereof or (B) in an amount not less than the amount of consideration determined to be capital, in any of the above-stated forms, and a binding obligation of the purchaser to pay the balance of such purchase price, the issuance and sale of the shares of Offered Common Stock (including any Offered Common Stock duly issued upon exchange or conversion of any Debt Securities or shares of Preferred Stock that are exchangeable or convertible into Common Stock) will have been duly authorized by all necessary corporate action on the part of Fidelity, and such shares will be validly issued, fully paid and nonassessable. The foregoing opinions are subject to the following: A. Notwithstanding the foregoing, the opinions expressed above with respect to the Offered Debt Securities shall be deemed not to address the application of the Commodity Exchange Act, as amended, or the rules, regulations or interpretations of the Commodity Futures Trading Commission to Offered Debt Securities the payment or interest on which will be determined by reference to one or more currency exchange rates, commodity prices, equity indices or other factors. B. With respect to any Indenture, Deposit Agreement or other agreement or instrument evidencing or relating to any Offered Securities, we have not examined the question of what law would govern the interpretation or enforcement thereof, and our opinions are based on the assumption that the internal laws of the State of California would govern such agreement or instrument and the transactions contemplated thereby. We express no opinion regarding the choice of law provisions of any such agreement or instrument. We are members of the Bar of the State of California and, accordingly, do not purport to be experts on, or to be qualified to express any opinion herein concerning, nor do we express any opinion concerning, any law other than the laws of the State of California and the General Corporation Law of the State of Delaware. 5 Fidelity National Financial, Inc. December 14, 1998 Page Five We hereby consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement. We also consent to the reference to our firm under the caption "Legal Opinions" in the Registration Statement. Very truly yours, /s/ STRADLING YOCCA CARLSON & RAUTH EX-12.1 8 COMPUTATIONS OF RATIO OF EARNINGS TO FIXED CHARGES 1 EXHIBIT 12.1 FIDELITY NATIONAL FINANCIAL, INC. Calculation of Ratios of Earnings to Fixed Charges
Nine months ended Year ended December 31, September 30, ----------------------------------------------- ------------------ 1993 1994 1995 1996 1997 1997 1998 ------- ------- ------- ------- ------- ------- -------- (Dollars in thousands) Earnings: Pretax income from continuing operations $68,771 $17,965 $11,482 $48,226 $85,603 $53,917 $132,460 Fixed charges 2,727 9,078 10,137 11,590 12,269 9,190 9,414 ------- ------- ------- ------- ------- ------- -------- $71,498 $27,043 $21,619 $59,816 $97,872 $63,107 $141,874 ======= ======= ======= ======= ======= ======= ======== Fixed charges: Interest expense $ 2,727 $ 4,377 $ 5,221 $ 6,295 $ 6,330 $ 4,448 $ 6,077 Amortization of original issue discount and debt issuance costs -- 4,701 4,916 5,295 5,939 4,742 3,337 ------- ------- ------- ------- ------- ------- -------- $ 2,727 $ 9,078 $10,137 $11,590 $12,269 $ 9,190 $ 9,414 ======= ======= ======= ======= ======= ======= ======== Ratio of Earnings to Fixed charges 26.2 3.0 2.1 5.2 8.0 6.9 15.1
EX-23.1 9 CONSENT OF KPMG PEAT MARWICK LLP 1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS The Board of Directors Fidelity National Financial, Inc.: We consent to the inclusion of our report dated June 19, 1998, with respect to the consolidated Financial Statements of Fidelity National Financial, Inc. and subsidiaries as of December 31, 1997 and 1996, and the related consolidated statements of earnings, stockholders' equity and cash flows for each of the years in the three-year period ended December 31, 1997, which report appears in the Form 8-K of Fidelity National Financial, Inc. dated June 24, 1998, and to the reference of our firm under the heading "Experts" in the registration statement. /s/ KPMG PEAT MARWICK LLP Los Angeles, California December 14, 1998 EX-23.2 10 CONSENT OF EHRHARDT KEEFE STEINER & HOTTMAN PC 1 EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference, in the Registration Statement on Form S-3, as amended, of our report dated August 20, 1997, on our audit of the consolidated financial statements of Granite Financial, Inc. and Subsidiaries and to the reference to our firm under the heading "Experts" in the registration statement. /s/ EHRHARDT KEEFE STEINER & HOTTMAN PC --------------------------------------- Ehrhardt Keefe Steiner & Hottman PC December 11, 1998 Denver, Colorado -----END PRIVACY-ENHANCED MESSAGE-----