EXECUTION COPY
===============================================================================
OPENWAVE SYSTEMS INC.
2 3/4% Convertible Subordinated Notes
due 2008
INDENTURE
Dated as of September 9, 2003
U.S. BANK NATIONAL ASSOCIATION
TRUSTEE
===============================================================================
CROSS REFERENCE TABLE*
TIA Section..................................................... Indenture Section
310(a)(1)....................................................... 7.10
(a)(2)..................................................... N.A.
(a)(3)..................................................... N.A.
(a)(4)..................................................... N.A.
(a)(5)..................................................... N.A.
(b)........................................................ 7.10
(c)........................................................ N.A.
311(a).......................................................... 7.11
(b)........................................................ 7.11
(c)........................................................ N.A.
312(a).......................................................... N.A.
(b)........................................................ 13.03
(c)........................................................ 13.03
313(a).......................................................... 7.06
(b)........................................................ 7.06
(c)........................................................ N.A.
(d)........................................................ N.A.
314(a).......................................................... 4.02
(b)........................................................ 12.01(e)
(c)(1)..................................................... N.A.
(c)(2)..................................................... N.A.
(c)(3)..................................................... N.A.
(d)........................................................ 12.01(d)
(e)........................................................ N.A.
(f)........................................................ N.A.
315(a).......................................................... 7.01
(b)........................................................ 7.05
(c)........................................................ N.A.
(d)(1)..................................................... 7.01
(d)(2)..................................................... 7.01
(d)(3)..................................................... 7.01
(e)........................................................ 6.11
316(a) (last sentence).......................................... N.A.
(a)(1)(A).................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2)..................................................... N.A.
(b)........................................................ N.A.
317(a)(1)....................................................... N.A.
(a)(2)..................................................... N.A.
(b)........................................................ N.A.
318(a).......................................................... N.A.
______________________________
* Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
Table of Contents
Page
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions.........................................................................1
SECTION 1.02 Other Definitions..................................................................10
SECTION 1.03 Incorporation by Reference of Trust Indenture Act..................................10
SECTION 1.04 Rules of Construction..............................................................11
SECTION 1.05 Acts of Holders....................................................................11
ARTICLE 2
THE NOTES
SECTION 2.01 Form and Dating....................................................................12
SECTION 2.02 Execution and Authentication.......................................................14
SECTION 2.03 Registrar, Paying Agent and Conversion Agent.......................................14
SECTION 2.04 Paying Agent to Hold Money and Notes in Trust......................................15
SECTION 2.05 Holder Lists.......................................................................15
SECTION 2.06 Transfer and Exchange..............................................................15
SECTION 2.07 Replacement Notes..................................................................17
SECTION 2.08 Outstanding Notes; Determinations of Holders' Action...............................17
SECTION 2.09 Temporary Notes....................................................................18
SECTION 2.10 Cancellation.......................................................................18
SECTION 2.11 Persons Deemed Owners..............................................................19
SECTION 2.12 Global Notes.......................................................................19
SECTION 2.13 CUSIP Numbers......................................................................23
SECTION 2.14 Defaulted Interest.................................................................23
SECTION 2.15 Registration Default...............................................................24
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Optional Redemption................................................................24
SECTION 3.02 Notice of Trustee..................................................................24
SECTION 3.03 Selection of Notes to be Redeemed..................................................24
SECTION 3.04 Notice of Redemption...............................................................25
SECTION 3.05 Effect of Notice of Redemption.....................................................26
SECTION 3.06 Deposit of Redemption Price........................................................26
SECTION 3.07 Notes Redeemed in Part.............................................................26
SECTION 3.08 Conversion Arrangement on Call for Redemption......................................26
SECTION 3.09 Repurchase of Notes at Option of the Holder upon Change in Control.................27
SECTION 3.10 Effect of Change in Control Repurchase Notice......................................32
SECTION 3.11 Deposit of Change in Control Repurchase Price......................................32
SECTION 3.12 Notes Purchased in Part............................................................33
SECTION 3.13 Covenant to Comply with Securities Laws upon Purchase of Notes.....................33
SECTION 3.14 Repayment to the Company...........................................................33
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Principal, Premium, Interest on the Notes...............................33
SECTION 4.02 SEC and Other Reports..............................................................34
SECTION 4.03 Compliance Certificate.............................................................34
SECTION 4.04 Further Instruments and Acts.......................................................34
SECTION 4.05 Maintenance of Office or Agency....................................................34
SECTION 4.06 Delivery of Certain Information....................................................35
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets..........................................35
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default..................................................................36
SECTION 6.02 Acceleration.......................................................................38
SECTION 6.03 Other Remedies.....................................................................38
SECTION 6.04 Waiver of Past Defaults............................................................38
SECTION 6.05 Control by Majority................................................................39
SECTION 6.06 Limitation on Suits................................................................39
SECTION 6.07 Rights of Holders to Receive Payment and to Convert................................39
SECTION 6.08 Collection Suit by Trustee.........................................................39
SECTION 6.09 Trustee May File Proofs of Claim...................................................39
SECTION 6.10 Priorities.........................................................................40
SECTION 6.11 Undertaking for Costs..............................................................41
SECTION 6.12 Waiver of Stay, Extension or Usury Laws............................................41
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee..................................................................41
SECTION 7.02 Rights of Trustee..................................................................42
SECTION 7.03 Individual Rights of Trustee.......................................................44
SECTION 7.04 Trustee's Disclaimer...............................................................44
SECTION 7.05 Notice of Defaults.................................................................44
SECTION 7.06 Reports by Trustee to Holders......................................................44
SECTION 7.07 Compensation and Indemnity.........................................................44
SECTION 7.08 Replacement of Trustee.............................................................45
SECTION 7.09 Successor Trustee by Merger........................................................46
SECTION 7.10 Eligibility; Disqualification......................................................46
SECTION 7.11 Preferential Collection of Claims Against Company..................................46
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Notes....................................................46
SECTION 8.02 Repayment of the Company...........................................................46
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders.........................................................47
SECTION 9.02 With Consent of Holders............................................................48
SECTION 9.03 Compliance with Trust Indenture Act................................................49
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions.............................49
SECTION 9.05 Notation on or Exchange of Notes...................................................49
SECTION 9.06 Trustee to Sign Supplemental Indentures............................................49
SECTION 9.07 Effect of Supplemental Indentures..................................................49
ARTICLE 10
CONVERSION
SECTION 10.01 Conversion Right and Conversion Price..............................................50
SECTION 10.02 Exercise of Conversion Right.......................................................50
SECTION 10.03 Fractions of Shares................................................................51
SECTION 10.04 Adjustment of Conversion Price.....................................................51
SECTION 10.05 Notice of Adjustments of Conversion Price..........................................58
SECTION 10.06 Notice Prior to Certain Actions....................................................58
SECTION 10.07 Company to Reserve Common Stock....................................................59
SECTION 10.08 Taxes on Conversions...............................................................59
SECTION 10.09 Covenant as to Common Stock........................................................59
SECTION 10.10 Cancellation of Converted Notes....................................................59
SECTION 10.11 Effect of Reclassification, Consolidation, Merger or Sale..........................59
SECTION 10.12 Adjustment for Other Distributions.................................................61
SECTION 10.13 Responsibility of Trustee for Conversion Provisions................................62
SECTION 10.14 Rights Issued in Respect of Common Stock Issued Upon Conversion....................62
ARTICLE 11
SUBORDINATION
SECTION 11.01 Agreement to Subordinate...........................................................62
SECTION 11.02 Liquidation; Dissolution; Bankruptcy...............................................62
SECTION 11.03 Default on Designated Senior Indebtedness..........................................63
SECTION 11.04 Acceleration of Notes..............................................................64
SECTION 11.05 When Distribution Must Be Paid Over................................................64
SECTION 11.06 Notice by the Company..............................................................65
SECTION 11.07 Subrogation........................................................................65
SECTION 11.08 Relative Rights....................................................................65
SECTION 11.09 Subordination May Not Be Impaired by the Company...................................65
SECTION 11.10 Distribution or Notice to Representative...........................................66
SECTION 11.11 Rights of Trustee and Paying Agent.................................................66
ARTICLE 12
SECURITY
SECTION 12.01 Security...........................................................................66
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls.......................................................68
SECTION 13.02 Notices............................................................................69
SECTION 13.03 Communication by Holders with Other Holders........................................69
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.................................69
SECTION 13.05 Statements Required in Certificate or Opinion......................................70
SECTION 13.06 Separability Clause................................................................70
SECTION 13.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar.....................70
SECTION 13.08 Legal Holidays.....................................................................70
SECTION 13.09 GOVERNING LAW......................................................................70
SECTION 13.10 No Recourse Against Others.........................................................70
SECTION 13.11 Successors.........................................................................71
SECTION 13.12 Multiple Originals.................................................................71
EXHIBITS
Exhibit A-1.......Form of Global Note
Exhibit A-2.......Form of Face of Certificated Note
Exhibit B-1.......Transfer Certificate
INDENTURE dated as of September 9, 2003 between OPENWAVE
SYSTEMS INC., a Delaware corporation (the "Company"), and U.S. Bank National
Association, as Trustee hereunder (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 2 3/4% Convertible Subordinated Notes due 2008 (the "Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Notes, when the Notes are
executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid agreement of the
Company, in accordance with their and its terms, have been done. Further, all
things necessary to duly authorize the issuance of the Common Stock of the
Company issuable upon the conversion of the Notes, and to duly reserve for
issuance the number of shares of Common Stock issuable upon such conversion,
have been done.
The Notes will be partially secured pursuant to the terms of
the Pledge Agreement (as defined herein) by Pledged Securities (as defined
herein).
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that are required to
be a part of and to govern indentures qualified under the Trust Indenture Act of
1939, as amended.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. 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 accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(3) the words "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.
"144A Global Note" means a permanent Global Note in the form
of the Note attached hereto as Exhibit A-1, and that is deposited with and
registered in the name of the Depositary, representing Notes sold in reliance on
Rule 144A under the Securities Act.
"30-day Option" means the 30-day over-allotment option granted
by the Company to the Initial Purchaser to purchase up to an additional
$15,000,000 aggregate principal amount of Notes pursuant to the Purchase
Agreement.
"Additional Interest Amount" means, the additional interest
amount payable by the Company upon the occurrence of an Event (as defined in the
Registration Rights Agreement), in the manner and in the amounts provided by the
Registration Rights Agreement.
"Additional Pledged Securities" means additional Collateral
within the meaning of Section 9(a)(iv) of in the Pledge Agreement.
"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 purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Note or beneficial interest therein, the rules
and procedures of the Depositary for such Note, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any
similar federal or state law for the relief of debtors.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of such board.
"Board Resolution" means a resolution duly adopted by the
Board of Directors, a copy of which, certified by the Secretary or an Assistant
Secretary of the Company to be in full force and effect on the date of such
certification, shall have been delivered to the Trustee.
"Business Day" means each day of the year other than a
Saturday or a Sunday on which banking institutions are not required or
authorized to close in The City of New York.
"Capital Stock" of any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock or other equity issued
by that corporation.
"Certificated Notes" means Notes that are in the form of the
Notes attached hereto as Exhibit A-2.
"Closing Price" of any security on any date of determination
means:
(1) the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of such security on the New
York Stock Exchange on such date if such security is then-listed for
trading thereon;
(2) if such security is not listed for trading on the New York
Stock Exchange on such date, the closing sale price as reported in the
composite transactions for the principal U.S. securities exchange on
which such security is so listed;
(3) if such security is not so listed on a U.S. national or
regional securities exchange, the closing bid price as quoted on the
Nasdaq National Market;
(4) if such security is not quoted or listed on the Nasdaq
National Market, the last quoted bid price for such security in the
over-the-counter market as reported by the National Quotation Bureau or
similar organization; or
(5) if such bid price is not available, the price determined
by a nationally recognized independent investment banking firm retained
for this purpose by the Company, or a price determined in good faith by
the Board of Directors.
"Closing Time" has the meaning specified in the Purchase
Agreement.
"Common Stock" means the Common Stock, par value $0.001 per
share, of the Company as it exists on the date of this Indenture. Subject to the
provisions of Section 10.11, shares issuable on conversion or repurchase of
Notes shall include only shares of Common Stock or shares of any class or
classes of common stock resulting from any reclassification or reclassifications
thereof; provided, however, that if at any time there shall be more than one
such resulting class, the shares so issuable on conversion of Notes shall
include shares of all such classes, and the shares of each such class then so
issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"common stock" means any stock of any class of Capital Stock
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the issuer.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture, and, thereafter, "Company" shall mean
such successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any two Officers.
"Conversion Agent" means any person authorized by the Company
to convert Notes in accordance with Article 10 hereof. On the date of this
Indenture, the Company hereby appoints the Trustee as the Conversion Agent.
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx,
Xxxxxxxxx 00000-0000, or such other address as the Trustee may designate from
time to time by notice to the Holders and the Company, or the principal
corporate trust office of any successor Trustee (or such other address as a
successor Trustee may designate from time to time by notice to the Holders and
the Company).
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Date of Delivery" has the meaning specified in the Purchase
Agreement.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Designated Senior Indebtedness" means the Company's
obligations under any particular Senior Indebtedness that expressly provides
that such Senior Indebtedness shall be "Designated Senior Indebtedness" for
purposes of this Indenture.
"Dollar" or "U.S.$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"GAAP" means United States generally accepted accounting
principles as in effect from time to time.
"Global Notes" means Notes that are in the form of the Notes
attached hereto as Exhibit A-1 and, to the extent that such Notes are required
to bear the Legend required by Section 2.06, such Notes will be in the form of a
144A Global Note.
"Holder" means a person in whose name a Note is registered on
the Registrar's books.
"Indebtedness" means, with respect to any person, without
duplication:
(1) all obligations and other liabilities, contingent or
otherwise, of such person for borrowed money (including overdrafts) to
the extent such obligations and other liabilities would appear as a
liability upon the consolidated balance sheet of such a person in
accordance with GAAP or for the deferred purchase price of property or
services, excluding any trade payables and other accrued current
liabilities incurred in the ordinary course of business, but including,
without limitation, all obligations, contingent or otherwise, of such
person in connection with any letters of credit and acceptances issued
under letter of credit facilities, acceptance facilities or other
similar facilities;
(2) all obligations of such person evidenced by bonds, credit
or loan agreements, notes, debentures or other similar instruments to
the extent such obligations would appear as a liability upon the
consolidated balance sheet of such a person in accordance with GAAP;
(3) indebtedness of such person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), but excluding trade
payables arising in the ordinary course of business;
(4) all obligations and liabilities, contingent or otherwise,
in respect of leases of the person required, in conformity with GAAP,
to be accounted for as capitalized lease obligations on the
consolidated balance sheet of the person;
(5) all net obligations of such person under or in respect of
interest rate agreements, currency agreements or other swap, cap floor
or collar agreements, hedge agreements, forward contracts or similar
instruments or agreements or foreign currency, hedge, exchange or
purchase or similar instruments or agreements;
(6) all indebtedness referred to in (but not excluded from)
the preceding clauses (1) through (5) of other persons, the payment of
which is secured by (or for which the holder of such indebtedness has
an existing right, contingent or otherwise, to be secured by) any Lien
on or with respect to property (including, without limitation, accounts
and contract rights) owned by the referent person, even though such
person has not assumed or become liable for the payment of such
indebtedness (the amount of such obligation being deemed to be the
lesser of the value of such property or asset or the amount of the
obligation so secured);
(7) all guarantees by such person of indebtedness referred to
in this definition or of any other person;
(8) all Redeemable Capital Stock of such person valued at the
greater of its voluntary or involuntary maximum fixed repurchase price
plus accrued and unpaid dividends;
(9) the present value of the obligation of such person as
lessee for net rental payments (excluding all amounts required to be
paid on account of maintenance and repairs, insurance, taxes,
assessments, water, utilities and similar charges to the extent
included in such rental payments) during the remaining term of the
lease included in any such sale and leaseback transaction including any
period for which such lease has been extended or may, at the option of
the lessor, be extended. Such present value shall be calculated using a
discount rate equal to the rate of interest implicit in such
transaction, determined in accordance with GAAP; and
(10) any and all refinancings, replacements, deferrals,
renewals, extensions and refundings of or amendments, modifications or
supplements to, any indebtedness, obligation or liability of the kind
described in clauses (1) through (9) above.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof, including the provisions
of the TIA that are deemed to be a part hereof.
"Initial Pledged Securities" means the U.S. Government
Obligations identified in Schedule I to the Pledge Agreement.
"Initial Purchaser" means Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated.
"Interest Payment Date" means the date specified in the Notes
as the fixed date on which an installment of interest on the Notes is due and
payable.
"Interest Rate" means 2 3/4% per annum.
"Issue Date" of any Note means the date on which the Note was
originally issued or deemed issued as set forth on the face of the Note.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect of such
asset given to secure Indebtedness, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or agreement
to give any financing statement under the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction with respect to any such lien, pledge, charge or
security interest).
"Notes" has the meaning ascribed to it in the first paragraph
under the caption "Recitals of the Company."
"Officer" means the Chairman of the Board, the Vice Chairman,
the Chief Executive Officer, the President, any Executive Vice President, any
Senior Vice President, any Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing
the information specified in Sections 13.04 and 13.05, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.03 shall be signed by one authorized
financial or accounting Officer of the Company but need not contain the
information specified in Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 13.04 and 13.05, from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of, or
counsel to, the Company or the Trustee.
"person" or "Person" means any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or government or any agency or
political subdivision thereof, including any subdivision or ongoing business of
any such entity or substantially all of the assets of any such entity,
subdivision or business.
"Pledge Agreement" means the Pledge Agreement, dated as of
September 9, 2003, between the Company and the Trustee, and as such agreement
may be amended, restated, supplemented or otherwise modified from time to time,
including all annexes and schedules attached thereto.
"Pledged Account" has the meaning specified in the Pledge
Agreement.
"Pledged Securities" means the U.S. Government Obligations to
be purchased by the Company and held in the Pledged Account in accordance with
the Pledge Agreement.
"principal" of a Note means the principal amount due on the
Stated Maturity as set forth on the face of the Note.
"Purchase Agreement" means the Purchase Agreement, dated as of
September 3, 2003, between the Company and the Initial Purchaser.
"Redeemable Capital Stock" means any class of the Company's
Capital Stock that, either by its terms, by the terms of any securities into
which it is convertible or exchangeable or by contract or otherwise, is, or upon
the happening of an event or passage of time would be, required to be redeemed
(whether by sinking fund or otherwise) prior to the date that is 91 days after
the Stated Maturity of the Notes or is redeemable at the option of the holder
thereof at any time prior to such date (provided, however, that any Capital
Stock that would constitute Redeemable Capital Stock solely because the holders
thereof have the right to require the issuer to repurchase such Redeemable
Capital Stock upon the occurrence of a Change in Control shall not constitute
Redeemable Capital Stock if the terms of such Capital Stock provide that (i) any
such repurchases may not be made sooner than 10 days after the Change in Control
Repurchase Date and (ii) the repurchase of any such Capital Stock is
subordinated to the payment in full of the Notes repurchased on the Change in
Control Repurchase Date), or is convertible into or exchangeable for debt
securities at any time prior to such date (unless it is convertible or
exchangeable solely at the Company's option).
"Redemption Date" or "redemption date" means the date
specified for redemption of the Notes in accordance with the terms of the Notes
and this Indenture.
"Redemption Price" or "redemption price" shall have the
meaning set forth in Section 3.01 of this Indenture and paragraph 5 on the
reverse side of the Notes.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of September 9, 2003 entered into by the Company and the
Initial Purchaser.
"Regular Record Date" means, with respect to the interest
payable on any Interest Payment Date, the close of business on the February 23
or August 23 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject.
"Restricted Note" means a Note required to bear the
restrictive legend set forth in the form of Note set forth in Exhibits A-1 and
A-2 of this Indenture.
"Rule 144" means Rule 144 under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to
time.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the United States Securities Act of
1933 (or any successor statute), as amended from time to time.
"Senior Indebtedness" means any Indebtedness of the Company,
unless by the terms of the instrument creating or evidencing such Indebtedness,
such Indebtedness is expressly designated equal or junior in right of payment to
the Notes.
Notwithstanding the foregoing, "Senior Indebtedness" shall not
include:
(a) Indebtedness evidenced by the Notes;
(b) Indebtedness of the Company that by operation of law is
subordinate to any general unsecured obligations of the Company;
(c) accounts payable or other liabilities owed or owing by the
Company to trade creditors (including guarantees thereof or instruments
evidencing such liabilities);
(d) amounts owed by the Company for compensation to employees
or for services rendered to the Company;
(e) Indebtedness of the Company to any Subsidiary or any other
Affiliate of the Company or any of such Affiliate's Subsidiaries;
(f) Capital Stock of the Company, including Redeemable Capital
Stock;
(g) Indebtedness of the Company which, when incurred and
without regard to any election under Section 1111(b) of Title 11 of the
United States Code, is without recourse to the Company; and
(h) any liability for federal, state or local taxes or other
taxes, owed by the Company.
"Significant Subsidiary" means any Subsidiary that would be,
as of the date of the applicable action set forth in Section 6.01(6) or Section
6.01(7) hereof, a "significant subsidiary" of the Company within the meaning of
Rule 1-02(w) of Regulation S-X promulgated by the SEC.
"Stated Maturity", when used with respect to any Note, means
the date specified in such Note as the fixed date on which the principal of such
Note is due and payable.
"Subsidiary" means, with respect to any Person, (i) a
corporation, a majority of whose Capital Stock with voting power, under ordinary
circumstances, to elect directors is, at the date of determination, directly or
indirectly owned by such Person, by one or more Subsidiaries of such Person or
by such Person and one or more Subsidiaries of such Person, (ii) a partnership
in which such Person or a Subsidiary of such Person holds a majority interest in
the equity capital or profits of such partnership, or (iii) any other entity
(other than a corporation) in which such Person, a Subsidiary of such Person or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination, has (x) at least a majority ownership interest or
(y) the power to elect or direct the election of a majority of the directors or
other governing body of such entity.
"TIA" means the Trust Indenture Act of 1939 as in effect on
the date of this Indenture, provided, however, that in the event the TIA is
amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"Trading Day" means a day during which trading in the Common
Stock generally occurs on the New York Stock Exchange or, if the Common Stock is
not listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the Common Stock is then listed or, if the
Common Stock is not listed on a national or regional securities exchange, on
Nasdaq National Market, or, if the Common Stock is not quoted on the Nasdaq
National Market, on the principal other market on which the Common Stock is then
traded.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"United States" means the United States of America (including
the States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (its "possessions" including Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands).
"U.S. Government Obligations" means (A) securities that are
(i) direct obligations of the United States of America, for the payment of which
the full faith and credit of the United States is pledged or (ii) obligations of
a Person controlled or supervised by or acting as an agency or instrumentality
of the United States, the payment of which is unconditionally guaranteed as a
full faith and credit obligation by the United States, which, in either case,
are not callable or redeemable at the option of the issuer thereof at any time
prior to the stated maturity thereof, or (B) any mutual fund that has at least
95% of its assets continuously invested in investments of the type described in
clause (A) above and has the highest rating attainable by Xxxxx'x Investor
Services and Standard & Poor's Ratings Services, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation for the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 1.02 Other Definitions.
Term Defined in Section
---- ------------------
"Act"........................................................................... 1.05(a)
"Agent Members"................................................................. 2.12(f)(5)
"Change in Control"............................................................. 3.09(a)
"Change in Control Repurchase Date"............................................. 3.09(a)
"Change in Control Repurchase Notice"........................................... 3.09(d)
"Change in Control Repurchase Price"............................................ 3.09(a)
"Conversion Date"............................................................... 10.02
"Conversion Price".............................................................. 10.01
"Current Market Price".......................................................... 10.04(g)
"Depositary".................................................................... 2.01(a)
"DTC"........................................................................... 2.01(a)
"Event of Default".............................................................. 6.01
"Exchange Act".................................................................. 3.09(a)
"excluded securities"........................................................... 10.04(d)
"Expiration Time"............................................................... 10.04(f)
"Ex-Dividend Date".............................................................. 10.12
"fair market value"............................................................. 10.04(g)
"Legal Holiday"................................................................. 13.08
"Legend"........................................................................ 2.06(f)
"Non-Electing Share"............................................................ 10.11
"Non-Payment Default"........................................................... 11.03(b)
"Notice of Default"............................................................. 6.01
"Paying Agent".................................................................. 2.03
"Payment Blockage Period"....................................................... 11.03(b)
"Payment Default"............................................................... 11.03(a)
"Purchased Shares".............................................................. 10.04(f)
"Post-Distribution Price"....................................................... 10.12
"Permitted Junior Securities" .................................................. 11.02
"QIBs".......................................................................... 2.01(a)
"Record Date"................................................................... 10.04(g)
"Reference Period".............................................................. 10.04(d)
"Registrar"..................................................................... 2.03
"Rights"........................................................................ 10.14
"Rights Agreement".............................................................. 10.14
"Rights Plan"................................................................... 10.14
"Rule 144A Information"......................................................... 4.06
"transfer"...................................................................... 2.12(e)
SECTION 1.03 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture Notes" means the Notes.
"indenture Note holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture Notes means the Company.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04 Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP as in effect from time to time;
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words in the
plural include the singular.
SECTION 1.05 Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by their agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Trustee
deems sufficient.
(c) The ownership of Notes shall be proved by the register for
the Notes or by a certificate of the Registrar.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Note shall bind every future
Holder of the same Note and the holder of every Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Note.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a resolution of the Board of
Directors, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of business on such record
date shall be deemed to be Holders for purposes of determining whether Holders
of the requisite proportion of outstanding Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the outstanding Notes shall be
computed as of such record date; provided that no such authorization, agreement
or consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
ARTICLE 2
THE NOTES
SECTION 2.01 Form and Dating. The Notes and the Trustee's
certificate of authentication shall be substantially in the form of Exhibits A-1
and A-2, which are incorporated into and made a part of this Indenture. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or endorsement
required by usage is in a form acceptable to the Company). The Company shall
provide any such notations, legends or endorsements to the Trustee in writing.
Each Note shall be dated the date of its authentication.
(a) 144A Global Notes. Notes offered and sold within the
United States to "qualified institutional buyers" as defined in Rule 144A
("QIBs") in reliance on Rule 144A shall be issued initially in the form of a
144A Global Note, which shall be deposited with the Trustee at its Corporate
Trust Office, as custodian for, and registered in the name of, The Depository
Trust Company ("DTC") or its nominee (such depositary, or any successor thereto,
and any such nominee being hereinafter referred to as the "Depositary") duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the 144A Global Note may from time
to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary as hereinafter provided.
(b) Global Notes in General. Except as provided in Section
2.06 or 2.12, owners of beneficial interests in Global Notes will not be
entitled to receive physical delivery of Certificated Notes. Each Global Note
shall represent such of the outstanding Notes as shall be specified therein and
each shall provide that it shall represent the aggregate principal amount of
outstanding Notes from time to time endorsed thereon and that the aggregate
principal amount of outstanding Notes represented thereby may from time to time
be reduced or increased, as appropriate, to reflect exchanges, redemptions and
conversions.
Any adjustment of the aggregate principal amount of a Global
Note to reflect the amount of any increase or decrease in the principal amount
of outstanding Notes represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.12 hereof and shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply
only to Global Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(c), authenticate and deliver initially one or more Global
Notes that (a) shall be registered in the name of the Depositary, (b) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions or held by the Trustee as custodian for such Depositary and (c)
shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS,
IN WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST
COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF."
(d) Certificated Notes. Notes not issued as interests in the
Global Notes will be issued in certificated form substantially in the form of
Exhibit A-2 attached hereto.
SECTION 2.02 Execution and Authentication. An Officer shall
sign the Note for the Company by manual or facsimile signature.
Notes bearing the manual or facsimile signatures of
individuals who were at the time of the execution of the Notes 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 Notes or did not hold such offices at the
date of authentication of such Notes.
No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory of the
Trustee, and such certificate upon any Note shall be conclusive evidence, and
the only evidence, that such Note has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver Notes for original
issue in an aggregate principal amount of up to $135,000,000, or an aggregate
principal amount of up to $150,000,000 if the 30-day Option is exercised fully,
upon a Company Order without any further action by the Company. The aggregate
principal amount of Notes outstanding at any time may not exceed the amount set
forth in the foregoing sentence, except as provided in Section 2.07.
The Notes shall be issued only in registered form without
coupons and only in denominations of $1,000 in principal amount and any integral
multiple thereof.
SECTION 2.03 Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Notes may be presented for purchase or payment ("Paying Agent") and an
office or agency where Notes may be presented for conversion ("Conversion
Agent"). The Registrar shall keep a register of the Notes and of their transfer
and exchange. The Company may have one or more co-registrars, one or more
additional paying agents and one or more additional conversion agents. The term
Paying Agent includes any additional paying agent, including any named pursuant
to Section 4.05. The term Conversion Agent includes any additional conversion
agent, including any named pursuant to Section 4.05.
The Company shall enter into an appropriate agency agreement
with any Registrar, Paying Agent, Conversion Agent or co-registrar (other than
the Trustee). The agreement shall implement the provisions of this Indenture
that relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.06. The Company or
any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar,
Conversion Agent and Paying Agent in connection with the Notes.
SECTION 2.04 Paying Agent to Hold Money and Notes in Trust.
Except as otherwise provided herein, on or prior to each due date of payments in
respect of any Note, the Company shall deposit, or, in the case of the first six
scheduled interest payments on the Notes, if the Company so elects, cause to be
deposited in accordance with the Pledge Agreement, with the Paying Agent a sum
of money (in immediately available funds if deposited on the due date)
sufficient to make such payments when so becoming due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the making of payments in respect of the Notes and
shall notify the Trustee of any default by the Company in making any such
payment. At any time during the continuance of any such default, the Paying
Agent shall, upon the written request of the Trustee, forthwith pay to the
Trustee all money so held in trust. If the Company, a Subsidiary or an Affiliate
of either of them acts as Paying Agent, it shall segregate the money held by it
as Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money.
SECTION 2.05 Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall cause to be furnished to the Trustee at least semiannually on each
January 1 and July 1 during the term of the Notes a listing of Holders dated
within 13 days of the date on which the list is furnished and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders.
SECTION 2.06 Transfer and Exchange. Subject to Sections
2.01(b), 2.06(b) and 2.12 hereof,
(a) (i) upon surrender for registration of transfer of any
Note, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Holder or such Holder's attorney duly authorized
in writing, at the office or agency of the company designated as Registrar or
co-registrar pursuant to Section 2.03, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denomination or
denominations, of a like aggregate principal amount. The Company shall not
charge a service charge for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to pay all taxes, assessments or
other governmental charges that may be imposed in connection with the transfer
or exchange of the Notes from the Holder requesting such transfer or exchange.
(ii) At the option of the Holder, Notes may be exchanged for
other Notes of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Notes to be
exchanged, together with a written instrument of transfer satisfactory
to the Registrar duly executed by the Holder or such Holder's attorney
duly authorized in writing, at such office or agency. Whenever any
Notes are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Notes that the Holder
making the exchange is entitled to receive.
(iii) The Company shall not be required to make, and the
Registrar need not register, transfers or exchanges of Notes selected
for redemption (except, in the case of Notes to be redeemed in part,
the portion thereof not to be redeemed) or any Notes in respect of
which a Change in Control Repurchase Notice (as defined in Section
3.09(d)) has been given and not withdrawn by the Holder thereof in
accordance with the terms of this Indenture (except, in the case of
Notes to be purchased in part, the portion thereof not to be purchased)
or any Notes for a period of 15 days before the mailing of a notice of
redemption of Notes to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so
long as a Global Note remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Note, in whole or in part, shall be made only
in accordance with Section 2.12 and this Section 2.06(b). Transfers of a Global
Note shall be limited to transfers of such Global Note in whole, or in part, to
nominees of the Depositary or to a successor of the Depositary or such
successor's nominee.
(c) Successive registrations and registrations of transfers
and exchanges as aforesaid may be made from time to time as desired, and each
such registration shall be noted on the register for the Notes.
(d) Any Registrar appointed pursuant to Section 2.03 hereof
shall provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of Notes upon transfer
or exchange of Notes.
(e) No Registrar shall be required to make registrations of
transfer or exchange of Notes during any periods designated in the text of the
Notes or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Notes are issued upon the transfer, exchange or
replacement of Notes subject to restrictions on transfer and bearing the legends
set forth on the form of Note attached hereto as Exhibits A-1 and A-2 setting
forth such restrictions (collectively, the "Legend"), or if a request is made to
remove the Legend on a Note, the Notes so issued shall bear the Legend, or the
Legend shall not be removed, as the case may be, unless there is delivered to
the Company and the Registrar such satisfactory evidence, which shall include an
Opinion of Counsel, as may be reasonably required by the Company and the
Registrar, that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A or Rule 144 under the Securities Act or that such Notes are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon (i)
provision of such satisfactory evidence, or (ii) notification by the Company to
the Trustee and Registrar of the sale of such Note pursuant to a registration
statement that is effective at the time of such sale, the Trustee, at the
written direction of the Company, shall authenticate and deliver a Note that
does not bear the Legend.
(g) Any Note or Common Stock issued upon the conversion or
exchange of a Note that is purchased or owned by the Company or any Affiliate
thereof may not be resold by the Company or such Affiliate unless registered
under the Securities Act or resold pursuant to an exemption from the
registration requirements of the Securities Act in a transaction which results
in such Notes or Common Stock, as the case may be, no longer being "restricted
securities" (as defined under Rule 144).
SECTION 2.07 Replacement Notes. If (a) any mutilated Note is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Note, and there
is delivered to the Company and the Trustee such Note or indemnity as may be
required by them to save each of them harmless, then, in the absence of notice
to the Company or the Trustee that such Note 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 Note or in
lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Note, pay or purchase such Note, as the case may be.
Upon the issuance of any new Notes under this Section 2.07,
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) connected therewith.
Every new Note issued pursuant to this Section 2.07 in lieu of
any mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Note shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Notes duly issued hereunder.
The provisions of this Section 2.07 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.08 Outstanding Notes; Determinations of Holders'
Action. Notes outstanding at any time are all the Notes authenticated by the
Trustee except for those cancelled by it or delivered to it for cancellation,
those paid pursuant to Section 2.07 and those described in this Section 2.08 as
not outstanding. A Note does not cease to be outstanding because the Company or
an Affiliate thereof holds the Note; provided, however, that in determining
whether the Holders of the requisite principal amount of the outstanding Notes
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Notes owned by the Company or any other
obligor upon the Notes or any Affiliate of the Company or 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 any such
request, demand, authorization, direction, notice, consent or waiver, only Notes
which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded. Subject to the foregoing, only Notes outstanding at the time of
such determination shall be considered in any such determination (including,
without limitation, determinations pursuant to Articles 6 and 9).
If a Note is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture,
on a Redemption Date, or on the Business Day following the Change in Control
Repurchase Date, or on Stated Maturity, money or securities, if permitted
hereunder, sufficient to pay Notes payable on that date, then immediately after
such Redemption Date, Change in Control Repurchase Date or Stated Maturity, as
the case may be, such Notes shall cease to be outstanding and interest on such
Notes shall cease to accrue; provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture or
provision therefor reasonably satisfactory to the Trustee has been made.
If a Note is converted in accordance with Article 10, then
from and after the time of conversion on the conversion date, such Note shall
cease to be outstanding and interest shall cease to accrue on such Note.
SECTION 2.09 Temporary Notes. Pending the preparation of
definitive Notes, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Notes which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as conclusively
evidenced by their execution of such Notes.
If temporary Notes are issued, the Company will cause
definitive Notes to be prepared without unreasonable delay. After the
preparation of definitive Notes, the temporary Notes shall be exchangeable for
definitive Notes upon surrender of the temporary Notes at the office or agency
of the Company designated for such purpose pursuant to Section 2.03, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Notes the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged the temporary Notes shall in all
respects be entitled to the same benefits under this Indenture as definitive
Notes.
SECTION 2.10 Cancellation. All Notes surrendered for payment,
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, 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
Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. The Company may not reissue, reoffer or
resell new Notes to replace Notes it has paid or delivered to the Trustee for
cancellation or that any Holder has converted pursuant to Article 10. No Notes
shall be authenticated in lieu of or in exchange for any Notes cancelled as
provided in this Section 2.10, except as expressly permitted by this Indenture.
All cancelled Notes held by the Trustee shall be destroyed by the Trustee and
the Trustee shall, upon request, deliver a certificate of destruction to the
Company.
SECTION 2.11 Persons Deemed Owners. Prior to due presentment
of a Note for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Note is
registered as the owner of such Note for the purpose of receiving payment of
principal of the Note or the payment of any Redemption Price or Change in
Control Repurchase Price in respect thereof, and interest thereon, for the
purpose of conversion and for all other purposes whatsoever, whether or not such
Note 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.
SECTION 2.12 Global Notes. (a) Notwithstanding any other
provisions of this Indenture or the Notes, (A) transfers of a Global Note, in
whole or in part, shall be made only in accordance with Sections 2.06 and
2.12(a)(i), (B) transfer of a beneficial interest in a Global Note for a
Certificated Note shall comply with Sections 2.06 and 2.12(a)(ii) below, and (C)
transfers of a Certificated Note shall comply with Section 2.06 and Sections
2.12(a)(iii) and (iv) below.
(i) Transfer of Global Note. A Global Note may not be
transferred, in whole or in part, to any Person other than the
Depositary or a nominee or any successor thereof, and no such transfer
to any such other Person may be registered; provided that this clause
(i) shall not prohibit any transfer of a Note that is issued in
exchange for a Global Note but is not itself a Global Note. No transfer
of a Note to any Person shall be effective under this Indenture or the
Notes unless and until such Note has been registered in the name of
such Person. Nothing in this Section 2.12(a)(i) shall prohibit or
render ineffective (i) any transfer of a beneficial interest in a
Global Note effected in accordance with the other provisions of this
Section 2.12(a); and (ii) the transfer and exchange of beneficial
interests in a Global Note effected through the Depositary in
accordance with this Indenture and the procedures of the Depositary.
(ii) Restrictions on Transfer of a Beneficial Interest in a
Global Note for a Certificated Note. A beneficial interest in a Global
Note may not be exchanged for a Certificated Note except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a transfer of a beneficial interest in a Global Note in
accordance with Applicable Procedures for a Certificated Note in the
form satisfactory to the Trustee, together with:
(1) so long as the Notes are Restricted Notes, a certification
in the form set forth in Exhibit B-1;
(2) written instructions to the Trustee to make, or direct the
Registrar to make, an adjustment on its books and records with respect
to such Global Note to reflect a decrease in the aggregate principal
amount of the Notes represented by the Global Note, such instructions
to contain information regarding the Depositary account to be credited
with such decrease; and
(3) if the Company or Registrar so requests, an opinion of
counsel or other evidence reasonably satisfactory to them as to the
compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Registrar, the aggregate principal amount of Notes represented by the
Global Note to be decreased by the aggregate principal amount of the
Certificated Note to be issued, shall issue such Certificated Note and shall
debit or cause to be debited to the account of the Person specified in such
instructions a beneficial interest in the Global Note equal to the principal
amount of the Certificated Note so issued.
(iii) Transfer and Exchange of Certificated Notes. When
Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated
Notes; or
(y) to exchange such Certificated Notes for an equal
principal amount of Certificated Notes of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met;
provided, however, that the Certificated Notes surrendered for transfer
or exchange:
(1) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(2) so long as such Notes are Restricted Notes, such
Notes are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied
by the following additional information and documents, as
applicable:
(A) if such Certificated Notes are being
delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, a certification from such Holder to that
effect; or
(B) if such Certificated Notes are being
transferred to the Company, a certification to that
effect; or
(C) if such Certificated Notes are being
transferred pursuant to an exemption from
registration, (i) a certification to that effect (in
the form set forth in Exhibits B-1, if applicable)
and (ii) if the Company or Registrar so requests, an
opinion of counsel or other evidence reasonably
satisfactory to them as to the compliance with the
restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Note for a
Beneficial Interest in a Global Note. A Certificated Note may not be
exchanged for a beneficial interest in a Global Note except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Certificated Note, duly endorsed or accompanied by
appropriate instruments of transfer, in form reasonably satisfactory to
the Trustee, together with:
(1) so long as the Notes are Restricted Notes,
certification, in the form set forth in Exhibit B-1, that such
Certificated Note is being transferred to a QIB in accordance
with Rule 144A; and
(2) written instructions directing the Trustee to
make, or to direct the Registrar to make, an adjustment on its
books and records with respect to such Global Note to reflect
an increase in the aggregate principal amount of the Notes
represented by the Global Note, such instructions to contain
information regarding the Depositary account to be credited
with such increase, then the Trustee shall cancel such
Certificated Note and cause, or direct the Registrar to cause,
in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the
aggregate principal amount of Notes represented by the Global
Note to be increased by the aggregate principal amount of the
Certificated Note to be exchanged, and shall credit or cause
to be credited to the account of the Person specified in such
instructions a beneficial interest in the Global Note equal to
the principal amount of the Certificated Note so cancelled. If
no Global Notes are then outstanding, the Company shall issue
and the Trustee shall authenticate, upon written order of the
Company in the form of an Officers' Certificate, a new Global
Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be
subject to the restrictions on transfer provided in the Legend, including the
delivery of an opinion of counsel, if so provided. Whenever any Restricted Note
is presented or surrendered for registration of transfer or for exchange for a
Note registered in a name other than that of the Holder, such Note must be
accompanied by a certificate in substantially the form set forth in Exhibit B-1,
dated the date of such surrender and signed by the Holder of such Note, as to
compliance with such restrictions on transfer. The Registrar shall not be
required to accept for such registration of transfer or exchange any Note not so
accompanied by a properly completed certificate and other evidence the Registrar
may request as to the compliance with the restrictions set forth in the Legend.
(c) The restrictions imposed by the Legend upon the
transferability of any Note shall cease and terminate when such Note has been
sold pursuant to an effective registration statement under the Securities Act or
transferred in compliance with Rule 144 or, if earlier, upon the expiration of
the holding period applicable to sales thereof under Rule 144(k). Any Note as to
which such restrictions on transfer shall have expired in accordance with their
terms or shall have terminated may, upon a surrender of such Note for exchange
to the Registrar in accordance with the provisions of this Section 2.12
(accompanied, in the event that such restrictions on transfer have terminated by
reason of a transfer in compliance with Rule 144, by an opinion of counsel
having substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and in form
acceptable to the Company, to the effect that the transfer of such Note has been
made in compliance with Rule 144 or such successor provision), be exchanged for
a new Note, of like tenor and aggregate principal amount, which shall not bear
the restrictive Legend. The Company shall inform the Trustee of the effective
date of any registration statement registering the Notes under the Securities
Act. The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Note (including any transfers between or among DTC participants, members
or beneficial owners in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by, the terms of this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof. The Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with the
aforementioned opinion of counsel or registration statement.
(d) In the event that Rule 144(k) as promulgated under the
Securities Act is amended to shorten the two-year restriction period, then
restrictions on transfer on the Notes and the Common Stock will be deemed to
refer to the shortened restriction period. The Company undertakes to inform the
Trustee if such change to Rule 144(k) occurs and the effect (if any) to the
restrictions on transfer applicable to the Notes and Common Stock and shall
provide additional information (including an Opinion of Counsel and/or an
Officers' Certificate) if so requested by the Trustee.
(e) As used in the preceding two paragraphs of this Section
2.12, the term "transfer" encompasses any sale, pledge, transfer, hypothecation
or other disposition of any Note.
(f) The provisions of clauses (1), (2), (3), (4) and (5) below
shall apply only to Global Notes:
(1) Notwithstanding any other provisions of this
Indenture or the Notes, except as provided in Section
2.12(a)(i), a Global Note shall not be exchanged in whole or
in part for a Note registered in the name of any Person other
than the Depositary or one or more nominees thereof; provided
that a Global Note may be exchanged for Notes registered in
the names of any person designated by the Depositary in the
event that (i) the Depositary has notified the Company that it
is unwilling or unable to continue as Depositary for such
Global Note or such Depositary has ceased to be a "clearing
agency" registered under the Exchange Act, and a successor
Depositary is not appointed by the Company within 90 days or
(ii) an Event of Default has occurred and is continuing with
respect to the Notes. Any Global Note exchanged pursuant to
clause (i) above shall be so exchanged in whole and not in
part, and any Global Note exchanged pursuant to clause (ii)
above may be exchanged in whole or from time to time in part
as directed by the Depositary. Any Note issued in exchange for
a Global Note or any portion thereof shall be a Global Note;
provided that any such Note so issued that is registered in
the name of a Person other than the Depositary or a nominee
thereof shall not be a Global Note.
(2) Notes issued in exchange for a Global Note or any
portion thereof shall be issued in definitive, fully
registered form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global Note
or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as the
Depositary shall designate and shall bear the applicable
legends provided for herein. Any Global Note to be exchanged
in whole shall be surrendered by the Depositary to the
Trustee, as Registrar. With regard to any Global Note to be
exchanged in part, either such Global Note shall be so
surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to
such Global Note, the principal amount thereof shall be
reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment,
the Trustee shall authenticate and deliver the Note issuable
on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(3) Subject to the provisions of clause (5) below,
the registered Holder may grant proxies and otherwise
authorize any Person, including Agent Members (as defined
below) and persons that may hold interests through Agent
Members, to take any action which a holder is entitled to take
under this Indenture or the Notes.
(4) In the event of the occurrence of any of the
events specified in clause (1) above, the Company will
promptly make available to the Trustee a reasonable supply of
Certificated Notes in definitive, fully registered form,
without interest coupons.
(5) Neither any members of, or participants in, the
Depositary (collectively, the "Agent Members") nor any other
Persons on whose behalf Agent Members may act shall have any
rights under this Indenture with respect to any Global Note
registered in the name of the Depositary or any nominee
thereof, or under any such Global Note, and the Depositary or
such nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner and holder of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished
by the Depositary or such nominee, as the case may be, or
impair, as between the Depositary, its Agent Members and any
other person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the
exercise of the rights of a holder of any Note.
SECTION 2.13 CUSIP Numbers. The Company in issuing the Notes
may use "CUSIP" numbers and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; provided that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Notes or as contained in any notice of a redemption and
that reliance may be placed only on the other identification numbers printed on
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
SECTION 2.14 Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest, plus (to the extent lawful) any interest payable on the defaulted
interest, to the Persons who are Holders on a subsequent special record date. A
special record date, as used in this Section 2.14 with respect to the payment of
any defaulted interest, shall mean the 15th day next preceding the date fixed by
the Company for the payment of defaulted interest, whether or not such day is a
Business Day. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder and to the Trustee (or cause the Trustee to
mail to each Holder) a notice that states the subsequent special record date,
the payment date and the amount of defaulted interest to be paid.
SECTION 2.15 Registration Default. The Additional Interest
Amount shall be payable upon the Notes in the case of an Event (as defined in
the Registration Rights Agreement). If an Event occurs, the Company shall
deliver to the Trustee an Officers' Certificate stating (1) the Additional
Interest Amount payable, (2) when such Additional Interest Amount began accruing
and (3) when such Additional Interest Amount is payable. Unless and until a
Responsible Officer of the Trustee receives such an Officer's Certificate, the
Trustee shall assume that no Additional Interest Amount is payable.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Optional Redemption. The Notes are not redeemable
prior to September 9, 2006. On and after September 9, 2006, the Company may, at
its option, redeem the Notes in whole at any time or in part from time to time,
in cash, on any date prior to Stated Maturity, upon notice as set forth in
Section 3.04, at a redemption price equal to 100% of the principal amount (the
"Redemption Price"), plus accrued and unpaid interest, if any, to (but not
including) the Redemption Date, only if the Closing Price of the Common Stock
has exceeded 150% of the Conversion Price then in effect for at least 20 Trading
Days in any consecutive 30-Trading Day period ending on the Trading Day prior to
the date of mailing of the notice of optional redemption pursuant to Section
3.04. However, if a Redemption Date is after a Regular Record Date but on or
prior to the corresponding Interest Payment Date, the accrued and unpaid
interest becoming due on such date shall be payable to the Holders of such
Notes, or one or more predecessor Notes, registered as such on the relevant
Regular Record Date according to their terms, and the Redemption Price shall not
include such interest payment.
SECTION 3.02 Notice of Trustee. If the Company elects to
redeem Notes pursuant to the redemption provisions of Section 3.01 hereof, it
shall notify the Trustee at least 30 days prior but not more than 60 days prior
to the Redemption Date of such intended Redemption Date, the principal amount of
Notes to be redeemed and the CUSIP numbers of the Notes to be redeemed.
SECTION 3.03 Selection of Notes to be Redeemed. If fewer than
all the Notes are to be redeemed, the Trustee shall select the particular Notes
to be redeemed by lot or on a pro rata basis or in accordance with any other
method the Trustee considers fair and appropriate. Notes and portions thereof
that the Trustee selects shall be in principal amounts equal to $1,000 or any
whole multiple thereof.
If any Note selected for partial redemption is converted in
part before termination of the conversion right with respect to the portion of
the Note so selected, the converted portion of such Note shall be deemed (to the
extent it may be) to be the portion selected for redemption (provided, however,
that the Holder of such Note so converted and deemed redeemed shall not be
entitled to any additional interest payment as a result of such deemed
redemption than such Holder would have otherwise been entitled to receive upon
conversion of such Note). Notes that have been converted during a selection of
Notes to be redeemed may be treated by the Trustee as outstanding for the
purpose of such selection.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Notes selected for redemption and, in the case of
any Notes selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Notes shall
relate, in the case of any Notes redeemed or to be redeemed only in part, to the
portion of the principal amount of such Notes which has been or is to be
redeemed.
SECTION 3.04 Notice of Redemption. Notice of redemption shall
be given in the manner provided in Section 13.02 hereof to the Holders of Notes
to be redeemed. Such notice shall be given not less than 30 nor more than 60
days prior to the Redemption Date for redemption pursuant to Section 3.01.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and interest accrued and unpaid to,
but not including, the Redemption Date, if any;
(3) if fewer than all the outstanding Notes are to be
redeemed, the aggregate principal amount of Notes to be redeemed and
the aggregate principal amount of Notes which will be outstanding after
such partial redemption;
(4) that on the Redemption Date the Redemption Price and
interest accrued and unpaid to, but not including, the Redemption Date,
if any, will become due and payable upon each such Note to be redeemed,
and that interest thereon shall cease to accrue on and after such date;
(5) the Conversion Price, the date on which the right to
convert the principal of the Notes to be redeemed will terminate and
the places where such Notes may be surrendered for conversion;
(6) the place or places where such Notes are to be surrendered
for payment of the Redemption Price and accrued and unpaid interest, if
any; and
(7) the CUSIP number of the Notes.
The notice given shall specify the last date on which
exchanges or transfers of Notes may be made pursuant to Section 2.06 hereof, and
shall specify the serial numbers of Notes and the portions thereof called for
redemption.
Notice of redemption of Notes to be redeemed at the election
of the Company shall be given by the Company, or, at the Company's request, by
the Trustee on behalf of the Company and at the Company's expense; provided,
however, that, in all cases, the text of such notice of redemption shall be
prepared by the Company. If the Company so requests that the Trustee deliver
such notice of redemption, the Company shall so inform the Trustee 15 days prior
to the mailing date for such notice of redemption, or such shorter time as
mutually agreed to by the Company and the Trustee. If, however, the Company
gives such notice of redemption to the Holders, the Company shall concurrently
deliver to the Trustee an Officers' Certificate stating that such notice has
been given.
SECTION 3.05 Effect of Notice of Redemption. Notice of
redemption having been given as provided in Section 3.04 hereof, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (except for Notes converted in accordance
with the terms of this Indenture) and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued and
unpaid interest) such Notes shall cease to bear interest. Upon surrender of any
such Note for redemption in accordance with such notice, such Note shall be paid
by the Company at the Redemption Price plus accrued and unpaid interest, if any,
to, but not including, the Redemption Date.
If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid, bear interest from the Redemption Date at the Interest Rate.
SECTION 3.06 Deposit of Redemption Price. Prior to or on any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent an amount of money sufficient to pay the Redemption Price of all the Notes
to be redeemed on that Redemption Date (other than any Notes called for
redemption on that date which have been converted prior to the date of such
deposit), and accrued and unpaid interest, if any, on such Notes to, but not
including, the Redemption Date.
If any Note called for redemption is converted, any money
deposited with the Trustee or with a Paying Agent or so segregated and held in
trust for the redemption of such Note shall (subject to any right of the Holder
of such Note or any predecessor Note to receive interest as provided in Section
4.01 hereof) be paid to the Company on Company Request or, if then held by the
Company, shall be discharged from such trust.
SECTION 3.07 Notes Redeemed in Part. Any Note which is to be
redeemed only in part shall be surrendered at an office or agency of the Company
designated for that purpose pursuant to Section 4.05 hereof (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or the Holder's attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Note without service charge, a new Note or Notes of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Note so surrendered.
SECTION 3.08 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes called for redemption by an agreement with
one or more investment banks or other purchasers to purchase such Notes by
paying to the Trustee in trust for the Holders, on or prior to 11:00 a.m. New
York City time on the Redemption Date, an amount that, together with any amounts
deposited with the Trustee by the Company for the redemption of such Notes, is
not less than the Redemption Price, plus any accrued and unpaid interest payable
on such Redemption Date, of such Notes. Notwithstanding anything to the contrary
contained in this Article 3, the obligation of the Company to pay the Redemption
Price, plus any accrued and unpaid interest payable on such Redemption Date, of
such Notes shall be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers. If such an agreement is entered into, any
Notes not duly surrendered for conversion by the Holders thereof may, at the
option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article 10) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date, subject to payment of the above amount as aforesaid. The
Trustee shall hold and pay to the Holders whose Notes are selected for
redemption any such amount paid to it for purchase and conversion in the same
manner as it would moneys deposited with it by the Company for the redemption of
Notes. Without the Trustee's prior written consent, no arrangement between the
Company and such purchasers for the purchase and conversion of any Notes shall
increase or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Notes between the Company and such
purchasers, including the costs and expenses incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture, except to the extent such loss, liability,
expense or cost results from Trustee's gross negligence or willful misconduct.
SECTION 3.09 Repurchase of Notes at Option of the Holder upon
Change in Control.
(a) If there shall have occurred a Change in Control, all or
any portion of the Notes of any Holder equal to $1,000 or a whole multiple of
$1,000, not previously called for redemption, shall be repurchased by the
Company, at the option of such Holder, at a repurchase price equal to 100% of
the principal amount of the Notes to be repurchased, together with accrued and
unpaid interest, if any, to, but not including, the repurchase date (the "Change
in Control Repurchase Price"), on the date (the "Change in Control Repurchase
Date") that is not later than 45 Business Days after the date the Company
provides notice of a Change in Control in accordance with Section 3.09(c)
hereof, provided, however, that if the Change in Control Repurchase Date is
after a Regular Record Date but on or prior to the corresponding Interest
Payment Date, the accrued and unpaid interest becoming due on such Interest
Payment Date shall be payable to the Holders of such Notes, or one or more
predecessor Notes, registered as such on the relevant Regular Record Date
according to their terms, and the Change in Control Repurchase Price shall not
include such interest payment.
The Change in Control Repurchase Price may be paid for, at the
election of the Company, in cash or shares of Common Stock, subject to the
fulfillment by the Company of the conditions set forth in Section 3.09(b)
hereof. If the Company elects to pay the Change in Control Repurchase Price by
delivering shares of Common Stock in lieu of cash, the number of shares of
Common Stock to be issued shall be equal to (i) the Change in Control Repurchase
Price divided by (ii) 95% of the average of the Closing Price of one share of
Common Stock for the ten consecutive Trading Days immediately preceding and
including the third Trading Day prior to the Change in Control Repurchase Date.
The Company shall designate, in the notice of the Change in Control provided to
Holders pursuant to Section 3.09(c) hereof whether the Company will repurchase
the Notes for cash or shares of Common Stock; provided, however, that the
Company will pay cash for fractional interest in a share of Common Stock. For
purposes of determining the existence of potential fractional interests, all
Notes subject to repurchase by the Company held by a Holder shall be considered
together (no matter how many separate certificates are to be presented). The
Company may not change its election with respect to the consideration to be paid
once the Company has given the notice of Change in Control to Holders pursuant
to Section 3.09(c) hereof, except in the event of a failure to satisfy, prior to
5:00 p.m., New York City time, on the Business Day immediately preceding the
Change in Control Repurchase Date, any condition to the payment of the Change in
Control Repurchase Price in whole or in part, in shares of Common Stock.
A "Change in Control" of the Company shall be deemed to have
occurred at such time after the original issuance of Notes as any of the
following events shall occur:
(i) the acquisition by any person, including any syndicate or
group deemed to be a "person" under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), of beneficial
ownership, directly or indirectly, through a purchase, merger (except a
merger by the Company described in Section 3.09(a)(ii)) or other
acquisition transaction or series of transactions, of shares of the
Capital Stock of the Company entitling that person to exercise 50% or
more of the total voting power of all shares of such Capital Stock
entitled to vote generally in elections of directors, other than any
acquisition by the Company, any of its Subsidiaries or any employee
benefit plans of the Company; or
(ii) any consolidation or merger of the Company with or into
any other person, any merger of another person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company's properties and assets to another
person, other than:
(A) any transaction (1) that does not result
in any reclassification, conversion, exchange or
cancellation of outstanding shares of the Capital
Stock of the Company and (2) pursuant to which
holders of the Capital Stock of the Company
immediately prior to the transaction are entitled to
exercise, directly or indirectly, 50% or more of the
total voting power of all shares of the Capital Stock
of the Company entitled to vote generally in the
election of directors of the continuing or surviving
person immediately after the transaction;
(B) any merger, share exchange, transfer of
assets or similar transaction solely for the purpose
of changing the Company's jurisdiction of
incorporation and resulting in a reclassification,
conversion or exchange of outstanding shares of
Common Stock solely into shares of Common Stock of
the surviving entity; or
(C) all of the consideration for the Common
Stock (excluding cash payments for fractional shares
and cash payments made in respect of dissenters'
appraisal rights) in the transaction or transactions
constituting the Change in Control consists of common
stock traded on a United States National Securities
Exchange or quoted on the Nasdaq National Market, or
which will be so traded or quoted when issued or
exchanged in connection with the Change in Control,
and as a result of such transaction or transactions
the Notes become convertible solely into such common
stock, or
(iii) during any consecutive two-year period, individuals who
at the beginning of that two-year period constituted the Board of
Directors (together with any new directors whose election to the Board
of Directors, or whose nomination for election by the shareholders of
the Company, was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such
period or whose election or nomination for election were previously so
approved) cease for any reason to constitute a majority of the Board of
Directors then in office;
provided, however, that no Change in Control shall be deemed to have occurred if
the Closing Price of one share of Common Stock for any five Trading Days within
the 10 consecutive Trading Day period ending immediately after the later of the
Change in Control and the public announcement of the Change in Control (in the
case of a Change in Control under clause (i) or (iii) above) or ending
immediately before the Change in Control (in the case of a Change in Control
under clause (ii) above) shall equal or exceed 105% of the Conversion Price in
effect on each of those five Trading Days.
Beneficial ownership shall be determined in accordance with Rule 13d-3
promulgated by the SEC under the Exchange Act. The term "person" shall include
any syndicate or group that would be deemed to be a "person" under Section
13(d)(3) of the Exchange Act.
(b) The following are conditions to the Company's election to
pay the Change in Control Repurchase Price in Common Stock:
(i) The shares of Common Stock to be issued upon repurchase of
Notes hereunder:
(A) shall not require registration under any federal
securities law before such shares may be freely transferable
without being subject to any transfer restrictions under the
Securities Act upon repurchase or, if such registration is
required, such registration shall be completed and shall
become effective prior to the Change in Control Repurchase
Date; and
(B) shall not require registration with, or approval
of, any governmental authority under any state law or any
other federal law before shares may be validly issued or
delivered upon repurchase or if such registration is required
or such approval must be obtained, such registration shall be
completed or such approval shall be obtained prior to the
Change in Control Repurchase Date.
(ii) The shares of Common Stock to be issued upon repurchase
of Notes hereunder are, or shall have been, approved for listing on the
Nasdaq National Market or the New York Stock Exchange or listed on
another national securities exchange as the shares of Common Stock are
then listed, in any case, prior to the Change in Control Repurchase
Date.
(iii) The shares of Common Stock to be issued upon repurchase
of Notes will be issued out of the Company's authorized but unissued
Common Stock and will, upon issuance, be duly and validly issued and
fully paid and nonassessable and free of any preemptive or similar
rights.
(iv) If any of the conditions set forth in clauses (i) through
(iii) of this Section 3.09(b) are not satisfied in accordance with the
terms thereof, the Change in Control Repurchase Price shall be paid by
the Company only in cash.
(c) Unless the Company shall have theretofore called for
redemption all of the outstanding Notes, prior to or on the 30th day
after the occurrence of a Change in Control, the Company, or, at the
written request and expense of the Company prior to or on the 30th day
after such occurrence, the Trustee, shall give to all Holders, in the
manner provided in Section 13.02 hereof, notice of the occurrence of
the Change in Control and of the repurchase right set forth herein
arising as a result thereof. The Company shall also deliver a copy of
such notice of a repurchase right to the Trustee. The notice shall
include a form of Change in Control Repurchase Notice (as defined in
Section 3.09(d)) to be completed by the Holder and shall state:
(1) briefly, the events causing a Change in Control and the
date of such Change in Control;
(2) the date by which the Change in Control Repurchase Notice
pursuant to this Section 3.09 must be given;
(3) the Change in Control Repurchase Date;
(4) the Change in Control Repurchase Price;
(5) the name and address of the Paying Agent and the
Conversion Agent;
(6) that Notes as to which a Change in Control Repurchase
Notice has been given may be converted pursuant to Article 10 hereof
only if the Change in Control Repurchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(7) that Notes must be surrendered to the Paying Agent to
collect payment;
(8) that the Change in Control Repurchase Price for any Note
as to which a Change in Control Repurchase Notice has been duly given
and not withdrawn will be paid promptly following the later of the
Change in Control Repurchase Date and the time of surrender of such
Note as described in (7) above;
(9) briefly, the procedures the Holder must follow to exercise
rights under this Section 3.09;
(10) briefly, the conversion rights of the Notes, including
the Conversion Price;
(11) the procedures for withdrawing a Change in Control
Repurchase Notice;
(12) that, unless the Company defaults in making payment of
such Change in Control Repurchase Price, interest on Notes called for
redemption will cease to accrue on and after the Change in Control
Repurchase Date;
(13) the CUSIP number of the Notes; and
(14) whether the Change in Control Repurchase Price shall be
paid by the Company in cash or by delivery of shares of Common Stock.
(d) A Holder may exercise its rights specified in Section
3.09(a) hereof upon delivery of a written notice of purchase (a "Change in
Control Repurchase Notice") to the Paying Agent prior to the Change in Control
Repurchase Date, stating:
(1) the certificate number of the Note, if any, which the
Holder will deliver to be purchased or the appropriate Depositary
procedures if the Notes are not in certificated form;
(2) the portion of the principal amount of the Note which the
Holder will deliver to be purchased, which portion must be $1,000 or
any whole multiple thereof; and
(3) that such Note shall be purchased pursuant to the terms
and conditions specified in paragraph 6 on the reverse side of the
Notes and in this Indenture.
The delivery of such Note to the Paying Agent prior to the
Change in Control Repurchase Date (together with all necessary endorsements) at
the offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Change in Control Repurchase Price therefor; provided, however,
that such Change in Control Repurchase Price shall be so paid pursuant to this
Section 3.09 only if the Note so delivered to the Paying Agent shall conform in
all respects to the description thereof set forth in the related Change in
Control Repurchase Notice.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.09, a portion of a Note so delivered for repurchase if the
principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a Note also
apply to the purchase of such portion of such Note.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.09 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Change in Control Repurchase Date and the time of delivery of the Note to the
Paying Agent in accordance with this Section 3.09.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change in Control Repurchase Notice
contemplated by this Section 3.09(d) shall have the right to withdraw such
Change in Control Repurchase Notice at any time prior to the close of business
on the Change in Control Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Repurchase Notice or written withdrawal
thereof.
SECTION 3.10 Effect of Change in Control Repurchase Notice. Upon receipt by the
Paying Agent of the Change in Control Repurchase Notice specified in Section
3.09(d), the Holder of the Note in respect of which such Change in Control
Repurchase Notice was given shall (unless such Change in Control Repurchase
Notice is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Change in Control Repurchase Price with respect
to such Note. Such Change in Control Repurchase Price shall be paid to such
Holder, subject to receipt of consideration for the Notes by the Paying Agent,
promptly following the later of (x) the Change in Control Repurchase Date with
respect to such Note (provided the conditions in Section 3.09(d) have been
satisfied) and (y) the time of delivery of such Note to the Paying Agent by the
Holder thereof in the manner required by Section 3.09(d). Notes in respect of
which a Change in Control Repurchase Notice has been given by the Holder thereof
may not be converted pursuant to Article 10 hereof on or after the date of the
delivery of such Change in Control Repurchase Notice unless such Change in
Control Repurchase Notice has first been validly withdrawn as specified in the
following two paragraphs.
A Change in Control Repurchase Notice may be withdrawn by
means of a written notice of withdrawal delivered to the office of the Paying
Agent in accordance with the Change in Control Repurchase Notice at any time
prior to the close of business on the Business Day immediately preceding the
Change in Control Repurchase Date specifying:
(1) the certificate number of the Note in respect of which
such notice of withdrawal is being submitted or, if not in certificated
form, the applicable Depositary procedures,
(2) the principal amount of the Note with respect to which
such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Note which remains
subject to the original Change in Control Repurchase Notice and which
has been or will be delivered for purchase by the Company.
There shall be no repurchase of any Notes pursuant to Section
3.09 if there has occurred (prior to, on or after, as the case may be, the
giving, by the Holders of such Notes, of the required Change in Control
Repurchase Notice) and is continuing an Event of Default (other than a default
in the payment of the Change in Control Repurchase Price with respect to such
Notes). The Paying Agent will promptly return to the respective Holders thereof
any Notes (x) with respect to which a Change in Control Repurchase Notice has
been withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Change in Control Repurchase Price with respect to such Notes) in which case,
upon such return, the Change in Control Repurchase Notice with respect thereto
shall be deemed to have been withdrawn.
SECTION 3.11 Deposit of Change in Control Repurchase Price.
Prior to 11:00 a.m. (New York City time) on the Change in Control Repurchase
Date the Company shall deposit with the Trustee or with the Paying Agent (or, if
the Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an
amount of money (in immediately available funds if deposited on such Business
Day) or Common Stock sufficient to pay the aggregate Change in Control
Repurchase Price of all the Notes or portions thereof which are to be purchased
as of the Change in Control Repurchase Date.
SECTION 3.12 Notes Purchased in Part. Any Note which is to be
purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Note, without service charge, a
new Note or Notes, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to, and in exchange for, the portion of the
principal amount of the Note so surrendered which is not purchased.
SECTION 3.13 Covenant to Comply with Securities Laws upon
Purchase of Notes. In connection with any offer to purchase or repurchase of
Notes under Section 3.09 hereof (provided that such offer or purchase
constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as
used herein, includes any successor provision thereto) under the Exchange Act at
the time of such offer or purchase), the Company shall (i) comply with Rule
13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act which
may then be applicable, (ii) file the related Schedule TO (or any successor
schedule, form or report) or any other schedule required under the Exchange Act,
and (iii) otherwise comply with all federal and state securities laws so as to
permit the rights and obligations under Section 3.09 to be exercised in the time
and in the manner specified in Section 3.09.
SECTION 3.14 Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company any cash or shares of Common Stock that
remain unclaimed as provided in paragraph 10 of the Notes, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change in Control Repurchase Price; provided, however, that to the extent that
the aggregate amount of cash or shares of Common Stock deposited by the Company
pursuant to Section 3.11 exceeds the aggregate Change in Control Repurchase
Price of the Notes or portions thereof which the Company is obligated to
purchase as of the Change in Control Repurchase Date then promptly after the
Business Day following the Change in Control Repurchase Date the Trustee shall
return any such excess to the Company together with interest or dividends, if
any, thereon.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Principal, Premium, Interest on the
Notes. The Company will duly and punctually pay the principal of and premium, if
any, and interest at the Interest Rate in respect of the Notes in accordance
with the terms of the Notes and this Indenture. The Company will deposit or
cause to be deposited with the Trustee as directed by the Trustee, no later than
11:00 a.m., New York time on the day of the Stated Maturity of any Note or on
any Interest Payment Date, all payments so due on such date. Principal amount,
Redemption Price, Change in Control Repurchase Price, and cash interest shall be
considered paid on the applicable date due if at 11:00 a.m., New York time on
such date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money or securities, if permitted hereunder, sufficient to pay all
such amounts then due.
The Company shall, to the extent permitted by law, pay cash
interest on overdue amounts at the rate per annum set forth in paragraph 1 on
the reverse side of the Notes, compounded semiannually, which interest shall
accrue from the date such overdue amount was originally due to the date payment
of such amount, including interest thereon, has been made or duly provided for.
All such overdue interest shall be payable on demand.
SECTION 4.02 SEC and Other Reports. The Company shall file
with the Trustee, within 15 days after it files such annual and quarterly
reports, information, documents and other reports with the SEC, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. If at any time the Company is not
subject to Section 13 or 15(d) of the Exchange Act, such reports shall be
provided at the times the Company would have been required to provide reports
had it continued to have been subject to such reporting requirements. The
Company also shall comply with the other provisions of TIA Section 314(a).
SECTION 4.03 Compliance Certificate. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on June 30, 2004) an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 4.04 Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05 Maintenance of Office or Agency. The Company will
maintain in The Borough of Manhattan, the City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Notes may be
presented or surrendered for payment, where Notes may be surrendered for
registration of transfer, exchange, purchase, redemption or conversion and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The New York branch office of the Corporate Trust
Office of the Trustee, shall initially be such office or agency for all of the
aforesaid purposes. The Corporate Trust Office of the Trustee shall provide
appropriate contact information therefor upon request. The Company shall give
prompt written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of
the office of the Trustee). 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 and demands may be made
or served at the address of the Trustee set forth in Section 13.02.
The Company may also from time to time designate one or more
other offices or agencies where the Notes 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 the
Borough of Manhattan, the City of New York, for such purposes.
SECTION 4.06 Delivery of Certain Information. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a holder or any beneficial holder of Notes or shares of Common Stock
issued upon conversion thereof, the Company will promptly furnish or cause to be
furnished Rule 144A Information (as defined below) to such Holder or any
beneficial holder of Notes or holder of shares of Common Stock issued upon
conversion of Notes, or to a prospective purchaser of any such security
designated by any such holder, as the case may be, to the extent required to
permit compliance by such Holder or holder with Rule 144A under the Securities
Act in connection with the resale of any such security. "Rule 144A Information"
shall be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets. The
Company shall not consolidate with, merge with or into any other person or
convey, transfer or lease its properties and assets substantially as an entirety
to any person, unless:
(a) either (1) the Company shall be the continuing corporation
or (2) the person (if other than the Company) formed by such consolidation or
into which the Company is merged or the person which acquires by conveyance,
transfer or lease the properties and assets of the Company substantially as an
entirety is a corporation, limited liability company, partnership or trust that
(i) shall be organized and validly existing under the laws of the United States
or any State of the United States and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all of the obligations of the Company
under the Notes and this Indenture;
(b) at the time of such transaction, no Event of Default and
no event which, after notice or lapse of time, would become an Event of Default,
shall have happened and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, comply with this Article 5
and that all conditions precedent herein provided for relating to such
transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if such
assets were owned by the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
The successor person formed by such consolidation or into
which the Company is merged or the successor person 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 and obligations the Company may have
under a supplemental indenture pursuant to Section 10.11, the Company shall be
discharged from all obligations and covenants under this Indenture and the
Notes. Subject to Section 9.06, the Company, the Trustee and the successor
person shall enter into a supplemental indenture to evidence the succession and
substitution of such successor person and such discharge and release of the
Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. An "Event of Default" occurs
if:
(1) the Company fails to pay when due the principal of or
premium, if any, on any of the Notes at Stated Maturity, upon
redemption or exercise of a repurchase right or otherwise, whether or
not such payment is prohibited by Article 11 of this Indenture;
(2) the Company fails to pay an installment of interest (or
Additional Interest Amounts, if any) on any of the Notes that continues
for 30 days after the date when due, whether or not such payment is
prohibited by Article 11 of this Indenture; provided that a failure to
make any of the first six scheduled interest payments on the Notes on
the applicable Interest Payment Dates will constitute an Event of
Default with no grace period or cure period;
(3) the Company fails to deliver shares of Common Stock,
together with cash in lieu of fractional shares, when such shares of
Common Stock or cash in lieu of fractional shares is required to be
delivered upon conversion of a Note and such failure continues for 10
days after written notice of default is given to the Company by the
Trustee or to the Company and the Trustee by the Holder of such Note;
(4) the Company fails to perform or observe any other term,
covenant or agreement contained in the Notes or this Indenture for a
period of 60 days after receipt by the Company of a Notice of Default
(as defined in this Section 6.01);
(5) (A) one or more defaults in the payment of principal of or
premium, if any, on any of the Company's Indebtedness for borrowed
money aggregating $10.0 million or more, when the same becomes due and
payable at the scheduled maturity thereof, and such default or defaults
shall have continued after any applicable grace period and shall not
have been cured or waived within a 30-day period after the date of a
Notice of Default or (B) any of the Company's Indebtedness for borrowed
money aggregating $10.0 million or more shall have been accelerated or
otherwise declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required prepayment)
prior to the scheduled maturity thereof and such acceleration is not
rescinded or annulled within a 30-day period after the date of a Notice
of Default;
(6) the Company or any Significant Subsidiary pursuant to or
under or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding or the
commencement of any case against it;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) files a petition in bankruptcy or answer or
consent seeking reorganization or relief; or
(F) consents to the filing of such a petition or the
appointment of or taking possession by a Custodian;
(7) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case or proceeding,
or adjudicates the Company or any Significant Subsidiary
insolvent or bankrupt;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its or
their properties; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 days;
(8) the Pledge Agreement shall cease to be in full force and
effect or enforceable prior to the expiration in accordance with its
terms.
A Default under clause (4) or (5) above is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25%
in aggregate principal amount of the Notes at the time outstanding notify the
Company and the Trustee, of the Default and the Company does not cure such
Default (and such Default is not waived) within the time specified in clause (4)
or (5) above after actual receipt of such notice. Any such notice must be in
writing, specify the Default, demand that it be remedied and state that such
notice is a "Notice of Default".
The Company will deliver to the Trustee, within five Business
Days of becoming aware of the occurrence of an Event of Default, written notice
thereof. In addition, the Company shall deliver to the Trustee, within 30 days
after it becomes aware of the occurrence thereof, written notice of any event
which with the lapse of time would become an Event of Default under clause (4)
or (5) above, its status and what action the Company is taking or proposes to
take with respect thereto.
SECTION 6.02 Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(6) or (7)) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in aggregate principal amount of the Notes at the time outstanding by written
notice to the Company and the Trustee, may declare the Notes due and payable at
their principal amount together with accrued and unpaid interest. Upon a
declaration of acceleration, such principal and accrued and unpaid interest to
the date of payment shall be immediately due and payable.
If an Event of Default specified in Section 6.01(6) or (7)
above occurs and is continuing, then the principal and the interest on all the
Notes shall become and be immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders.
The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding, by notice to the Trustee (and without notice to
any other Holder) may rescind or annul an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived, except nonpayment of the
principal and any accrued and unpaid cash interest that have become due solely
as a result of acceleration, and if all amounts due to the Trustee under Section
7.07 have been paid. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.03 Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of the principal, the premium, if any, and any accrued cash interest on
the Notes or to enforce the performance of any provision of the Notes or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does
not possess any of the Notes or produce any of the Notes in the proceeding. A
delay or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of, or acquiescence in, the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the Notes at the time outstanding, by
notice to the Trustee (and without notice to any other Holder), may waive an
existing Default and its consequences except (1) an Event of Default described
in Section 6.01(1) or (2), (2) a Default in respect of a provision that under
Section 9.02 cannot be amended without the consent of each Holder affected or
(3) a Default which constitutes a failure to convert any Note in accordance with
the terms of Article 10. When a Default is waived, it is deemed cured, but no
such waiver shall extend to any subsequent or other Default or impair any
consequent right. This Section 6.04 shall be in lieu of Section 316(a)1(B) of
the TIA and such Section 316(a)1(B) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION 6.05 Control by Majority. The Holders of a majority in
aggregate principal amount of the Notes at the time outstanding may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability unless the Trustee is offered indemnity reasonably
satisfactory to it against loss, liability or expense. This Section 6.05 shall
be in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is
hereby expressly excluded from this Indenture, as permitted by the TIA.
SECTION 6.06 Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount
of the Notes at the time outstanding make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of such notice, request and offer of security or
indemnity; and
(5) the Holders of a majority in aggregate principal amount of
the Notes at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of
any other Holder or to obtain a preference or priority over any other Holder.
SECTION 6.07 Rights of Holders to Receive Payment and to
Convert. Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the principal amount, premium, if any, Redemption
Price, Change in Control Repurchase Price or any accrued and unpaid cash
interest in respect of the Notes held by such Holder, on or after the respective
due dates expressed in the Notes, and to convert the Notes in accordance with
Article 10, or to bring suit for the enforcement of any such payment on or after
such respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee. If an Event of
Default described in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the Notes and the
amounts provided for in Section 7.07.
SECTION 6.09 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal amount, Redemption Price, Change in
Control Repurchase Price or any accrued and unpaid cash interest in respect of
the Notes 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 any such amount) shall be entitled and
empowered, by intervention in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
principal amount, Redemption Price, Change in Control Repurchase Price or any
accrued and unpaid cash interest 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 or any other amounts due the
Trustee under Section 7.07) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Notes 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 6.10 Priorities. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:
(1) to the Trustee for amounts due under Section 7.07;
(2) to Holders for amounts due and unpaid on the Notes for the
principal amount, Redemption Price, Change in Control Repurchase Price
or any accrued and unpaid cash interest (including, Additional Interest
Amounts, if any) as the case may be, ratably, without preference or
priority of any kind, according to such amounts due and payable on the
Notes; and
(3) the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Holder and the Company a notice that
states the record date, the payment date and the amount to be paid.
SECTION 6.11 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the Trustee)
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate
principal amount of the Notes at the time outstanding. This Section 6.11 shall
be in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby
expressly excluded from this Indenture, as permitted by the TIA.
SECTION 6.12 Waiver of Stay, Extension or Usury 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 or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount,
Redemption Price, Change in Control Repurchase Price or any accrued and unpaid
cash interest in respect of Notes, or any interest on such amounts, as
contemplated herein, or 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 benefit 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 7
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, but in case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section
7.01.
(e) The Trustee may refuse to perform any duty or exercise any
right or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
SECTION 7.02 Rights of Trustee. Subject to its duties and
responsibilities under the provisions of Section 7.01, and, except as expressly
excluded from this Indenture pursuant to said Section 7.01, subject also to its
duties and responsibilities under the TIA:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness 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) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate;
(c) 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;
(d) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith which it believes to be
authorized or within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and
any advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
resolution of the Board of Directors;
(h) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default is received by a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Notes and
this Indenture;
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder; and
(k) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee. Any Paying Agent, Registrar, Conversion Agent
or co-registrar may do the same with like rights. However, the Trustee must
comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture, the Notes or
the Pledged Securities, it shall not be accountable for the Company's use or
application of the proceeds from the Notes, it shall not be responsible for any
statement in the registration statement for the Notes under the Securities Act
or in the Indenture or the Notes (other than its certificate of authentication),
or the determination as to which beneficial owners are entitled to receive any
notices hereunder.
SECTION 7.05 Notice of Defaults. If a Default occurs and if it
is known to a Responsible Officer of the Trustee, the Trustee shall give to each
Holder notice of the Default within 90 days after the occurrence thereof or, if
later, within 20 days after its is known to the Trustee, unless such Default
shall have been cured or waived before the giving of such notice. Except in the
case of a Default described in Section 6.01(1) or (2), the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the best interest of Holders.
The second sentence of this Section 7.05 shall be in lieu of the proviso to
Section 315(b) of the TIA and such proviso is hereby expressly excluded from
this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have
knowledge of a Default unless a Responsible Officer of the Trustee has received
written notice of such Default.
SECTION 7.06 Reports by Trustee to Holders. Within 60 days
after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Holder a brief report dated as of such
May 15 that complies with TIA Section 313(a), if required by such Section
313(a). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Holders
shall be filed with the SEC and each securities exchange, if any, on which the
Notes are listed. The Company agrees to promptly notify the Trustee whenever the
Notes become listed on any securities exchange and of any delisting thereof.
SECTION 7.07 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not
be limited (to the extent permitted by law) by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) 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, advances 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
(c) to indemnify the Trustee or any predecessor Trustee and
their agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including reasonable attorney's fees and expenses
and taxes (other than taxes based upon, measured by or determined by reference
to the income of the Trustee)) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the reasonable costs and expenses of defending itself
against any claim (whether asserted by the Company or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
To secure the Company's payment obligations in this Section
7.07, the Holders shall have been deemed to have granted to the Trustee a lien
prior to the Notes on all money or property held or collected by the Trustee,
except for the Pledged Securities and money and property held in trust to pay
the principal amount, Redemption Price, Change in Control Repurchase Price, or
cash interest, if any, as the case may be, on particular Notes.
The Company's payment obligations pursuant to this Section
7.07 shall survive the discharge of this Indenture and the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in Section 6.01(6) or (7), the expenses, including the
reasonable charges and expenses of its counsel, are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee. The Trustee may resign by
so notifying the Company; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.08. The Holders of a majority in aggregate principal amount of
the Notes at the time outstanding may remove the Trustee by so notifying the
Trustee and the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section
7.07.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in aggregate principal amount of the Notes
at the time outstanding may petition any court of competent jurisdiction at the
expense of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.09 Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The
Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. Nothing herein contained shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate
paragraph of TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Notes. When all
outstanding Notes will become due and payable within one year of their Stated
Maturity and the Company has deposited with the Trustee cash sufficient to pay
and discharge all outstanding Notes on the date of their Stated Maturity, then
the Company may discharge its obligations under this Indenture while Notes
remain outstanding; provided that provisions of Section 2.03, Section 2.04,
Section 2.05, Section 2.06, Section 2.07, Section 2.12, Section 4.01, Section
4.05, Section 7.07, Article 10 and this Article 8 shall survive until the Notes
have been paid in full. The Trustee shall join in the execution of a document
prepared by the Company acknowledging satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
Opinion of Counsel and at the cost and expense of the Company.
SECTION 8.02 Repayment of the Company. The Trustee and the
Paying Agent shall promptly return to the Company upon written request (i) any
excess money held by them at any time and (ii) any money or securities held by
them for the payment of any amount with respect to the Notes that remains
unclaimed for two years, subject to applicable unclaimed property law. After
return to the Company, Holders entitled to the money or securities must look to
the Company for payment as general creditors unless an applicable abandoned
property law designates another person and the Trustee and the Paying Agent
shall have no further liability to the Holders with respect to such money or
securities for that period commencing after the return thereof.
SECTION 8.03 Deposited Monies to Be Held in Trust by Trustee.
Subject to Section 8.02, all monies deposited with the Trustee pursuant to
Section 8.01 shall be held in trust for the sole benefit of the Holders and such
monies shall be applied by the Trustee to the payment, either directly or
through any Paying Agent (including the Company if acting as its own Paying
Agent), to the Holders for the payment of which such monies have been deposited
with the Trustee, of all sums due and to become due thereon for principal and
interest and premium, if any.
SECTION 8.04 Reinstatement. If the Trustee or the Paying Agent
is unable to apply any money in accordance with Sections 8.01 and 8.03 by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.01 until such time as the Trustee or
the Paying Agent is permitted to apply all such money in accordance with
Sections 8.01 and 8.03; provided, however, that if the Company makes any payment
of interest on or principal of any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders to
receive such payment from the money held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Notes without the consent of any Holder
for the purposes of, among other things:
(1) adding to the Company's covenants for the benefit of the
Holders;
(2) surrendering any right or power conferred upon the
Company;
(3) providing for conversion rights of Holders if any
reclassification or change of Common Stock or any consolidation, merger
or sale of all or substantially all of the Company's assets occurs;
(4) reducing the Conversion Price; provided that the reduction
will not adversely affect the interests of Holders in any material
respect;
(5) complying with the requirements of the SEC in order to
effect or maintain the qualification of this Indenture under the TIA;
(6) making any changes or modifications to this Indenture
necessary in connection with the registration of the Notes under the
Securities Act as contemplated by the Registration Rights Agreement;
provided that this action does not adversely affect the interests of
the Holders in any material respect;
(7) curing any ambiguity, omission, inconsistency or
correcting or supplementing any defective provision contained in this
Indenture; provided that such modification or amendment does not
adversely affect the interests of the Holders in any material respect;
or
(8) adding or modifying any other provisions which the Company
and the Trustee may deem necessary or desirable and which will not
adversely affect the interests of the Holders in any material respect;
(9) complying with Article 5; or
(10) providing for uncertificated Notes in addition to the
Certificated Notes so long as such uncertificated Notes are in
registered form for purposes of the Internal Revenue Code of 1986, as
amended.
SECTION 9.02 With Consent of Holders. With the written consent
of the Holders of not less than a majority in aggregate principal amount of the
Notes at the time outstanding or by the adoption of a resolution at a meeting of
Holders at which a quorum is present by at least a majority in aggregate
principal amount of the Notes represented at the meeting, the Company may modify
and amend this Indenture or the Notes and waive noncompliance by the Company.
However, without the consent of each Holder affected, a modification, amendment
or waiver to this Indenture or the Notes may not:
(1) change the maturity of the principal of or any installment
of interest on any Note or any payment of Additional Interest Amounts;
(2) reduce the principal amount of, or premium, if any, or
interest on or any payment of Additional Interest Amounts on, any Note;
(3) change the currency of payment of principal of, premium,
if any, or interest of any Note;
(4) impair the right to institute suit for the enforcement of
any payment on or with respect to, or conversion of, any Note;
(5) except as otherwise permitted or contemplated by
provisions of this Indenture concerning corporate reorganizations,
materially adversely affect the repurchase option of Holders upon a
Change in Control or the conversion rights of Holders;
(6) modify the provisions of this Indenture or the Pledge
Agreement relating to the pledge of securities as contemplated in
Article 12 in a manner adverse to the Holders in any material respect;
(7) modify the subordination provisions of the Notes in a
manner adverse to the Holders in any material respect; or
(8) reduce the percentage in aggregate principal amount of
Notes outstanding necessary to modify or amend this Indenture or to
waive any past default.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective,
the Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03 Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall comply with the
TIA.
SECTION 9.04 Revocation and Effect of Consents, Waivers and
Actions. Until an amendment, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Note hereunder is a continuing
consent by the Holder and every subsequent Holder of that Note or portion of the
Note that evidences the same obligation as the consenting Holder's Note, even if
notation of the consent, waiver or action is not made on the Note. However, any
such Holder or subsequent Holder may revoke the consent, waiver or action as to
such Holder's Note or portion of the Note if the Trustee receives the notice of
revocation before the date the amendment, waiver or action becomes effective.
After an amendment, waiver or action becomes effective, it shall bind every
Holder.
SECTION 9.05 Notation on or Exchange of Notes. Notes
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 Notes so modified
as to conform, in the opinion of the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding Notes.
SECTION 9.06 Trustee to Sign Supplemental Indentures. The
Trustee shall sign any supplemental indenture authorized pursuant to this
Article 9 if the amendment contained therein does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall be entitled to receive, and (subject to
the provisions of Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment is
authorized or permitted by this Indenture.
SECTION 9.07 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 Notes theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE 10
CONVERSION
SECTION 10.01 Conversion Right and Conversion Price. (a)
Subject to and upon compliance with the provisions of this Article, at the
option of the Holder thereof, any Note or any portion of the principal amount
thereof which is $1,000 or a whole multiple of $1,000 may be converted at the
principal amount thereof, or of such portion thereof, into duly authorized,
fully paid and nonassessable shares of Common Stock, at the Conversion Price,
determined as hereinafter provided, in effect at the time of conversion. Subject
to Section 10.01(b), such conversion right shall expire at the close of business
on the Business Day prior to the Stated Maturity of the Notes.
(b) In case a Note or portion thereof is called for
redemption, such conversion right in respect of the Note or the portion so
called, shall expire at the close of business on the Business Day preceding the
Redemption Date, unless the Company defaults in making the payment due, in which
case, such conversion right shall not terminate. A Note in respect of which a
Holder is exercising its option to require repurchase upon a Change in Control
pursuant to Section 3.09 may be converted only if such Holder withdraws its
Change in Control Repurchase Notice in accordance with Section 3.10, unless the
Company shall default in paying the Change in Control Repurchase Price when due,
in which case the Holder shall have a conversion right that shall terminate at
the close of business on the date such default is cured and such Note is
repurchased.
(c) The price at which shares of Common Stock shall be
delivered upon conversion (the "Conversion Price") shall be initially equal to
$6.132 per share of Common Stock (which is equal to a conversion rate of
163.0789 shares per $1,000 principal amount of Notes). The Conversion Price
shall be adjusted in certain instances as provided in Sections 10.04 and 10.12
hereof.
SECTION 10.02 Exercise of Conversion Right. To exercise the
conversion right, the Holder of any Note to be converted shall in the case of
Global Notes, comply with the procedures of the Depositary in effect at that
time, and, in the case of Certificated Notes, surrender such Note duly endorsed
or assigned to the Company or in blank, at the office of any Conversion Agent,
accompanied by a duly signed conversion notice substantially in the form
attached to the Note to the Company stating that the Holder elects to convert
such Note or, if less than the entire principal amount thereof is to be
converted, the portion thereof to be converted.
Notes surrendered for conversion during the period from the
close of business on any Regular Record Date to the opening of business on the
next succeeding Interest Payment Date shall be accompanied by payment in New
York Clearing House funds or other funds acceptable to the Company of an amount
equal to the interest to be received on such Interest Payment Date on the
principal amount of Notes being surrendered for conversion, unless the Company
exercises its right to redeem such Notes during such period in accordance with
Article 3.
Notes shall be deemed to have been converted immediately prior
to the close of business on the day of surrender of such Notes for conversion in
accordance with the foregoing provisions (the "Conversion Date"), and at such
time the rights of the Holders of such Notes as Holders shall cease (and all
obligations of the Company with respect thereto shall be deemed satisfied,
including with respect to the principal amount and any accrued and unpaid
interest), and the Person or Persons entitled to receive the Common Stock
issuable upon conversion shall be treated for all purposes as the record holder
or holders of such Common Stock at such time. As promptly as practicable on or
after the Conversion Date, the Company shall cause to be issued and delivered to
such Conversion Agent a certificate or certificates for or, if applicable, other
book-entry confirmation representing the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fraction of a
share as provided in Section 10.03 hereof.
Except as specifically provided herein, no cash payment or
other adjustment will be made on conversion of any Notes for interest accrued
thereon or for dividends on any Common Stock. Accrued and unpaid interest will
be deemed paid in full rather than canceled, extinguished or forfeited.
In the case of any Certificated Note which is converted in
part only, upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
new Note or Notes of authorized denominations in an aggregate principal amount
equal to the unconverted portion of the principal amount of such Notes.
If shares of Common Stock to be issued upon conversion of a
Restricted Note or portion thereof are to be registered in a name other than
that of the Holder of such Restricted Note, such Holder must deliver to the
Conversion Agent a certificate in substantially the form set forth in the form
of Note set forth in Exhibit B-1 annexed hereto, dated the date of surrender of
such Restricted Note and signed by such Holder, as to compliance with the
restrictions on transfer applicable to such Restricted Note. Neither the Trustee
nor any Conversion Agent, Registrar or Transfer Agent shall be required to
register in a name other than that of the Holder shares of Common Stock or Notes
issued upon conversion of any such Restricted Note not so accompanied by a
properly completed certificate.
SECTION 10.03 Fractions of Shares. No fractional shares of
Common Stock shall be issued upon conversion of any Note or Notes. If more than
one Note shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issued upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Notes (or
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock which would otherwise be issued upon conversion of any Note or
Notes (or specified portions thereof), the Company shall pay a cash adjustment
in respect of such fraction (calculated to the nearest one-100th of a share) in
an amount equal to the same fraction of the Closing Price per Share of the
Common Stock as of the Trading Day preceding the Conversion Date.
SECTION 10.04 Adjustment of Conversion Price. The Conversion
Price shall be subject to adjustments, calculated by the Company, from time to
time as follows:
(a) In case the Company shall hereafter pay a dividend or make
a distribution to all holders of the outstanding Common Stock in shares of
Common Stock, the Conversion Price in effect at the opening of business on the
date following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction:
(1) the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date
fixed for such determination, and
(2) the denominator of which shall be the sum of such number
of shares and the total number of shares constituting such dividend or
other distribution.
Such reduction shall become effective immediately after the opening of business
on the day following the Record Date. If any dividend or distribution of the
type described in this Section 10.04(a) is declared but not so paid or made, the
Conversion Price shall again be adjusted to the Conversion Price which would
then be in effect if such dividend or distribution had not been declared.
(b) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and
conversely, in case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased. In each such case, the
Conversion Price shall be adjusted by multiplying such Conversion Price by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately prior to such subdivision or combination and the
denominator of which shall be the number of shares of Common Stock outstanding
immediately after giving effect to such subdivision or combination. Such
reduction or increase, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such subdivision
or combination becomes effective.
(c) In case the Company shall issue rights or warrants to all
holders of its outstanding shares of Common Stock (other than as contemplated by
Section 10.14) entitling them (for a period of not more than 60 days) to
subscribe for or purchase shares of Common Stock (or securities convertible into
Common Stock) at a price per share (or having a conversion price per share) less
than the Current Market Price on the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants, the Conversion Price
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect at the opening of business on the
date after such Record Date by a fraction:
(1) the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date
plus the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase (or the
aggregate conversion price of the convertible securities so offered)
would purchase at such Current Market Price, and
(2) the denominator of which shall be the number of shares of
Common Stock outstanding on the close of business on the Record Date
plus the total number of additional shares of Common Stock so offered
for subscription or purchase (or into which the convertible securities
so offered are convertible).
Such adjustment shall become effective immediately after the opening of business
on the day following the Record Date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of Common
Stock (or securities convertible into Common Stock) are not delivered pursuant
to such rights or warrants, upon the expiration or termination of such rights or
warrants the Conversion Price shall be readjusted to the Conversion Price which
would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of the delivery of only the number of
shares of Common Stock (or securities convertible into Common Stock) actually
delivered. In the event that such rights or warrants are not so issued, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than such Current Market Price, and in
determining the aggregate offering price of such shares of Common Stock, there
shall be taken into account any consideration received for such rights or
warrants, the value of such consideration if other than cash, to be determined
by the Board of Directors.
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock shares of any class of capital
stock of the Company (other than any dividends or distributions to which Section
10.04(a) applies) or evidences of its indebtedness or other assets, including
securities, but excluding (1) any rights or warrants referred to in Section
10.04(c) or 10.14, (2) any dividends or distributions in connection with a
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance to which Section 10.11 hereof applies and (3)
dividends and distributions paid exclusively in cash referred to in Section
10.04(e) (the securities described in foregoing clauses (1), (2) and (3)
hereinafter in this Section 10.04(d) called the "excluded securities"), then, in
each such case, subject to the second succeeding paragraph of this Section
10.04(d), the Conversion Price shall be adjusted so that the same shall be equal
to the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the Record Date with respect to
such distribution by a fraction:
(1) the numerator of which shall be the Current Market Price
on such date, less the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and set forth in a
Board Resolution) on such date of the portion of the securities or
other assets so distributed (other than excluded securities) applicable
to one share of Common Stock (determined on the basis of the number of
shares of the Common Stock outstanding on the Record Date), and
(2) the denominator of which shall be such Current Market
Price.
Such reduction shall become effective immediately prior to the opening of
business on the day following the Record Date. However, in the event that the
then fair market value (as so determined) of the portion of the securities so
distributed (other than excluded securities) applicable to one share of Common
Stock is equal to or greater than the Current Market Price on the Record Date,
in lieu of the foregoing adjustment, adequate provision shall be made so that
each Holder shall have the right to receive upon conversion of a Note (or any
portion thereof) the amount of securities so distributed (other than excluded
securities) such Holder would have received had such Holder converted such Note
(or portion thereof) immediately prior to such Record Date. In the event that
such dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not been declared.
If the Board of Directors determines the fair market value of
any distribution for purposes of this Section 10.04(d) by reference to the
actual or when issued trading market for any securities comprising all or part
of such distribution (other than excluded securities), it must in doing so
consider the prices in such market over the same period (the "Reference Period")
used in computing the Current Market Price pursuant to Section 10.04(g) to the
extent possible, unless the Board of Directors in a Board Resolution determines
in good faith that determining the fair market value during the Reference Period
would not be in the best interests of the Holder.
For purposes of this Section 10.04(d) and Sections 10.04(a),
10.04(b) and 10.04(c), any dividend or distribution to which this Section
10.04(d) is applicable that also includes shares of Common Stock, a subdivision
or combination of Common Stock to which Section 10.04(b) applies, or rights or
warrants to subscribe for or purchase shares of Common Stock (or securities
convertible into Common Stock) to which Section 10.04(c) applies (or any
combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of
indebtedness, assets, shares of capital stock, rights or warrants other
than such shares of Common Stock, such subdivision or combination or
such rights or warrants to which Sections 10.04(a), 10.04(b) and
10.04(c) apply, respectively (and any Conversion Price reduction
required by this Section 10.04(d) with respect to such dividend or
distribution shall then be made), immediately followed by
(2) a dividend or distribution of such shares of Common Stock,
such subdivision or combination or such rights or warrants (and any
further Conversion Price reduction required by Sections 10.04(a),
10.04(b) and 10.04(c) with respect to such dividend or distribution
shall then be made), except:
(A) the Record Date of such dividend or distribution
shall be substituted as (x) "the date fixed for the
determination of stockholders entitled to receive such
dividend or other distribution", "Record Date fixed for such
determinations" and "Record Date" within the meaning of
Section 10.04(a), (y) "the day upon which such subdivision
becomes effective" and "the day upon which such combination
becomes effective" within the meaning of Section 10.04(b), and
(z) as "the date fixed for the determination of stockholders
entitled to receive such rights or warrants", "the Record Date
fixed for the determination of the stockholders entitled to
receive such rights or warrants" and such "Record Date" within
the meaning of Section 10.04(c), and
(B) any shares of Common Stock included in such
dividend or distribution shall not be deemed "outstanding at
the close of business on the date fixed for such
determination" within the meaning of Section 10.04(a) and any
reduction or increase in the number of shares of Common Stock
resulting from such subdivision or combination shall be
disregarded in connection with such dividend or distribution.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock, cash (excluding any cash that is
distributed upon a reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance to which Section 10.11 hereof
applies or as part of a distribution referred to in Section 10.04(d) hereof),
then and in each such case, immediately after the close of business on such
date, the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the close of business on such Record Date by a fraction:
(i) the numerator of which shall be equal to the Current
Market Price on the Record Date less an amount equal to the quotient of
(x) the aggregate amount of the cash distributed and (y) the number of
shares of Common Stock outstanding on the Record Date, and
(ii) the denominator of which shall be equal to the Current
Market Price on such Record Date.
In the event that such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays
holders of the Common Stock in respect of a tender offer or exchange offer,
other than an odd-lot offer, by the Company or any of its Subsidiaries for
shares of Common Stock to the extent that the cash and fair market value of any
other consideration included in the payment per share of Common Stock exceeds
the Closing Price per share of Common Stock on the Trading Day next succeeding
the last date on which tenders or exchanges may be made pursuant to such tender
offer or exchange offer (the "Expiration Time"), then, and 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
close of business on the date of the Expiration Time by a fraction:
(1) the numerator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares)
at the Expiration Time multiplied by the Closing Price of the Common
Stock on the Trading Day next succeeding the Expiration Time, and
(2) the denominator of which shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender offer or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased
Shares) at the Expiration Time and the Closing Price of the Common
Stock on the Trading Day next succeeding the Expiration Time.
Such reduction (if any) shall become effective immediately prior to the opening
of business on the day following the Expiration Time. In the event that the
Company is obligated to purchase shares pursuant to any such tender offer or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such tender offer or exchange offer had not been made. If the
application of this Section 10.04(f) to any tender offer or exchange offer would
result in an increase in the Conversion Price, no adjustment shall be made for
such tender offer or exchange offer under this Section 10.04(f).
(g) For purposes of this Section 10.04, the following terms
shall have the meanings indicated:
"Current Market Price" shall mean the average of the daily
Closing Prices per share of Common Stock for the ten consecutive
Trading Days ending not later than the earlier of the date immediately
prior to the date in question and the day before the "ex" date with
respect to the issuance, distribution, subdivision or combination
requiring such computation. If another issuance, distribution,
subdivision or combination to which Section 10.04 applies occurs during
the period applicable for calculating "Current Market Price" pursuant
to the preceding definition, then "Current Market Price" shall be
appropriately adjusted to reflect the impact of such issuance,
distribution, subdivision or combination on the Closing Price of the
Common Stock during such period. For purposes of this paragraph, the
term "ex" date, when used:
(A) with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on the relevant
exchange or in the relevant market from which the Closing Price was
obtained without the right to receive such issuance or distribution;
(B) with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the Common Stock trades
regular way on such exchange or in such market after the time at which
such subdivision or combination becomes effective, and
(C) with respect to any tender or exchange offer, means the
first date on which the Common Stock trades regular way on such
exchange or in such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments to the Conversion
Price are called for pursuant to this Section 10.04, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 10.04 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
(2) "fair market value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction.
(3) "Record Date" shall mean for purposes of this Article 10,
with respect to any dividend, distribution or other transaction or
event in which the holders of Common Stock have the right to receive
any cash, securities or other property or in which the Common Stock (or
other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for
determination of stockholders entitled to receive such cash, securities
or other property (whether such date is fixed by the Board of Directors
or by statute, contract or otherwise).
(h) The Company may make such reductions in the Conversion
Price, in addition to those required by Section 10.04(a), (b), (c), (d), (e) or
(f), as the Board of Directors considers to be advisable to avoid or diminish
any income tax to holders of Common Stock or rights to purchase Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from
time to time may reduce the Conversion Price by any amount for any period of
time if the period is at least 20 days and the reduction is irrevocable during
the period and the Board of Directors determines in good faith that such
reduction would be in the best interests of the Company, which determination
shall be conclusive and set forth in a Board Resolution. Whenever the Conversion
Price is reduced pursuant to the preceding sentence, the Company shall mail to
the Trustee and each Holder at the address of such Holder as it appears in the
Register a notice of the reduction at least 15 days prior to the date the
reduced Conversion Price takes effect, and such notice shall state the reduced
Conversion Price and the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Conversion Price then in effect; provided, however, that any adjustments
which by reason of this Section 10.04(i) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. In the
event that, on the date that is five Business Days prior to the maturity of the
Notes (whether at Stated Maturity or otherwise), an adjustment has been carried
forward pursuant to the preceding sentence but has not yet been taken into
account in an adjustment to the Conversion Price and notwithstanding the first
sentence of this paragraph (i), an adjustment to the Conversion Price will be
made on such date in accordance with the relevant paragraph of this Section
10.04. All calculations under this Article 10 shall be made by the Company and
shall be made to the nearest cent or to the nearest one hundredth of a share, as
the case may be. No adjustment need be made for a change in the par value or no
par value of the Common Stock. No adjustment in the Conversion Price shall be
required if the Holders participate in the transactions that would otherwise
lead to an adjustment in the Conversion Price pursuant to this Section 10.04.
(j) In any case in which this Section 10.04 provides that an
adjustment shall become effective immediately after a Record Date for an event,
the Company may defer until the occurrence of such event (i) issuing to the
Holder of any Note converted after such Record Date and before the occurrence of
such event the additional shares of Common Stock issuable upon such conversion
by reason of the adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to such adjustment and
(ii) paying to such Holder any amount in cash in lieu of any fraction pursuant
to Section 10.03 hereof.
(k) For purposes of this Section 10.04, the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.
SECTION 10.05 Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided (other than in the
case of an adjustment pursuant to the second paragraph of Section 10.04(h) for
which the notice required by such paragraph has been provided), the Company
shall promptly file with the Trustee and any Conversion Agent other than the
Trustee an Officers' Certificate setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment is based.
Promptly after delivery of such Officers' Certificate, the Company shall prepare
a notice stating that the Conversion Price has been adjusted and setting forth
the adjusted Conversion Price and the date on which each adjustment becomes
effective, and shall mail, or cause the Trustee to mail, at the Company's
expense, such notice to each Holder at the address of such Holder as it appears
in the Register within 20 days of the effective date of such adjustment. Failure
to deliver such notice shall not affect the legality or validity of any such
adjustment.
SECTION 10.06 Notice Prior to Certain Actions. In case at any
time after the date hereof:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of
its capital surplus or its consolidated retained earnings;
(2) the Company shall authorize the granting to the holders of
its Common Stock of rights or warrants to subscribe for or purchase any
shares of capital stock of any class (or of securities convertible into
shares of capital stock of any class) or of any other rights;
(3) there shall occur any reclassification of the Common Stock
of the Company (other than a subdivision or combination of its
outstanding Common Stock, a change in par value, a change from par
value to no par value or a change from no par value to par value), or
any merger, consolidation, statutory share exchange or combination to
which the Company is a party and for which approval of any shareholders
of the Company is required, or the sale, transfer or conveyance of all
or substantially all of the assets of the Company; or
(4) there shall occur the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Notes pursuant to Section 4.05 hereof, and shall cause
to be provided to the Trustee and all Holders in accordance with Section 13.02
hereof, at least 15 days prior to the applicable record or effective date
hereinafter specified, a notice stating:
(A) the date on which a record is to be taken for the
purpose of such dividend, distribution, 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, rights or warrants are to be
determined, or
(B) the date on which such reclassification, merger,
consolidation, statutory share exchange, combination, sale,
transfer, conveyance, 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, cash or other property deliverable upon such
reclassification, merger, consolidation, statutory share
exchange, sale, transfer, dissolution, liquidation or winding
up.
Neither the failure to give such notice nor any defect therein
shall affect the legality or validity of the proceedings or actions described in
clauses (1) through (4) of this Section 10.06.
SECTION 10.07 Company to Reserve Common Stock. The Company
shall at all times use its best efforts to reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Notes, the full number of shares of fully
paid and nonassessable Common Stock then issuable upon the conversion of all
Notes outstanding.
SECTION 10.08 Taxes on Conversions. Except as provided in the
next sentence, the Company will pay any and all taxes (other than taxes on
income) and duties that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Notes pursuant hereto. A Holder
delivering a Note for conversion shall be liable for and will be required to pay
any tax or duty which may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Stock in a name other than that of the
Holder of the Note or Notes to be converted, and no such issue or delivery shall
be made unless the Person requesting such issue has paid to the Company the
amount of any such tax or duty, or has established to the satisfaction of the
Company that such tax or duty has been paid.
SECTION 10.09 Covenant as to Common Stock. The Company
covenants that all shares of Common Stock which may be issued upon conversion of
Notes will upon issue be fully paid and nonassessable.
SECTION 10.10 Cancellation of Converted Notes. All Notes
delivered for conversion shall be delivered to the Trustee to be canceled by or
at the direction of the Trustee, which shall dispose of the same as provided in
Section 2.10.
SECTION 10.11 Effect of Reclassification, Consolidation,
Merger or Sale. If any of following events occur, namely:
(1) any reclassification or change of the 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),
(2) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation, or
(3) any sale or conveyance of all, or substantially all, the
properties and assets of the Company to any other Person,
in each case, as a result of which holders of Common Stock shall be entitled to
receive stock, securities or other property or assets (including cash or any
combination thereof) with respect to or in exchange for such Common Stock, the
Company or the successor or purchasing corporation, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall comply with the
TIA as in force at the date of execution of such supplemental indenture if such
supplemental indenture is then required to so comply) providing that such Note
shall be convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash or any combination thereof)
which such Holder would have been entitled to receive upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance had such Notes been converted into Common Stock
immediately prior to such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance assuming such holder
of Common Stock did not exercise its rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised ("Non-Electing Share"),
then for the purposes of this Section 10.11 the kind and amount of securities,
cash or other property receivable upon such reclassification, change, merger,
consolidation, statutory share exchange, combination, sale or conveyance for
each Non-Electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-Electing Shares). Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article 10. If, in
the case of any such reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance, the stock or other securities
and assets receivable thereupon by a holder of shares of Common Stock includes
shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, merger, consolidation, statutory share exchange,
combination, 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 Notes as the Board of Directors
shall reasonably consider necessary by reason of the foregoing, including to the
extent practicable the provisions providing for the repurchase rights set forth
in Section 3.09 hereof.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at the address of such
Holder as it appears on the Register, within 20 days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section 10.11 shall similarly
apply to successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 10.11 applies to any event or occurrence,
Section 10.04 hereof shall not apply to such event or occurrence.
SECTION 10.12 Adjustment for Other Distributions. If, after
the Issue Date of the Notes, the Company pays a dividend or makes a distribution
to all holders of its Common Stock consisting of Capital Stock of any class or
series, or similar equity interests, of or relating to a Subsidiary or other
business unit of the Company, the Conversion Price shall be adjusted in
accordance with the formula:
P' = P x 1/(1 + F/M)
where:
P' = the adjusted Conversion Price.
P = the current Conversion Price.
F = the fair market value of the securities distributed in respect of
each share of Common Stock, which shall be the number of securities distributed
in respect of each share of Common Stock multiplied by the average of the
Post-Distribution Prices of those securities distributed for the 10 Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend Date.
M = the average of the Post-Distribution Prices of the Common Stock for
the 10 Trading Days commencing on and including the fifth Trading Day after the
date on which "ex-dividend trading" commences for such dividend or distribution
on the principal United States exchange or market which such securities are then
listed or quoted (the "Ex-Dividend Date").
"Post-Distribution Price" of Capital Stock or any similar
equity interest on any date means the closing per unit sale price (or, if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average ask
prices) on such date for trading of such units on a "when issued" basis without
due bills (or similar concept) as reported in the composite transactions for the
principal United States securities exchange or market on which such Capital
Stock or equity interest is traded or, if the Capital Stock or equity interest,
as the case may be, is not listed on a United States national or regional
securities exchange or market, as reported by the Nasdaq system or by the
National Quotation Bureau Incorporated; provided that if on any date such units
have not traded on a "when issued" basis, the Post-Distribution Price shall be
the closing per unit sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date for trading
of such units on a "regular way" basis without due bills (or similar concept) as
reported in the composite transactions for the principal United States
securities exchange on which such Capital Stock or equity interest is traded or,
if the Capital Stock or equity interest, as the case may be, is not listed on a
United States national or regional securities exchange, as reported by the
Nasdaq system or by the National Quotation Bureau Incorporated. In the absence
of such quotation, the Company shall be entitled to determine the
Post-Distribution Price on the basis of such quotations, which reflect the
post-distribution value of the Capital Stock or equity interests as it considers
appropriate.
SECTION 10.13 Responsibility of Trustee for Conversion
Provisions. The Trustee and any Conversion Agent shall not at any time be under
any duty or responsibility to any Holder of Notes to determine whether any facts
exist which may require any adjustment of the Conversion Price, or with respect
to the nature or intent of any such adjustments when made, or with respect to
the method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any Conversion Agent shall
be accountable with respect to the validity or value (of the kind or amount) of
any Common Stock, or of any other securities or property, which may at any time
be issued or delivered upon the conversion of any Note; and it or they do not
make any representation with respect thereto. Neither the Trustee nor any
Conversion Agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of stock or share
certificates or other securities or property upon the surrender of any Note for
the purpose of conversion; and the Trustee and any Conversion Agent shall not be
responsible or liable for any failure of the Company to comply with any of the
covenants of the Company contained in this Article.
SECTION 10.14 Rights Issued in Respect of Common Stock Issued
Upon Conversion. In the event that the Company implements a new preferred shares
rights plan or any similar plan (a "Rights Plan"), or the Company's current
Rights Plan is still in effect, upon conversion of the Notes into Common Stock,
to the extent that any such Rights Plan has been implemented and is still in
effect upon such conversion, the holders of Notes will receive, in addition to
the Common Stock, the rights described therein (whether or not the rights have
separated from the Common Stock at the time of conversion), subject to the
limitations set forth in the Rights Plan. Any distribution of rights or warrants
pursuant to a Rights Plan complying with the requirements set forth in the
immediately preceding sentence of this paragraph (including the issuance of the
rights, the distribution of separate certificates representing the rights, the
exercise or redemption of such rights in accordance with the applicable rights
agreement and the termination or invalidation of the rights) shall not
constitute a distribution of rights or warrants pursuant to Section 10.04.
ARTICLE 11
SUBORDINATION
SECTION 11.01 Agreement to Subordinate. The Company agrees,
and each Holder by accepting a Note agrees, that the principal of and interest
on (including Additional Interest Amounts, if any) and other obligations of any
kind evidenced by the Notes and this Indenture are subordinated in right of
payment, to the extent and in the manner provided in this Article 11, to the
prior payment in full in cash or cash equivalents (or otherwise to the extent
Holders accept satisfaction of amounts due by settlement in other than cash or
cash equivalents) of all Senior Indebtedness (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Indebtedness.
SECTION 11.02 Liquidation; Dissolution; Bankruptcy. In the
event of any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relating to the Company or to its assets, or any liquidation,
dissolution or other winding-up of the Company, whether voluntary or
involuntary, or any assignment for the benefit of creditors or other marshaling
of assets or liabilities of the Company (except in connection with the
consolidation or merger of the Company or its liquidation or dissolution
following the conveyance, transfer or lease of its properties and assets
substantially upon the terms and conditions described in Article 5), the holders
of Senior Indebtedness shall be entitled to receive payment in full in cash or
cash equivalents (or otherwise to the extent Holders accept satisfaction of
amounts due by settlement in other than cash or cash equivalents) of all Senior
Indebtedness, or provision shall be made for such payment in full, before the
Holders will be entitled to receive any payment or distribution of any kind or
character (other than (i) payments made pursuant to the Pledge Agreement, and
(ii) any payment or distribution in the form of equity securities or
subordinated securities of the Company or any successor obligor that, in the
case of any such subordinated securities, are subordinated in right of payment
to all Senior Indebtedness that may at the time be outstanding to at least the
same extent as the Notes are so subordinated (such equity securities or
subordinated securities hereinafter being "Permitted Junior Securities")); and
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than (i) any payments made
pursuant to the Pledge Agreement or (ii) a payment or distribution in the form
of Permitted Junior Securities), by set-off or otherwise, to which the Holders
or the Trustee would be entitled but for the provisions of this Article 11 shall
be paid by the liquidating trustee or agent or other person making such payment
or distribution, whether a trustee in bankruptcy, a receiver or liquidating
trustee or otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives ratably according to the aggregate amounts
remaining unpaid on account of the Senior Indebtedness to the extent necessary
to make payment in full in cash or cash equivalents (or otherwise to the extent
Holders accept satisfaction of amounts due by settlement in other than cash or
cash equivalents) of all Senior Indebtedness remaining unpaid, or to have such
payment duly provided for, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness.
SECTION 11.03 Default on Designated Senior Indebtedness. (a)
No payment or distribution of any assets of the Company of any kind or
character, whether in cash, property or securities (other than (i) any payments
made pursuant to the Pledge Agreement or (ii) payments in the form of Permitted
Junior Securities), may be made by or on behalf of the Company on account of
principal of, premium or Additional Interest Amounts, if any, or interest on the
Notes or on account of the purchase, redemption or other acquisition of Notes
upon the occurrence of any Payment Default until such Payment Default shall have
been cured or waived in writing or shall have ceased to exist or the Designated
Senior Indebtedness giving rise to such Payment Default shall have been
discharged or paid in full in cash or cash equivalents (or otherwise to the
extent Holders accept satisfaction of amounts due by settlement in other than
cash or cash equivalents). "Payment Default" shall mean a default in payment,
whether at scheduled maturity, upon scheduled installment, by acceleration or
otherwise, of principal of, or premium, if any, or interest on Designated Senior
Indebtedness beyond any applicable grace period.
(b) No payment or distribution of any assets of the Company of
any kind or character, whether in cash, property or securities (other than (i)
any payments made pursuant to the Pledge Agreement or (ii) payments in the form
of Permitted Junior Securities), may be made by or on behalf of the Company on
account of principal of, premium or Additional Interest Amounts, if any, or
interest on the Notes or on account of the purchase, redemption or other
acquisition of Notes during a Payment Blockage Period (as defined below), upon
the occurrence of any event of default with respect to any Designated Senior
Indebtedness other than any Payment Default pursuant to which the maturity
thereof may be accelerated (a "Non-Payment Default") .
The Payment Blockage Period shall mean the period (each, a
"Payment Blockage Period") commencing upon the date of receipt by the Trustee of
written notice from the representative of the holders of the Designated Senior
Indebtedness in respect of which the Non-Payment Default exists and shall end on
the earliest of:
(i) 179 days thereafter (provided that any Designated Senior
Indebtedness as to which notice was given shall not theretofore have
been accelerated);
(ii) the date on which such Non-Payment Default is cured,
waived or ceases to exist;
(iii) the date on which such Designated Senior Indebtedness is
discharged or paid in full; or
(iv) the date on which such Payment Blockage Period shall have
been terminated by written notice to the Trustee or the Company from
the representative initiating such Payment Blockage Period,
after which the Company will resume making any and all required payments in
respect of the Notes, including any missed payments. In any event, not more than
one Payment Blockage Period may be commenced during any period of 365
consecutive days. No Non-Payment Default that existed or was continuing on the
date of the commencement of any Payment Blockage Period will be, or can be made,
the basis for the commencement of a subsequent Payment Blockage Period, unless
such Non-Payment Default has been cured or waived for a period of not less than
90 consecutive days subsequent to the commencement of the previous Payment
Blockage Period.
SECTION 11.04 Acceleration of Notes. If payment of the Notes
is accelerated because of an Event of Default, the Company shall promptly notify
holders of Senior Indebtedness of the acceleration.
SECTION 11.05 When Distribution Must Be Paid Over. In the
event that, notwithstanding the provisions of Sections 11.02 and 11.03, any
payment or distribution of any kind or character, whether in cash, property or
securities, shall be received by the Trustee or any Holder which is prohibited
by such provisions, then such payment shall be held for the benefit of, and
shall be paid over and delivered by such Trustee or Holder to, the
representative of holders of Senior Indebtedness, as their interests may appear,
for application to Senior Indebtedness to the extent necessary to pay or to
provide for the payment of all such Senior Indebtedness in full in cash or cash
equivalents (or otherwise to the extent Holders accept satisfaction of amounts
due by settlement in other than cash or cash equivalents).
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article 11, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness, and shall not be
liable to any such holders if the Trustee shall pay over or distribute to or on
behalf of Holders or the Company or any other Person money or assets to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
11, except if such payment is made as a result of the willful misconduct or
gross negligence of the Trustee.
SECTION 11.06 Notice by the Company. The Company shall
promptly notify the Trustee and the Paying Agent of any facts known to the
Company that would cause a payment of any obligations with respect to the Notes
to violate this Article 11, but failure to give such notice shall not affect the
subordination of the Notes to the Senior Indebtedness as provided in this
Article 11.
SECTION 11.07 Subrogation. After all Senior Indebtedness is
paid in full and until the Notes are paid in full, Holders shall be subrogated
(equally and ratably with all other Indebtedness that is equal in right of
payment to the Notes) to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness to the extent that distributions
otherwise payable to the Holders have been applied to the payment of Senior
Indebtedness. A distribution made under this Article 11 to holders of Senior
Indebtedness that otherwise would have been made to Holders is not, as between
the Company and Holders, a payment by the Company of the Notes.
SECTION 11.08 Relative Rights. This Article 11 defines the
relative rights of Holders and holders of Senior Indebtedness. Nothing in this
Indenture shall: (i) impair, as between the Company and Holders, the obligation
of the Company, which is absolute and unconditional, to pay principal of and
interest on the Notes in accordance with their terms; (ii) affect the relative
rights of Holders and creditors of the Company other than their rights in
relation to holders of Senior Indebtedness; or (iii) prevent the Trustee or any
Holder from exercising its available remedies upon a Default or Event of
Default, subject to the rights of holders and owners of Senior Indebtedness to
receive distributions and payments otherwise payable to Holders of Notes. If the
Company fails because of this Article 11 to pay principal of or interest on a
Note on the Stated Maturity date or an Interest Payment Date, as the case may
be, the failure is still a Default or Event of Default.
SECTION 11.09 Subordination May Not Be Impaired by the
Company. No right of any holder of Senior Indebtedness to enforce the
subordination of the Indebtedness evidenced by the Notes shall be impaired by
any act or failure to act by the Company or any Holder or by the failure of the
Company or any Holder to comply with this Indenture.
Without in any way limiting the generality of this Section
11.09, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders, without
incurring responsibility to the Trustee or the Holders and without impairing or
releasing the subordination provided in this Article 11 or the obligations
hereunder of the Holders to the holders of Senior Indebtedness, do any one or
more of the following: (a) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, Senior Indebtedness, or any
instrument evidencing the same or any agreement under which Senior Indebtedness
is outstanding or secured; (b) sell, exchange, release, foreclose against or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company, and Subsidiary thereof or any other Person.
SECTION 11.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of any Senior
Indebtedness, the distribution may be made and the notice given to their trustee
or representative.
Upon any payment or distribution of assets of the Company
referred to in this Article 11, the Trustee and the Holders of Notes shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction or upon any certificate of such representative(s) or 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, all holders of the Senior Indebtedness 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 11.
SECTION 11.11 Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 11 or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts that would prohibit the making of any payment or distribution by the
Trustee, and the Trustee and the Paying Agent may continue to make payments on
the Notes, unless a Responsible Officer of the Trustee shall have received at
its Corporate Trust Office at least three Business Days prior to the date of
such payment written notice of facts that would cause the payment of any
obligations with respect to the Notes to violate this Article 11. Only the
Company or representative may give the notice. Nothing in this Article 11 shall
impair the claims of, or payments to, the Trustee under or pursuant to Section
7.06.
The Trustee in its individual or any other capacity may hold
Senior Indebtedness with the same rights it would have if it were not Trustee.
ARTICLE 12
SECURITY
SECTION 12.01 Security.
(a) At the Closing Time, the Company shall (i) enter into the
Pledge Agreement and comply with the terms and provisions thereof and (ii)
purchase the Initial Pledged Securities to be pledged to the Trustee for its
benefit and the ratable benefit of the Holders in such amount as will be
sufficient, upon receipt of scheduled interest and principal payments of such
Initial Pledged Securities, as computed by the Company and verified for
mathematical accuracy by KPMG LLP, independent public accountants, or another
nationally recognized firm of independent public accountants selected by the
Company, to provide for payment in full of the first six scheduled interest
payments (up to and including the interest payment due on September 9, 2006 but
excluding Additional Interest Amounts), on the Notes when due. The Initial
Pledged Securities shall be pledged by the Company to the Trustee for its
benefit and the ratable benefit of the Holders and shall be held by the Trustee
in the Pledged Account pending disposition pursuant to the Pledge Agreement.
(b) On each relevant Date of Delivery (if such Date of
Delivery is different from the Closing Time), the Company shall (i) enter into a
supplement to the Pledge Agreement and comply with the terms and provisions
thereof and (ii) purchase the Additional Pledged Securities to be pledged to the
Trustee for its benefit and the ratable benefit of the Holders in such amount as
will be sufficient upon receipt of scheduled interest and principal payments of
such Additional Pledged Securities, as computed by the Company and verified for
mathematical accuracy by KPMG LLP, independent public accountants, or another
nationally recognized firm of independent public accountants selected by the
Company, to provide for payment in full of the first six scheduled interest
payments due on the Notes issued in connection therewith. The Additional Pledged
Securities shall be pledged by the Company to the Trustee for its benefit and
the ratable benefit of the Holders and shall be held by the Trustee in the
Pledged Account pending disposition pursuant to the Pledge Agreement.
(c) Each Holder, by its acceptance of a Note, consents and
agrees to the terms of the Pledge Agreement (including, without limitation, the
provisions providing for foreclosure and release of the Pledged Securities) as
the same may be in effect or may be amended from time to time in writing by the
parties thereto (provided that no amendment that would materially adversely
affect the rights of the Holders may be effected without the consent of each
Holder affected thereby), and authorizes and directs the Trustee to enter into
the Pledge Agreement and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Company will do or cause to be done all
such acts and things as may be necessary or proper, or as may be required by the
provisions of the Pledge Agreement, to assure and confirm to the Trustee the
security interest in the Pledged Securities contemplated hereby, by the Pledge
Agreement or any part thereof, as from time to time constituted, so as to render
the same available for the security and benefit of this Indenture and of the
Notes secured hereby, according to the intent and purpose herein expressed. The
Company shall take, or shall cause to be taken, upon request of the Trustee, any
and all actions reasonably required to cause the Pledge Agreement to create and
maintain, as security for the obligations of the Company under this Indenture
and the Notes as provided in the Pledge Agreement, valid and enforceable first
priority perfected liens in and on all the Pledged Securities, in favor of the
Trustee for its benefit and the ratable benefit of the Holders, superior to and
prior to the rights of third Persons and subject to no other Liens.
(d) The release of any Pledged Securities pursuant to the
Pledge Agreement will not be deemed to impair the security under this Indenture
in contravention of the provisions hereof if and to the extent the Pledged
Securities are released pursuant to this Indenture and the Pledge Agreement. To
the extent applicable, the Company shall cause Section 314(d) of the TIA
relating to the release of property or securities from the Lien and security
interest of the Pledge Agreement and relating to the substitution therefor of
any property or securities to be subjected to the Lien and security interest of
the Pledge Agreement to be complied with. Any certificate or opinion required by
Section 314(d) of the TIA may be made by an Officer of the Company, except in
cases where Section 314(d) of the TIA requires that such certificate or opinion
be made by an independent Person, which Person shall be an independent engineer,
appraiser or other expert selected by the Company.
(e) The Company shall cause Section 314(b) of the TIA,
relating to Opinions of Counsel regarding the Lien under the Pledge Agreement,
to be complied with. The Trustee may, to the extent permitted by Section 7.01
and 7.02 hereof, accept as conclusive evidence of compliance of the foregoing
provisions the appropriate statements contained in such Opinions of Counsel.
(f) The Trustee may, in its sole discretion and without the
consent of the Holders, on behalf of the Holders, take all actions it deems
necessary or appropriate in order to (i) enforce any of the terms of the Pledge
Agreement and (ii) collect and receive any and all amounts payable in respect of
the obligations of the Company thereunder. The Trustee shall have the authority
necessary in order to institute and maintain such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Pledged Securities (including the authority to
institute and maintain suits or proceedings to restrain the enforcement of, or
compliance with, any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of, or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or the
Trustee).
(g) Beyond the exercise of reasonable care in the custody and
preservation thereof, the Trustee shall have no duty as to any Pledged
Securities in its possession or any income thereon or as to preservation of
rights against prior parties or any other rights pertaining thereto, and the
Trustee shall not be responsible for filing any financing or continuation
statements or recording any documents or instruments in any public office at any
time or times or otherwise perfecting or maintaining the perfection of any
security interest in the Pledged Securities. The Trustee shall be deemed to have
exercised reasonable care in the custody and preservation of the Pledged
Securities in its possession if the Pledged Securities are accorded treatment
substantially equal to that which it accords its own property or property held
in similar accounts and shall not be liable or responsible for any loss or
diminution in the value of any of the Pledged Securities, by reason of the act
or omission of the Trustee, any carrier, forwarding agency or other agent or
bailee selected by the Trustee in good faith.
(h) The Trustee shall not be responsible for the existence,
genuineness or value of any of the Pledged Securities or for the validity,
perfection, priority or enforceability of the Liens in any of the Pledged
Securities, whether impaired by operation of law or otherwise, for the validity
or sufficiency of the Pledged Securities or any agreement or assignment
contained therein, for the validity of the title of the Company to the Pledged
Securities, for insuring the Pledged Securities or for the payment of taxes,
charges, assessments or Liens upon the Pledged Securities or otherwise as to the
maintenance of the Pledged Securities. The Trustee shall have no duty to
ascertain or inquire as to the performance or observance of any of the terms of
this Indenture or the Pledge Agreement by the Company.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies, or conflicts with another provision which
is required to be included in this Indenture by the TIA, the required provision
shall control. If any provision of this Indenture expressly modifies or excludes
any provision of the TIA that may be so modified or excluded, the Indenture
provision so modifying or excluding such provision of the TIA shall be deemed to
apply.
SECTION 13.02 Notices. Any request, demand, authorization,
notice, waiver, consent or communication shall be in writing and delivered in
person or mailed by first-class mail, postage prepaid, addressed as follows, or,
other than notices to the Company, transmitted by facsimile transmission
(confirmed by guaranteed overnight courier) to the following facsimile numbers:
if to the Company:
Openwave Systems Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
if to the Trustee:
U.S. Bank National Association 00 Xxxxxxxxxx Xxxxxx Xx. Xxxx,
Xxxxxxxxx 00000-0000 Attention: Corporate Trust Administration
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Holder shall be mailed
to the Holder, by first-class mail, postage prepaid, at the Holder's address as
it appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not received by the addressee.
If the Company mails a notice or communication to the Holders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
SECTION 13.03 Communication by Holders with Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Notes. The Company, the Trustee, the
Registrar, the Paying Agent, the Conversion Agent and anyone else shall have the
protection of TIA Section 312(c).
SECTION 13.04 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.05 Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to compliance with
a covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are
based;
(3) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable such person
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
SECTION 13.06 Separability Clause. In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 13.07 Rules by Trustee, Paying Agent, Conversion Agent
and Registrar. The Trustee may make reasonable rules for action by or a meeting
of Holders. The Registrar, Conversion Agent and the Paying Agent may make
reasonable rules for their functions.
SECTION 13.08 Legal Holidays. A "Legal Holiday" is any day
other than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the action shall be taken on the next succeeding day
that is not a Legal Holiday, and, if the action to be taken on such date is a
payment in respect of the Notes, no interest, if any, shall accrue for the
intervening period.
SECTION 13.09 GOVERNING LAW. THIS INDENTURE AND THE NOTES WILL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 13.10 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Notes or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Notes.
SECTION 13.11 Successors. All agreements of the Company in
this Indenture and the Notes shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 13.12 Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective parties hereto as of
the date first above written.
OPENWAVE SYSTEMS INC.
By:___________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
as Trustee
By: ___________________________
Name:
Title: Authorized Signatory
EXHIBIT A-1
[FORM OF FACE OF GLOBAL NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION AS SET FORTH BELOW.
BY ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT); (2) AGREES, FOR THE BENEFIT OF OPENWAVE SYSTEMS INC. (THE "COMPANY") THAT
IT WILL NOT PRIOR TO THE DATE THAT IS TWO YEARS AFTER THE LATER OF THE INITIAL
ISSUANCE OF THE NOTE EVIDENCED HEREBY AND THE LAST DATE ON WHICH THE COMPANY OR
ANY "AFFILIATE" (AS DEFINED IN RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY
WAS THE OWNER OF THE NOTE (THE "RESTRICTION TERMINATION DATE") RESELL OR
OTHERWISE TRANSFER THE NOTE EVIDENCED HEREBY OR THE COMMON STOCK ISSUED UPON
CONVERSION OF SUCH NOTE, EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF,
(B) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER THAT PURCHASES
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO
WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A,
(C) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM REGISTRATION PROVIDED UNDER THE
SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH
HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER); AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THE NOTE EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE NOTE EVIDENCED HEREBY BEFORE
THE RESTRICTION TERMINATION DATE (OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(D)
ABOVE), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET FORTH ON THE REVERSE
HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND SUBMIT THIS NOTE TO U.S. BANK
NATIONAL ASSOCIATION AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE). THE
HOLDER MUST, PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO CLAUSE
2(D) ABOVE), FURNISH TO THE COMPANY AND U.S. BANK NATIONAL ASSOCIATION AS
TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM THAT
SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND
WILL BE REMOVED UPON ANY TRANSFER OF THE NOTE EVIDENCED HEREBY PURSUANT TO
CLAUSE 2(D) ABOVE OR UPON OR AFTER THE RESTRICTION TERMINATION DATE.
OPENWAVE SYSTEMS INC.
2 3/4% Convertible Subordinated Notes due 2008
CUSIP NO. 000000XX0
No.:
Issue Date: ___________, 2003
OPENWAVE SYSTEMS INC., a Delaware corporation, promises to pay to Cede
& Co. or registered assigns, the principal sum of [ ] Dollars ($[ ]) on
September 9, 2008.
This Note shall bear interest as specified on the other side of this
Note. This Note is convertible as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of
this Note.
Dated [ ], 2003 OPENWAVE SYSTEMS INC.
By
____________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION as Trustee, certifies that this is one of the
Notes referred to in the within-mentioned Indenture (as defined on the other
side of this Note).
By_____________________________
Authorized Signatory
Dated: ______________________
[FORM OF REVERSE SIDE OF NOTE]
2 3/4% Convertible Subordinated Note due 2008
Capitalized terms used herein but not defined shall have the meanings
assigned to them in the Indenture (the "Indenture") dated September 9, 2003
between the Company and U.S. Bank National Association (the "Trustee") unless
otherwise indicated.
1. Cash Interest.
The Company promises to pay interest at the Interest Rate in cash on
the principal amount of this Note. The Company will pay cash interest
semiannually in arrears on March 9 and September 9 of each year (each an
"Interest Payment Date"), beginning on March 9, 2004, to Holders of record at
the close of business on the preceding February 23 and August 23 (whether or not
a business day) (each a "Regular Record Date"), as the case may be, immediately
preceding such Interest Payment Date. Cash interest on the Notes will accrue
from the most recent date to which interest has been paid or duly provided or,
if no interest has been paid, from the Issue Date. Cash interest will be
computed on the basis of a 360-day year of twelve 30-day months. The Company
shall pay cash interest on overdue principal at the rate borne by the Notes, and
it shall pay interest in cash on overdue installments of cash interest at the
same rate to the extent lawful. All such overdue cash interest shall be payable
on demand. Upon conversion, accrued and unpaid interest shall be deemed paid in
full rather than cancelled, extinguished or forfeited.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of the principal of, premium, if any, and cash interest
on this Note and in respect of Redemption Prices and Change in Control
Repurchase Prices to Holders who surrender Notes to a Paying Agent to collect
such payments in respect of the Notes. The Company will pay cash amounts in
money of the United States that at the time of payment is legal tender for
payment of public and private debts. However, the Company may make such cash
payments by check or wire transfer payable in such money. Notwithstanding the
foregoing, so long as this Note is registered in the name of a Depositary or its
nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee. Any payment
required to be made on any day that is not a Business Day will be made on the
next succeeding Business Day.
3. Paying Agent, Conversion Agent and Registrar.
Initially, the Trustee will act as Paying Agent, Conversion Agent and
Registrar. The Company may appoint and change any Paying Agent, Conversion
Agent, Registrar or co-registrar without notice, other than notice to the
Trustee except that the Company will maintain at least one Paying Agent in the
State of New York, City of New York, The Borough of Manhattan, which shall
initially be an office or agency of the Trustee. The Company or any of its
Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion
Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Notes under the Indenture. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as in effect from time to time
(the "TIA"). The Notes are subject to all such terms, and Holders are referred
to the Indenture and the TIA for a statement of those terms.
The Notes are general unsecured obligations of the Company (except as
provided in Paragraph 15 hereof) limited to $135,000,000 aggregate principal
amount, or $150,000,000 aggregate principal amount if the 30-day Option is
exercised fully (subject to Section 2.07 of the Indenture). The Indenture does
not limit other Indebtedness of the Company, secured or unsecured.
5. Optional Redemption.
This Note is not redeemable prior to September 9, 2006. On and after
September 9, 2006, the Company may, at its option, redeem the Notes in whole at
any time or in part from time to time, in cash, on any date prior to Stated
Maturity, upon notice as set forth in Section 3.04 of the Indenture, at a
redemption price equal to 100% of the principal amount (the "Redemption Price"),
plus accrued and unpaid interest, if any, to (but not including) the Redemption
Date, only if the Closing Price of the Common Stock has exceeded 150% of the
Conversion Price then in effect for at least 20 Trading Days in any consecutive
30-Trading Day period ending on the Trading Day prior to the date of mailing of
the notice of optional redemption pursuant to Section 3.04 of the Indenture.
However, if a Redemption Date is after a Regular Record Date but on or prior to
the corresponding Interest Payment Date, the accrued and unpaid interest
becoming due on such date shall be payable to the Holders of such Notes, or one
or more predecessor Notes, registered as such on the relevant Regular Record
Date according to their terms, and the Redemption Price shall not include such
interest payment. If fewer than all the Notes are to be redeemed, the Trustee
shall select the particular Notes to be redeemed from the outstanding Notes by
the methods as provided in the Indenture.
On and after the Redemption Date, interest ceases to accrue on Notes or
portions of Notes called for redemption, unless the Company defaults in the
payment of the Redemption Price and accrued and unpaid interest.
Notice of redemption will be given by the Company to the Holders as
provided in the Indenture.
No sinking fund is provided for the Notes.
6. Repurchase by the Company at the Option of the Holder.
If there shall have occurred a Change in Control (subject to certain
conditions provided for in the Indenture), each Holder, at such Holder's option,
shall have the right, in accordance with the provisions of the Indenture, to
require the Company to repurchase its Notes (or any portion of the principal
amount hereof that is at least $1,000 or any whole multiple thereof, provided
that the portion of the principal amount of this Note to be outstanding after
such repurchase is at least equal to $1,000) at the Change in Control Repurchase
Price in cash or shares of Common Stock (subject to certain conditions provided
for in the Indenture) plus any accrued and unpaid interest to but not including
the Change in Control Repurchase Date.
If the Company elects to pay the Change in Control Repurchase Price by
delivering shares of Common Stock in lieu of cash, the number of shares of
Common Stock to be issued shall be equal to (i) the Change in Control Repurchase
Price divided by (ii) 95% of the average of the Closing Price of one share of
Common Stock for the ten consecutive Trading Days immediately preceding and
including the third Trading Day prior to the Change in Control Repurchase Date.
No fractional shares of Common Stock will be issued upon repurchase of
any Notes. Instead of any fractional share of Common Stock that would otherwise
be issued upon conversion of such Notes, the Company shall pay a cash adjustment
as provided in the Indenture.
A written notice of the Change in Control will be given to the Holders
as provided in the Indenture. To exercise a repurchase right, a Holder must
deliver to the Trustee a Change in Control Repurchase Notice as provided in the
Indenture.
Holders have the right to withdraw any Change in Control Repurchase
Notice by delivering to the Paying Agent a written notice of withdrawal in
accordance with the provisions of the Indenture.
7. Conversion.
Subject to the next two succeeding sentences, a Holder of a Note may
convert such Note, or any portion of the principal amount thereof which is
$1,000 or a whole multiple of $1,000, into shares of Common Stock of the Company
at any time before the close of business on the Business Day prior to September
9, 2008. If the Note is called for redemption, the Holder may convert it at any
time before the close of business on the Business Day preceding the Redemption
Date, except as provided in the Indenture. A Note in respect of which a Holder
has delivered a Change in Control Repurchase Notice exercising the option of
such Holder to require the Company to purchase such Note may be converted only
if such Change in Control Repurchase Notice is withdrawn in accordance with the
terms of the Indenture.
The initial Conversion Price shall be equal to $6.132 per share of
Common Stock (which is equal to a conversion rate of 163.0789 shares per $1,000
principal amount of Notes), subject to adjustment in certain events described in
the Indenture. The Company shall pay a cash adjustment as provided in the
Indenture in lieu of any fractional share of Common Stock.
To convert a Certificated Note, a Holder must (1) complete and manually
sign the conversion notice below (or complete and manually sign a facsimile of
such notice) and deliver such notice to the Conversion Agent, (2) surrender the
Note to the Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by the Conversion Agent, the Company or the Trustee and
(4) pay any transfer or similar tax, if required. To convert a Global Note, a
Holder must comply with the procedures of the Depositary in effect at such time.
8. Denominations; Transfer; Exchange.
The Notes are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and whole multiples of $1,000. A
Holder may transfer or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Notes selected for redemption (except, in the case of a Note to be redeemed
in part, the portion of the Note not to be redeemed) or any Notes in respect of
which a Change in Control Repurchase Notice has been given and not withdrawn
(except, in the case of a Note to be purchased in part, the portion of the Note
not to be purchased) or any Notes for a period of 15 days before the mailing of
a notice of redemption of Notes to be redeemed.
9. Persons Deemed Owners.
The registered Holder of this Note shall be treated as the owner of
this Note for all purposes.
10. Unclaimed Money or Notes.
The Trustee and the Paying Agent shall return to the Company upon
written request any money, Notes or shares of Common Stock held by them for the
payment of any amount with respect to the Notes that remains unclaimed for two
years, subject to applicable unclaimed property law. After such return to the
Company, Holders entitled to the money or Notes must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.
11. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the Holders of
not less than a majority in aggregate principal amount of the Notes at the time
outstanding and (ii) certain Defaults may be waived with the written consent of
the Holders of not less than a majority in aggregate principal amount of the
Notes at the time outstanding. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder, the Company and the Trustee may
amend the Indenture or the Notes to, among other things, cure any ambiguity,
omission, defect or inconsistency, or to comply with Article 5 of the Indenture,
to provide for uncertificated Notes in addition to or in place of certificated
Notes or to make any change that does not adversely affect the rights of any
Holder, or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA.
12. Defaults and Remedies.
Under the Indenture, Events of Default include (1) the Company fails to
pay when due the principal of or premium, if any, on any of the Notes at Stated
Maturity, upon redemption or exercise of a repurchase right or otherwise,
whether or not such payment is prohibited by Article 11 of the Indenture; (2)
the Company fails to pay an installment of interest (or Additional Interest
Amounts, if any) on any of the Notes that continues for 30 days after the date
when due, whether or not such payment is prohibited by Article 11 of the
Indenture; provided that a failure to make any of the first six scheduled
interest payments on the Notes on the applicable Interest Payment Dates will
constitute an Event of Default with no grace period or cure period; (3) the
Company fails to deliver shares of Common Stock, together with cash in lieu of
fractional shares, when such Common Stock or cash in lieu of fractional shares
is required to be delivered upon conversion of a Note and such failure continues
for 10 days after written notice of default is given to the Company by the
Trustee or to the Company and the Trustee by the Holder of such Note; (4) the
Company fails to perform or observe any other term, covenant or agreement
contained in the Notes or the Indenture for a period of 60 days after written
notice of such failure, requiring the Company to remedy the same, shall have
been given to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding (a "Notice of Default"); (5) (A) one or more defaults in the payment
of principal of or premium, if any, on any of the Company's Indebtedness for
borrowed money aggregating $10.0 million or more, when the same becomes due and
payable at the scheduled maturity thereof, and such default or defaults shall
have continued after any applicable grace period and shall not have been cured
or waived within a 30-day period after the date of a Notice of Default or (B)
any of the Company's Indebtedness for borrowed money aggregating $10.0 million
or more shall have been accelerated or otherwise declared due and payable, or
required to be prepaid or repurchased (other than by regularly scheduled
required prepayment) prior to the scheduled maturity thereof and such
acceleration is not rescinded or annulled within a 30-day period after the date
of a Notice of Default; (6) certain events of bankruptcy, insolvency or
reorganization with respect to the Company or any Significant Subsidiary; (7)
the Company's filing of, or any Significant Subsidiaries' filing of, a voluntary
petition seeking liquidation, reorganization arrangement, readjustment of debts
or for any other relief under the federal bankruptcy code; and (8) the Pledge
Agreement shall cease to be in full force and effect or enforceable prior to the
expiration in accordance with its terms. If an Event of Default (other than an
Event of Default specified in clause (6) or (7) of Section 6.01 of the
Indenture) occurs and is continuing, the Trustee, or the Holders of at least 25%
in aggregate principal amount of the Notes at the time outstanding, may declare
all the Notes to be due and payable immediately. Certain events of bankruptcy or
insolvency are Events of Default which will result in the Notes becoming due and
payable immediately upon the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Notes, except as provided
in the Indenture. The Trustee may refuse to enforce the Indenture or the Notes
unless it receives reasonable indemnity or security. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the Notes at
the time outstanding may direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders notice of any continuing Default
(except a Default in payment of amounts specified in clause (1) or (2) above) if
it determines that withholding notice is in their interests as provided in the
Indenture.
13. Subordination.
The payment of principal of, premium or Additional Interest Amounts, if
any, and interest on the Notes will be subordinated in right of payment, as set
forth in the Indenture, to the prior payment in full in cash or cash equivalents
(or otherwise to the extent Holders accept satisfaction of amounts due by
settlement in other than cash or cash equivalents) of all Senior Indebtedness
whether outstanding on the date of the Indenture or thereafter incurred.
14. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
15. Security.
The Company has entered into the Pledge Agreement and purchased and
pledged to the Trustee for its benefit and the ratable benefit of the Holders
Pledged Securities in an amount sufficient upon receipt of scheduled interest
and principal payments on such securities to provide for the payment in full of
the first six scheduled interest payments (up to and including the interest
payments due on September 9, 2006), but no Additional Interest Amounts, on the
Notes when due. The Pledged Securities will be pledged by the Company to the
Trustee for its benefit and the ratable benefit of the Holders and will be held
by the Trustee in the Pledged Account pending disbursement pursuant to the
Pledge Agreement.
16. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the Notes
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Note, each Holder waives and
releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
17. Authentication.
This Note shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
19. GOVERNING LAW.
THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
--------------------
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture which has in it the text of this Note. Requests
may be made to:
Openwave systems Inc.
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: General Counsel
ASSIGNMENT FORM
For value received _____________________ hereby sell(s), assign(s), and
transfer(s) unto __________________________ (Please insert social security or
other Taxpayer Identification Number of assignee) the within Note, and hereby
irrevocably constitutes and appoints ________________________ attorney to
transfer the said Note on the books of the Company, with full power of
substitution in the premises.
In connection with the transfer of this Note within the period prior to
the expiration of the holding period applicable to the sales thereof under Rule
144(k) under the Securities Act of 1933, as amended (the "Securities Act") (or
any successor provision), the undersigned registered owner of this Note hereby
certifies with respect to $____________ principal amount of this Note presented
or surrendered on the date hereof (the "Surrendered Note") for registration of
transfer, or for exchange where the Notes issuable upon such transfer or
exchange are to be registered in a name other than that of the undersigned
registered owner (each such transaction being a "transfer"), that such transfer
complies with the restrictive legend set forth on the face of the Surrendered
Note for the reason checked below:
[ ] A transfer of the Surrendered Note is made to the Company or
any Subsidiaries; or
[ ] The transfer of the Surrendered Note complies with Rule 144A
under the U.S. Securities Act of 1933, as amended (the
"Securities Act"); or
[ ] The transfer of the Surrendered Note is pursuant to an
effective registration statement under the Securities Act, or
[ ] The transfer of the Surrendered Note is pursuant to another
available exemption from the registration requirement of the
Securities Act,
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, the Surrendered Note is not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act (an
"Affiliate").
[ ] The transferee is an Affiliate of the Company.
Dated:________________________ ____________________________________________
--------------------------------------------
Signature(s)
Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting the
requirements of the Registrar, which
requirements include membership or
participation in the Security Transfer Agent
Medallion Program ("STAMP") or such other
"signature guarantee program" as may be
determined by the Notes registrar in
addition to, or in substitution for, STAMP,
all in accordance with the Securities
Exchange Act of 1934, as amended.
CONVERSION NOTICE
To convert this Note into Common Stock of the Company, check the box:
To convert only part of this Note, state the principal amount to be converted
(which must be $1,000 or an integral multiple of $1,000):
$__________________________
If you want the stock certificate made out in another person's name, fill in the
form below:
_________________________________________________
_________________________________________________
(Insert other person's social sec. or tax ID no.)
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
_________________________________________________
(Print or type other person's name, address and
zip code)
[ ] If you want the stock certificate made out in another person's name, you
are required to complete and deliver to the Conversion Agent a duly
completed Transfer Certificate (which is in the form of Exhibit B-1 to
the Indenture) as required thereby.
EXHIBIT A-2
[Form of Certificated Note]
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS.
THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT
OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED (X) PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD UNDER RULE 144(k)
(OR ANY SUCCESSOR THERETO) UNDER THE SECURITIES ACT WHICH IS APPLICABLE TO THIS
SECURITY OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF
RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE
MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO
THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) TO AN INSTITUTION THAT IS
AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501 (a) (1), (2) OR (7) UNDER THE
SECURITIES ACT ("INSTITUTIONAL ACCREDITED INVESTOR") THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND THAT, PRIOR TO
SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER MAY BE
OBTAINED FROM THE TRUSTEE), (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT
OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES. THE HOLDER MUST, PRIOR TO SUCH TRANSFER (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE (5) ABOVE), FURNISH TO THE COMPANY AND U.S. BANK
NATIONAL ASSOCIATION AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND
AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL
BUYER OR (2) AN INSTITUTIONAL ACCREDITED INVESTOR AND THAT IT IS HOLDING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION. IN ANY CASE THE
HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING
TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT."
OPENWAVE SYSTEMS INC.
2 3/4% Convertible Subordinated Notes due 2008
CUSIP NO. 000000XX0
No.:
Issue Date:
OPENWAVE SYSTEMS INC., a Delaware corporation, promises to pay to Cede
& Co. or registered assigns, the principal sum of ____________________Dollars
($__________) on September 9, 2008.
This Note shall bear interest as specified on the other side of this
Note. This Note is convertible as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side of
this Note.
Dated: OPENWAVE SYSTEMS INC.
By
--------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION as Trustee, certifies that this is one of the
Notes referred to in the within-mentioned Indenture (as defined on the other
side of this Note).
By_______________________________
Authorized Signatory
Dated: ________________________
[Text of Reverse Side of Note]
Use Exhibit A-1 Text
EXHIBIT B-1
Transfer Certificate
In connection with any transfer (or exchange or conversion as provided
below) of any of the Notes within the period prior to the expiration of the
holding period applicable to the sales thereof under Rule 144(k) under the
Securities Act of 1933, as amended (the "Securities Act") (or any successor
provision), the undersigned registered owner of this Note hereby certifies with
respect to $____________ principal amount of the above-captioned Notes presented
or surrendered on the date hereof (the "Surrendered Notes") for registration of
transfer, or for exchange or conversion where the Notes or Common Stock issuable
upon such exchange or conversion, as the case may be, are to be registered in a
name other than that of the undersigned registered owner (each such transaction
being a "transfer"), that such transfer complies with the restrictive legend set
forth on the face of the Surrendered Notes for the reason checked below:
[ ] A transfer of the Surrendered Notes is made to the Company or
any Subsidiaries; or
[ ] The transfer of the Surrendered Notes complies with Rule 144A
under the U.S. Securities Act of 1933, as amended (the
"Securities Act"); or
[ ] The transfer of the Surrendered Notes is pursuant to an
effective registration statement under the Securities Act, or
[ ] The transfer of the Surrendered Notes is pursuant to another
available exemption from the registration requirement of the
Securities Act,
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Notes are not being transferred to an "affiliate"
of the Company as defined in Rule 144 under the Securities Act (an "Affiliate").
[ ] The transferee is an Affiliate of the Company.
DATE: _____________________
____________________________
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of
such registered owner must be stated.)
