Exhibit 4.4
EXECUTION VERSION
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SOLARFUN POWER HOLDINGS CO., LTD.
AS ISSUER
THE BANK OF NEW YORK
AS TRUSTEE
AND
AS CONVERSION AGENT
AND
AS PRINCIPAL PAYING AGENT
INDENTURE
DATED AS OF JANUARY 29, 2008
3.5% CONVERTIBLE SENIOR NOTES DUE 2018
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SOLARFUN POWER HOLDINGS CO., LTD.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF JANUARY 29, 2008
TRUST INDENTURE ACT SECTION INDENTURE SECTION
--------------------------- -----------------
Section 310(a)(1) 8.09
(a)(2) 8.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 8.09
(b) 8.08; 8.10; 8.11
(c) Not Applicable
Section 311(a) 8.13
(b) 8.13
Section 312(a) 6.01; 6.02(a)
(b) 6.02(b)
(c) 6.02(c)
Section 313(a) 6.03(a)
(b) 6.03(a)
(c) 6.03(a)
(d) 6.03(b)
Section 314(a) 6.04
(b) Not Applicable
(c)(1) 17.06
(c)(2) 17.06
(c)(3) Not Applicable
(d) Not Applicable
(e) 17.06
Section 315(a) 8.01
(b) 7.08
(c) 8.01
(d) 8.01
(e) 7.09
Section 316(a) 9.01
(a)(1)(A) 9.01; 7.01
(a)(1)(B) 7.07
(a)(2) Not Applicable
(b) 7.04
(c) 9.01
Section 317(a)(1) 7.02; 7.03; 7.05
(a)(2) 7.02
(b) 8.05; 13.01
Section 318(a) 1.02
(c) 1.02
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
3
TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions............................................... 2
SECTION 1.02. Incorporation by Reference of Trust Indenture Act......... 13
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. Designation and Amount.................................... 14
SECTION 2.02. Form of Notes............................................. 14
SECTION 2.03. Legends................................................... 15
SECTION 2.04. Date and Denomination of Notes............................ 19
SECTION 2.05. Execution, Authentication and Delivery of Notes........... 20
SECTION 2.06. Exchange and Registration of Transfer of Notes; Transfer
Generally; Depositary.................................. 20
SECTION 2.07. Special Transfer Provisions............................... 24
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Notes................ 25
SECTION 2.09. Temporary Notes........................................... 26
SECTION 2.10. Cancellation of Notes Paid, Etc........................... 27
SECTION 2.11. CUSIP Numbers............................................. 27
SECTION 2.12. Additional Notes; Repurchases............................. 27
ARTICLE 3
REDEMPTION
SECTION 3.01. Right to Redeem; Notice to Trustee........................ 28
SECTION 3.02. Selection of Notes to Be Redeemed......................... 28
SECTION 3.03. Notice of Redemption...................................... 29
SECTION 3.04. Effect of Notice of Redemption............................ 30
SECTION 3.05. Deposit of Redemption Price............................... 30
SECTION 3.06. Notes Redeemed in Part.................................... 30
ARTICLE 4
[INTENTIONALLY OMITTED]
ARTICLE 5
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. Payment of Principal, Premium and Interest................ 31
SECTION 5.02. Additional Interest....................................... 33
i
SECTION 5.03. Maintenance of Office or Agency........................... 33
SECTION 5.04. Appointments to Fill Vacancies in Trustee's Office........ 34
SECTION 5.05. Provisions as to Paying Agent............................. 34
SECTION 5.06. Existence................................................. 35
SECTION 5.07. Payment of Additional Amounts............................. 35
SECTION 5.08. Stay, Extension and Usury Laws............................ 38
SECTION 5.09. Compliance Certificate; Statements as to Defaults......... 38
SECTION 5.10. Further Instruments and Acts.............................. 38
ARTICLE 6
LISTS OF NOTEHOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 6.01. Lists of Noteholders...................................... 38
SECTION 6.02. Preservation and Disclosure of Lists...................... 39
SECTION 6.03. Reports by Trustee........................................ 39
SECTION 6.04. Reports by Company........................................ 40
ARTICLE 7
DEFAULTS AND REMEDIES
SECTION 7.01. Events of Default......................................... 40
SECTION 7.02. Payments of Notes on Default; Suit Therefor............... 43
SECTION 7.03. Application of Monies Collected by Trustee................ 45
SECTION 7.04. Proceedings by Noteholders................................ 45
SECTION 7.05. Proceedings by Trustee.................................... 46
SECTION 7.06. Remedies Cumulative and Continuing........................ 47
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders................................ 47
SECTION 7.08. Notice of Defaults........................................ 48
SECTION 7.09. Undertaking to Pay Costs.................................. 48
ARTICLE 8
CONCERNING THE TRUSTEE
SECTION 8.01. Duties and Responsibilities of Trustee.................... 48
SECTION 8.02. Reliance on Documents, Opinions, Etc...................... 51
SECTION 8.03. No Responsibility for Recitals, Etc....................... 53
SECTION 8.04. Trustee, Paying Agents, Conversion Agents or Registrar May
Own Notes.............................................. 53
SECTION 8.05. Monies to Be Held in Trust................................ 53
SECTION 8.06. Compensation and Indemnification of Trustee............... 53
SECTION 8.07. Officers' Certificate as Evidence......................... 55
SECTION 8.08. Conflicting Interests of Trustee.......................... 55
SECTION 8.09. Eligibility of Trustee.................................... 55
SECTION 8.10. Resignation or Removal of Trustee......................... 56
SECTION 8.11. Acceptance by Successor Trustee........................... 57
ii
SECTION 8.12. Succession by Merger, Etc................................. 58
SECTION 8.13. Limitation on Rights of Trustee as Creditor............... 58
SECTION 8.14. Trustee's Application for Instructions from the Company... 58
ARTICLE 9
CONCERNING THE NOTEHOLDERS
SECTION 9.01. Action by Noteholders..................................... 59
SECTION 9.02. Proof of Execution by Noteholders......................... 59
SECTION 9.03. Who Are Deemed Absolute Owners............................ 59
SECTION 9.04. Company-Owned Notes Disregarded........................... 60
SECTION 9.05. Revocation of Consents; Future Holders Bound.............. 61
ARTICLE 10
NOTEHOLDERS' MEETINGS
SECTION 10.01. Purpose of Meetings....................................... 61
SECTION 10.02. Call of Meetings by Trustee............................... 61
SECTION 10.03. Call of Meetings by Company or Noteholders................ 62
SECTION 10.04. Qualifications for Voting................................. 62
SECTION 10.05. Regulations............................................... 62
SECTION 10.06. Voting.................................................... 63
SECTION 10.07. No Delay of Rights by Meeting............................. 63
ARTICLE 11
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures without Consent of Noteholders.... 64
SECTION 11.02. Supplemental Indentures with Consent of Noteholders....... 65
SECTION 11.03. Effect of Supplemental Indentures......................... 66
SECTION 11.04. Notation on Notes......................................... 67
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished to Trustee................................... 67
ARTICLE 12
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 12.01. Company May Consolidate, Etc. on Certain Terms............ 67
SECTION 12.02. Successor Corporation to e Substituted.................... 68
SECTION 12.03. Officer's Certificate and Opinion of Counsel to Be Given
Trustee................................................ 69
ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture.................................... 69
SECTION 13.02. Deposited Monies to Be Held in Trust by Trustee........... 70
iii
SECTION 13.03. Paying Agent to Repay Monies Held......................... 70
SECTION 13.04. Return of Unclaimed Monies................................ 70
SECTION 13.05. Reinstatement............................................. 70
ARTICLE 14
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Notes Solely Corporate Obligations.......... 71
ARTICLE 15
CONVERSION OF NOTES
SECTION 15.01. Conversion Privilege...................................... 71
SECTION 15.02. Conversion Procedure...................................... 73
SECTION 15.03. [Intentionally Omitted]................................... 77
SECTION 15.04. Adjustment of Conversion Rate............................. 77
SECTION 15.05. Ordinary Shares to Be Fully Paid.......................... 88
SECTION 15.06. Conversion into ADSs...................................... 88
SECTION 15.07. Effect of Reclassification, Consolidation, Merger or
Sale................................................... 89
SECTION 15.08. Certain Covenants......................................... 90
SECTION 15.09. Responsibility of Trustee................................. 91
SECTION 15.10. Notice to Holders Prior to Certain Actions................ 91
SECTION 15.11. Ordinary Share Rights Plans............................... 92
ARTICLE 16
PURCHASE OF NOTES AT OPTION OF HOLDERS
SECTION 16.01. Purchase of Notes at Option of the Holder on Specified
Dates.................................................. 93
SECTION 16.02. Purchase at Option of Holders Upon a Fundamental Change... 98
ARTICLE 17
MISCELLANEOUS PROVISIONS
SECTION 17.01. Provisions Binding on Company's Successors................ 102
SECTION 17.02. Official Acts by Successor Corporation.................... 102
SECTION 17.03. Addresses for Notices, Etc................................ 103
SECTION 17.04. Governing Law............................................. 103
SECTION 17.05. Submission to Jurisdiction; Waiver of Immunity............ 104
SECTION 17.06. Evidence of Compliance with Conditions Precedent;
Certificates and Opinions of Counsel to Trustee........ 105
SECTION 17.07. Legal Holidays............................................ 105
SECTION 17.08. No Security Interest Created.............................. 106
SECTION 17.09. Benefits of Indenture..................................... 106
SECTION 17.10. Table of Contents, Headings, Etc.......................... 106
iv
SECTION 17.11. Authenticating Agent...................................... 106
SECTION 17.12. Currency Indemnity........................................ 107
SECTION 17.13. Execution in Counterparts................................. 108
SECTION 17.14. Qualification of Indenture................................ 108
SECTION 17.15. Calculations.............................................. 108
v
INDENTURE dated as of January 29, 2008 between Solarfun Power Holdings Co.,
Ltd., an exempted company incorporated with limited liability under the laws of
the Cayman Islands, as issuer (hereinafter sometimes called the "COMPANY", as
more fully set forth in Section 1.01), The Bank of New York, a New York banking
corporation, as trustee (hereinafter sometimes called the "TRUSTEE", as more
fully set forth in Section 1.01) and as principal paying agent (hereinafter
sometimes called the "PRINCIPAL PAYING AGENT" as more fully set forth in Section
1.01).
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue of its 3.5% Convertible Senior Notes due 2018 (hereinafter sometimes
called the "NOTES"), initially in an aggregate principal amount not to exceed
US$150,000,000 (or US$172,500,000 if the Initial Purchasers exercise their
option to purchase additional Notes in full as set forth in the Purchase
Agreement), and in order to provide the terms and conditions upon which the
Notes are to be authenticated, issued and delivered, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne by the
Notes, a form of assignment, a form of the Fundamental Change Purchase Notice, a
form of the Put Right Purchase Notice, a form of Conversion Notice and
certificate of transfer to be borne by the Notes are to be substantially in the
forms hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when executed by
the Company and authenticated and delivered by the Trustee or a duly authorized
authenticating agent, as in this Indenture provided, the valid, binding and
legal obligations of the Company, and to constitute these presents a valid
agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are,
and are to be, authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Notes by the holders thereof,
the Company covenants and agrees with the Principal Paying Agent and the Trustee
for the equal and proportionate benefit of the respective holders from time to
time of the Notes (except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.
(a) The terms defined in this Section 1.01 (except as herein otherwise
expressly provided or unless the context otherwise requires) for all purposes of
this Indenture and of any indenture supplemental hereto shall have the
respective meanings specified in this Section 1.01. All other terms used in this
Indenture, which are defined in the Trust Indenture Act or which are by
reference therein defined in the Securities Act (except as herein otherwise
expressly provided or unless the context otherwise requires) shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of the execution of this Indenture. If
any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in this Indenture by any of the
provisions of the Trust Indenture Act, such required provision shall control.
The words "herein," "hereof," "hereunder," and words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
Subdivision. The terms defined in this Article include the plural as well as the
singular.
"ADDITIONAL ADSS" shall have the meaning specified in Section 15.01(b).
"ADDITIONAL AMOUNTS" shall have the meaning specified in Section 5.07.
"ADDITIONAL INTEREST" means all amounts, if any, payable pursuant to
Section 2(f) of the Registration Rights Agreement.
"ADJUSTMENT DETERMINATION DATE" shall have the meaning specified in Section
15.04(l).
"ADJUSTMENT EVENT" shall have the meaning specified in Section 15.04(l).
"ADR" means an American Depositary Receipt, evidencing one or more ADSs,
issued pursuant to the Deposit Agreement.
"ADS" means an American Depositary Share, issued pursuant to the Deposit
Agreement, currently representing five Ordinary Shares of the Company and
deposited with the ADS Custodian.
"ADS CUSTODIAN" means The Bank of New York, with respect to the ADSs issued
pursuant to the Deposit Agreement, or any successor entity thereto.
"ADS DEPOSITARY" means The Bank of New York, as depositary for the ADSs.
2
"ADS PRICE" means the price paid in the Make-whole Change of Control per
Ordinary Share, translated, if necessary, into U.S. Dollars at the exchange rate
in effect on such date and multiplied by the number of Ordinary Shares
represented by each ADS then applicable in connection with a Make-Whole Change
in Control pursuant to which Additional ADSs shall be added to the Conversion
Rate as set forth in Section 15.01(b) hereof, which shall be equal to (i) if
holders of Ordinary Shares receive only cash in such Make-Whole Change in
Control, the cash amount paid per Ordinary Share, converted into U.S. Dollars at
the exchange rate in effect on the effective date of the Make-Whole Change in
Control and multiplied by the number of Ordinary Shares represented by each ADS
then applicable and (ii) in all other cases, the average of the Last Reported
Sale Prices of the ADSs over the five consecutive Trading Day period ending on
the Trading Day preceding the Effective Date of the Make-Whole Change in
Control.
"AFFILIATE" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"CONTROL," when used with respect to any specified person means the power to
direct 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.
"AGENT MEMBER" means a member of, or a participant in, the Depositary.
"BENEFICIAL OWNER" and "BENEFICIAL OWNERSHIP" means as determined in
accordance with Rule 13d-3 and 13d-5 under the Exchange Act.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or a
committee of such Board duly authorized to act for it hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors, or duly authorized committee thereof (to the extent permitted by
applicable law), and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY" means any day, except a Saturday, Sunday or legal holiday on
which banking institutions in The City of New York or the city in which the
Corporate Trust Office is located are authorized or obligated by law or
executive order to close.
3
"CAPITAL STOCK" means, for any entity, any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that entity.
"CHANGE IN CONTROL" means either of the following events: (a) any person or
group, other than the Company, its Subsidiaries or any employee benefit plan of
the Company or its Subsidiaries, files a Schedule 13D or Schedule TO (or any
successor schedule, form or report) pursuant to the Exchange Act disclosing that
such person or group has become the beneficial owner of the Company's Capital
Stock with a majority of the total voting power of all of outstanding Capital
Stock that is entitled to vote generally in the election of the Board of
Directors (the "VOTING SECURITIES"), unless such beneficial ownership (i) arises
solely as a result of a revocable proxy delivered in response to a proxy or
consent solicitation made pursuant to the applicable rules and regulations under
the Exchange Act, and (ii) is not also then reportable on Schedule 13D (or any
successor schedule) under the Exchange Act; or (b) the Company consolidates with
or merges with or into another person (other than one of its Subsidiaries), or
sells, conveys, transfers or leases all or substantially all of its properties
and assets to any person (other than one of its Subsidiaries), or any person
(other than one of its Subsidiaries) consolidates with or merges with or into
the Company, and the Company's outstanding Voting Securities are reclassified
into, converted for or converted into the right to receive any property or
security; provided that none of these circumstances will be a Change in Control
if persons that beneficially own the Voting Securities immediately prior to the
transaction own, directly or indirectly, a majority of the Voting Securities of
the surviving or transferee person immediately after the transaction in
substantially the same proportion as their ownership of the Voting Securities
immediately prior to the transaction. Notwithstanding the foregoing, it will not
constitute a Change in Control if at least 90% of the consideration for the
Ordinary Shares (excluding cash payments for fractional shares and cash payments
made in respect of dissenters' appraisal rights and cash payment of the required
cash payment, if any) in the transaction or transactions constituting the Change
in Control consists of securities traded on a United States national securities
exchange or quoted on the NASDAQ Global 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 securities. For purposes of this definition, (1) the terms "person"
and "group" have the meanings given by Sections 13(d) and 14(d) of the Exchange
Act or any successor provisions, (2) the term "group" includes any group acting
for the purpose of acquiring, holding or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act or any successor provision
and (c) the term "beneficial owner" shall be determined in accordance with Rules
13d-3 and 13d-5 under the Exchange Act or any successor provisions, except that
a person will be deemed to have beneficial ownership of all shares of Capital
Stock that person has
4
the right to acquire irrespective of whether that right is exercisable
immediately or only after the passage of time.
"CLOSE OF BUSINESS" means 5:00 p.m. (New York City time).
"CODE" means the U.S. Internal Revenue Code of 1983, as amended.
"COMMISSION" means the Securities and Exchange Commission.
"COMPANY" means Solarfun Power Holdings Co., Ltd., an exempted company
incorporated with limited liability under the laws of the Cayman Islands, and
subject to the provisions of Article 12, shall include its successors and
assigns.
"COMPANY ORDER" means a written order signed in the name of the Company,
signed by any two Officers.
"COMPANY PUT RIGHT NOTICE" shall have the meaning specified in Section
16.01(b).
"COMPANY PUT RIGHT NOTICE DATE" shall have the meaning specified in Section
16.01(b).
"CONVERSION AGENT" shall have the meaning specified in Section 5.03.
"CONVERSION DATE" shall have the meaning specified in Section 15.02(c).
"CONVERSION NOTICE" shall have the meaning specified in Section 15.02(c).
"CONVERSION OBLIGATION" shall have the meaning specified in Section
15.01(a).
"CONVERSION PRICE" means as of any date US$1,000 divided by the Conversion
Rate as of such date.
"CONVERSION RATE" shall have the meaning specified in Section 15.01(a).
"CORPORATE TRUST OFFICE" or other similar term means the principal
corporate trust office of the Trustee at which at any particular time its
corporate trust business shall be principally administered, which office is, at
the date as of which this Indenture is dated, located at 000 Xxxxxxx Xxxxxx,
00xx Xxxxx Xxxx, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx of America.
5
"CUSTODIAN" means The Bank of New York, as custodian for The Depository
Trust Company, with respect to the Notes in global form, or any successor entity
thereto.
"DEFAULT" means any event that is, or after notice or passage of time, or
both, would be, an Event of Default.
"DEFAULTED INTEREST" shall have the meaning specified in Section 5.01.
"DEPOSIT AGREEMENT" means the deposit agreement dated December 19, 2006,
among the Company, the ADS Depositary, and the owners and beneficial owners from
time to time of the ADRs issued thereunder or, if amended or supplemented as
provided therein, as so amended or supplemented.
"DEPOSITARY" means, with respect to the Notes issuable or issued in whole
or in part in global form, the person specified in Section 2.06(e) as the
Depositary with respect to such Notes, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, "DEPOSITARY" shall mean or include such successor.
"DISTRIBUTED PROPERTY" shall have the meaning specified in Section
15.04(c).
"DTC" means The Depository Trust Company and its successors.
"EFFECTIVE DATE" shall have the meaning specified in Section 15.01(b).
"EVENT OF DEFAULT" means, with respect to the Notes, any event specified in
Section 7.01, continued for the period of time, if any, and after the giving of
notice, if any, therein designated.
"EX-DIVIDEND DATE" means, with respect to any issuance or distribution on
the Ordinary Shares or any other equity security, the first date on which the
Ordinary Shares or such other equity security trade on the applicable exchange
or in the applicable market, regular way, without the right to receive such
issuance, dividend or distribution.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"FUNDAMENTAL CHANGE" shall be deemed to have occurred upon a Change in
Control or a Termination of Trading.
"FUNDAMENTAL CHANGE COMPANY NOTICE" shall have the meaning specified in
Section 16.02(b).
6
"FUNDAMENTAL CHANGE EXPIRATION TIME" shall have the meaning specified in
Section 16.02(b).
"FUNDAMENTAL CHANGE PURCHASE DATE" shall have the meaning specified in
Section 16.02(a).
"FUNDAMENTAL CHANGE PURCHASE NOTICE" shall have the meaning specified in
Section 16.02(a)(i).
"FUNDAMENTAL CHANGE PURCHASE PRICE" shall have the meaning specified in
Section 16.02(a).
"GLOBAL NOTE" shall have the meaning specified in Section 2.06(b).
"INDENTURE" means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or supplemented.
"INITIAL PURCHASERS" means Xxxxxx Xxxxxxx & Co. Incorporated, Xxxxxxxxx &
Company, Inc and PiperJaffray & Co.
"INTEREST" on a Note means the interest on such Note (including any
Additional Amounts payable by the Company in respect of such interest).
"INTEREST PAYMENT DATE" means January 15 and July 15 of each year,
beginning on July 15, 2008.
"LAST REPORTED SALE PRICE" means, with respect to the ADSs or any other
securities for which a Last Reported Sale Price must be determined, on any date,
the closing sale price per ADS or unit of such other securities (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 as reported on the NASDAQ Global Market or other principal
U.S. securities exchange on which the ADSs or such other securities are traded.
If the ADSs or such other securities are not listed for trading on a United
States national or regional securities exchange and not reported by the NASDAQ
Global Market on the relevant date, the Last Reported Sale Price of the ADSs or
such other securities shall be the last quoted bid price per ADS or such other
securities are in the over-the-counter market on the relevant date, as reported
by the National Quotation Bureau or similar organization. If the ADSs or such
other securities are not quoted, the Last Reported Sale Price of the ADSs or
such other securities shall be the average of the mid-point of the last bid and
asked prices for the ADSs or such other securities on the relevant date from
each of at least three U.S. nationally recognized independent investment banking
firms selected from time to time by the Board of Directors for that purpose. The
Last Reported Sale Price shall be determined without reference to extended or
after hours trading.
7
"MAKE-WHOLE CHANGE IN CONTROL" means either of (a) any person or group,
other than the Company, its Subsidiaries or any employee benefit plan of Company
or its Subsidiaries, files a Schedule 13D or Schedule TO (or any successor
schedule, form or report) pursuant to the Exchange Act disclosing that such
person or group has become the beneficial owner of the Company's Capital Stock
with a majority of the total voting power of all of the Company's outstanding
Voting Securities, unless such beneficial ownership (i) arises solely as a
result of a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to the applicable rules and regulations under the
Exchange Act, and (ii) is not also then reportable on Schedule 13D (or any
successor schedule) under the Exchange Act or (b) the Company consolidates with
or merges with or into another person (other than one of its Subsidiaries), or
sells, conveys, transfers or leases all or substantially all of its properties
and assets to any person (other than one of its Subsidiaries), or any person
(other than one of its Subsidiaries) consolidates with or merges with or into
the Company, and the Company's outstanding Voting Securities are reclassified
into, converted for or converted into the right to receive any property or
security. Notwithstanding the foregoing, it will not constitute a Make-Whole
Change in Control if at least 90% of the consideration for the Company's
Ordinary Shares (excluding cash payments for fractional shares and cash payments
made in respect of dissenters' appraisal rights and cash payment of the required
cash payment, if any) in the transaction or transactions constituting the
Make-Whole Change in Control consists of securities traded or quoted on a United
States national securities exchange, or which will be so traded when issued or
exchanged in connection with the Make-Whole Change in Control, and as a result
of such transaction or transactions the Notes become convertible solely into
such securities. For purposes of this definition, (1) the terms "person" and
"group" have the meanings given by Sections 13(d) and 14(d) of the Exchange Act
or any successor provisions, (2) the term "group" includes any group acting for
the purpose of acquiring, holding or disposing of securities within the meaning
of Rule 13d-5(b)(1) under the Exchange Act or any successor provision and (c)
the term "beneficial owner" shall be determined in accordance with Rules 13d-3
and 13d-5 under the Exchange Act or any successor provisions, except that a
person will be deemed to have beneficial ownership of all shares of Capital
Stock that person has the right to acquire irrespective of whether that right is
exercisable immediately or only after the passage of time.
"MARKET DISRUPTION EVENT" means the occurrence or existence for more than a
one-half hour period in the aggregate on any Trading Day for the ADSs of any
suspension or limitation imposed on trading (by reason of movements in price
exceeding limits permitted by the stock exchange or otherwise) in the ADSs or in
any options, contracts or future contracts relating solely to the ADSs, and such
suspension or limitation occurs or exists at any time before 1:00 p.m. (New York
City time) on such day.
8
"MATURITY DATE" means January 15, 2018.
"MERGER EVENT" shall have the meaning specified in Section 15.07.
"NOTE" or "NOTES" means any note or notes, as the case may be,
authenticated and delivered under this Indenture.
"NOTEHOLDER" or "HOLDER," as applied to any Note, or other similar terms
(but excluding the term "beneficial holder"), means any person in whose name at
the time a particular Note is registered on the Note register.
"NOTE REGISTER" shall have the meaning specified in Section 2.06(a).
"NOTE REGISTRAR" shall have the meaning specified in Section 2.06(a).
"OFFICER" means the president or chief executive officer, any vice
president, the chief financial officer of the Company, or any other Person duly
appointed by the shareholders of the Company, or the Board of Directors to
perform corporate duties.
"OFFICERS' CERTIFICATE," when used with respect to the Company, means a
certificate signed by any two Officers of the Company and delivered to the
Trustee.
"OFFERING MEMORANDUM" means the offering memorandum dated January 23, 2008
relating to the offering by the Company of the Notes.
"OPINION OF COUNSEL" means an opinion in writing signed by legal counsel,
who may be an employee of or counsel to the Company, or other counsel reasonably
acceptable to the Trustee, which is delivered to the Trustee. Each such opinion
shall include the statements provided for in Section 17.05 if and to the extent
required by the provisions of such Section.
"ORDINARY SHARES" means ordinary shares of the Company, par value US$0.0001
per share, at the date of this Indenture or shares of any class or classes
resulting from any reclassification or reclassifications thereof and that have
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and that are not subject to redemption by the Company; provided that if at any
time there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion 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.
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"OUTSTANDING," when used with reference to Notes, shall, subject to the
provisions of Section 9.04, mean, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or accepted by the Trustee
for cancellation;
(ii) Notes, or portions thereof, for the payment or repurchase of
which monies in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company) or shall have been set
aside and segregated in trust by the Company (if the Company shall act as its
own Paying Agent);
(iii) Notes in lieu of which, or in substitution for which, other Notes
shall have been authenticated and delivered pursuant to the terms of Section
2.08 unless proof satisfactory to the Trustee is presented that any such Notes
are held by protected purchasers in due course; and
(iv) Notes converted pursuant to Article 15.
"PAYING AGENT" shall have the meaning specified in Section 5.03.
"PERSON" means an individual, a corporation, a limited liability company,
an association, a partnership, a joint venture, a joint stock company, a trust,
an unincorporated organization or a government or an agency or a political
subdivision thereof.
"PRC" means the People's Republic of China.
"PREDECESSOR NOTE" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.08 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note that it replaces.
"PRINCIPAL PAYING AGENT" means The Bank of New York, and its successors and
any corporation resulting from or surviving any consolidation or merger to which
it or its successors may be a party or such other paying agent as the Company
shall appoint.
"PROCESS AGENT" shall have the meaning assigned to it in Section 17.05.
"PURCHASE AGREEMENT" means that certain Purchase Agreement, dated January
23, 2008, between the Company and the Initial Purchasers.
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"PUT RIGHT PURCHASE DATE" shall have the meaning assigned to it in Section
16.01(a).
"PUT RIGHT PURCHASE NOTICE" shall have the meaning assigned to it in
Section 16.01(a)(i).
"PUT RIGHT PURCHASE PRICE" shall have the meaning assigned to it in Section
16.01(a).
"QIB" means any "qualified institutional buyer" (as such term is defined in
Rule 144A).
"RECORD DATE," with respect to any Interest Payment Date, shall have the
meaning specified in Section 5.01.
"REDEMPTION DATE" means the date fixed by the Company for the redemption of
all or any portion of the Notes in accordance with the provision of Article 3.
"REDEMPTION PRICE" shall have the meaning specified in Section 3.01.
"REFERENCE PROPERTY" shall have the meaning specified in Section 15.07(b).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement
dated as of the date hereof among the Company and the Initial Purchasers.
"RELEVANT TAXING JURISDICTION" has the meaning specified in Section 5.07.
"RESPONSIBLE OFFICER," when used with respect to the Trustee, shall mean an
officer of the Trustee in the Corporate Trust Office, having direct
responsibility for the administration of this Indenture, and also, with respect
to a particular matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"RESTRICTED SECURITIES" shall have the meaning specified in Section 2.03.
"RESTRICTED SECURITIES LEGEND" shall have the meaning specified in Section
2.03.
"RULE 144" means Rule 144 under the Securities Act.
"RULE 144A" means Rule 144A under the Securities Act.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"SPIN-OFF" shall have the meaning specified in Section 15.04(c).
"SHARE ISSUANCE AND REPURCHASE AGREEMENT" means that certain Share Issuance
and Repurchase Agreement dated January 23, 2008 between the Company and Xxxxxx
Xxxxxxx & Co. International plc.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary of the Company (or any
successor) which, at the time of determination, either (a) had assets which, as
of the date of the Company's (or such successor's) most recent quarterly
consolidated balance sheet, constituted at least 10% of the Company's (or such
successor's) total assets on a consolidated basis as of such date or (b) had
revenues for the 12-month period ending on the date of the Company's (or such
successor's) most recent quarterly consolidated statement of income which
constituted at least 10% of the Company's (or such successor's) total revenues
on a consolidated basis for such period; provided that Jiangsu Yangguang Solar
Technology Co. Ltd. and any of its successors shall at all times be significant
subsidiaries.
"SUBSIDIARY" of the Company means (i) a corporation a majority of whose
Capital Stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by the Company, by the
Company and one or more Subsidiaries of the Company or by one or more
Subsidiaries of the Company or (ii) any other person (other than a corporation)
in which the Company, one or more Subsidiaries of the Company or the Company and
one or more Subsidiaries of the Company, directly or indirectly, at the date of
determination thereof, has greater than a 50% ownership interest.
"SUCCESSOR COMPANY" shall have the meaning specified in Section 12.01(a).
"TERMINATION OF TRADING" shall be deemed to have occurred if the ADSs, or
other securities into which the Notes are then convertible, are not listed for
trading on a U.S. national securities exchange nor approved for trading on the
NASDAQ Global Market, except as a result of a merger involving us or a tender
offer or exchange offer for the Ordinary Shares, ADSs or others securities into
which the Notes are then convertible.
"TRADING DAY" means a day during which (a) trading in the ADSs generally
occurs, (b) there is no Market Disruption Event and (c) a Last Reported Sale
Price for the ADSs (other than a Last Reported Sale Price referred to in the
third sentence of such definition) is available for such day; provided that if
the
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ADSs are not admitted for trading or quotation on or by any exchange, bureau or
other organization referred to in the definition of Last Reported Sale Price
(excluding the third sentence of that definition), Trading Day shall mean any
Business Day.
"TRIGGER EVENT" shall have the meaning specified in Section 15.04(c).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as amended, as
it was in force at the date of execution of this Indenture; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after the date
hereof, the term "TRUST INDENTURE ACT" shall mean, to the extent required by
such amendment, the Trust Indenture Act of 1939, as so amended.
"TRUSTEE" means The Bank of New York, and its successors and any
corporation resulting from or surviving any consolidation or merger to which it
or its successors may be a party and any successor trustee at the time serving
as successor trustee hereunder.
"U.S. DOLLARS" and "US$" each mean the currency of the United States of
America.
"VALUATION PERIOD" shall have the meaning specified in Section 15.04(c).
"VOTING SECURITIES" shall have the meaning specified in the definition of
"Change in Control" in this Section 1.01.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the Trust
Indenture Act, which are incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms have the following meanings:
"INDENTURE SECURITIES" means the Notes.
"INDENTURE SECURITY HOLDER" means a holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the indenture securities means the Company and any other
obligor on the indenture securities.
All other terms in this Indenture that are defined by the Trust Indenture
Act, defined by it by reference to another statute or defined by Commission rule
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have the meanings assigned to them by such definitions. If any provision hereof
limits, qualifies or conflicts with another provision hereof which is required
to be included in this Indenture by the Trust Indenture Act, such required
provision shall control.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. Designation and Amount. The Notes shall be designated as the
"3.5% Convertible Senior Notes due 2018." The aggregate principal amount of
Notes that may be authenticated and delivered under this Indenture is initially
limited to US$150,000,000 (or US$172,500,000 if the Initial Purchasers exercise
their option to purchase additional Notes in full as set forth in the Purchase
Agreement), subject to Section 2.12 and except for Notes authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of
other Notes pursuant to Section 2.06, Section 2.08, Section 3.06, Section 11.04,
Section 15.02, Section 16.01 and Section 16.02 hereof.
SECTION 2.02. Form of Notes. The Notes and the Trustee's certificate of
authentication to be borne by such Notes shall be substantially in the form set
forth in Exhibit A, with such applicable legends as are provided for in Section
2.03(a).
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends or endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, or to conform to usage or to indicate any
special limitations or restrictions to which any particular Notes are subject.
The Notes shall be issued initially in the form of one or more permanent
Global Notes with the applicable legends as provided in Section 2.03. Each
Global Note shall represent such principal amount of the outstanding Notes as
shall be specified therein and 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 increased or reduced to reflect purchases,
conversions, transfers or exchanges permitted hereby. Any endorsement of a
Global Note to reflect the amount of any increase or decrease in the amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Custodian, at the direction
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of the Trustee, in such manner and upon instructions given by the holder of such
Notes in accordance with this Indenture. Payment of principal and accrued and
unpaid interest on the Global Note shall be made to the holder of such Note on
the date of payment, unless a record date or other means of determining holders
eligible to receive payment is provided for herein.
The terms and provisions contained in the forms of Note attached as Exhibit
A hereto are incorporated herein and shall constitute, and are hereby expressly
made, a part of this Indenture and to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
SECTION 2.03. Legends. Each Note issued hereunder and each ADS representing
Ordinary Shares issued upon conversion of such Note (collectively, the
"RESTRICTED SECURITIES") shall, upon issuance, bear the legend set forth in
Section 2.03(a) or 2.03(b), as applicable (each a "RESTRICTED SECURITIES
LEGEND"), and such legend shall not be removed except as provided in Section
2.03(c). Each such Restricted Security that bears or is required to bear the
applicable Restricted Securities Legend shall be subject to the restrictions on
transfer set forth in this Section 2.03 (including the Restricted Securities
Legend set forth below), and the holder of each such Restricted Security, by
such holder's acceptance thereof, shall be deemed to have agreed to be bound by
all such restrictions on transfer.
As used in Section 2.03, the term "TRANSFER" encompasses any sale, pledge,
transfer or other disposition whatsoever of any Restricted Security.
(a) Restricted Securities Legend for the Notes. Except as provided in
Section 2.03(c), any certificate evidencing such Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear a Restricted Securities
Legend in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A
"QUALIFIED INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH
RESPECT TO EACH SUCH ACCOUNT, AND
15
(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN
PRIOR TO THE DATE THAT IS THE LATER OF (X) ONE YEAR AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF
THIS SECURITY) OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K)
UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER, AND (Y)
SUCH LATER DATE, IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAW, EXCEPT ONLY:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME
EFFECTIVE UNDER THE SECURITIES ACT, OR
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, OR
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN OFFSHORE
TRANSACTIONS WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES
ACT, OR
(E) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) or
(2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH
MAY BE OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR
TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE, THE
COMPANY AND THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH
LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE
REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED
16
TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE
STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF
ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF THE NOTE ARE
SUBJECT TO THE DEPOSIT AGREEMENT (AS SUPPLEMENTED) DATED DECEMBER 19, 2006
BETWEEN THE COMPANY AND THE BANK OF NEW YORK, AS DEPOSITARY. IN CERTAIN
CIRCUMSTANCES, THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF
THE NOTE WILL BE ISSUED AND DELIVERED IN THE FORM OF RESTRICTED AMERICAN
DEPOSITARY SHARES AND WILL BE SUBJECT TO TRANSFER RESTRICTIONS AS AGREED TO
BETWEEN THE DEPOSITARY AND THE COMPANY.
IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY ENGAGE IN
ANY HEDGING TRANSACTIONS WITH REGARD TO THE NOTES, THE AMERICAN DEPOSITARY
SHARES ISSUABLE UPON CONVERSION OF THE NOTE OR THE ORDINARY SHARES
REPRESENTED BY THE AMERICAN DEPOSITARY SHARES EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT.
(b) Restricted Securities Legend for the ADSs Issued Upon Conversion of the
Notes. Each ADS representing Ordinary Shares issued upon conversion of Notes
bearing a Restricted Securities Legend will, subject to the availability of a
Registration Statement (as defined in the Registration Rights Agreement) and
registration thereunder as set forth in the Registration Rights Agreement, bear
the following legend:
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO THE ISSUER;
(B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A ADOPTED UNDER THE
SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS
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GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN
COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2)
IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY FURNISH TO THE TRANSFER
AGENT AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS MAY BE REQUIRED 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.
(c) Removal of the Restricted Securities Legends. The Restricted Securities
Legend may be removed from any Note or any ADS representing Ordinary Shares
issued upon conversion of any Note if there is delivered to the Company such
satisfactory evidence, which may include an opinion of independent counsel, as
may be reasonably required by the Company, that neither such legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
of such Note or ADS issued upon conversion of Notes, as the case may be, will
not violate the registration requirements of the Securities Act or the
qualification requirements under any state securities laws. Upon provision of
such satisfactory evidence, at the written direction of the Company, (x) in the
case of a Note, the Trustee shall authenticate and deliver in exchange for such
Note another Note or Notes having an equal aggregate principal amount that does
not bear such legend or (y) in the case of an ADS representing Ordinary Shares,
the ADS Depositary shall authenticate and deliver in exchange for ADS or ADSs
bearing such legend, one or more new ADSs that do not bear such legend. If the
Restricted Securities Legend has been removed from a Note or ADS representing
Ordinary Shares issued upon conversion of any Note as provided above, no other
Note issued in exchange for all or any part of such Note, or no other ADS issued
in exchange for such ADS, shall bear such legend, unless the Company has
reasonable cause to believe that such other Note is a "restricted security" (or
such ADSs are "restricted securities") within the meaning of Rule 144 and
instructs the Trustee in writing to cause a Restricted Securities Legend to
appear thereon.
Any Note (or Note issued in exchange or substitution therefor) as to which
the conditions for removal of the Restricted Securities Legend set forth in
Section 2.03(a) as set forth therein have been satisfied may, upon surrender of
such Note for exchange to the Note Registrar in accordance with the provisions
of Section 2.06(a), be exchanged for a new Note or Notes, of like tenor and
aggregate principal amount, which shall not bear the Restricted Securities
Legend required by Section 2.03(a).
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Any ADS representing Ordinary Shares issued upon conversion of any Note as
to which the conditions for removal of the Restricted Securities Legend set
forth in Section 2.03(b) have been satisfied may, upon surrender of the ADS for
exchange in accordance with the procedures of the ADS Depositary, be exchanged
for a new ADS, which shall not bear the Restricted Securities Legend.
(d) Global Note Legend. Each Global Note shall also bear the following
legend (the "GLOBAL NOTE LEGEND") on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
THE INDENTURE REFERRED TO IN THE TERMS OF THE NOTE ATTACHED HERETO.
(e) Legend for Definitive Notes. Definitive Notes, in addition to the
legend set forth in Section 2.03(a), will also bear a legend substantially in
the following form:
THIS SECURITY WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST IN
A GLOBAL NOTE UNLESS THE HOLDER OF THIS SECURITY, SUBSEQUENT TO SUCH
EXCHANGE, WILL HOLD NO NOTES.
SECTION 2.04. Date and Denomination of Notes. The Notes shall be issuable
initially in registered form without coupons in denominations of $1,000
19
principal amount and integral multiples thereof. Each Note shall be dated the
date of its authentication and shall bear interest from the date specified on
the face of the form of Note attached as Exhibit A hereto, as applicable.
SECTION 2.05. Execution, Authentication and Delivery of Notes. The Notes
shall be signed in the name and on behalf of the Company by the manual or
facsimile signature of (a) its Chief Executive Officer together with any of its
executive officers; or (b) any two of its executive officers.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Notes executed by the Company to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Notes, and the Trustee in accordance with such Company Order
shall authenticate and deliver such Notes, without any further action by the
Company hereunder, provided that the Trustee shall have the right to decline to
authenticate and deliver any such Notes that the Trustee in good faith
determines that such authentication or delivery may not lawfully be taken.
Only such Notes as shall bear thereon a certificate of authentication
substantially in the form set forth on the form of Note attached as Exhibit A
hereto, manually executed by the Trustee (or an authenticating agent appointed
by the Trustee as provided by Section 17.11), shall be entitled to the benefits
of this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee (or such an authenticating agent) upon any Note executed by the
Company shall be conclusive evidence that the Note so authenticated has been
duly authenticated and delivered hereunder and that the holder is entitled to
the benefits of this Indenture.
In case any officer of the Company who shall have signed any of the Notes
shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company; and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
SECTION 2.06. Exchange and Registration of Transfer of Notes; Transfer
Generally; Depositary.
(a) The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company designated pursuant to Section 5.03 being herein sometimes
20
collectively referred to as the "NOTE REGISTER") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. Such register shall be in
written form or in any form capable of being converted into written form within
a reasonable period of time. The Trustee is hereby initially appointed "NOTE
REGISTRAR" for the purpose of registering Notes and transfers of Notes as herein
provided. The Company may appoint one or more co-registrars in accordance with
Section 5.03.
Upon surrender for registration of transfer of any Note to the Note
Registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.06, 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 denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
Notes may be exchanged for other Notes of any authorized denominations and
of a like aggregate principal amount, upon surrender of such Notes to be
exchanged at any such office or agency maintained by the Company pursuant to
Section 5.03. Whenever any Notes are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Notes which
the Noteholder making the exchange is entitled to receive, bearing registration
numbers not contemporaneously outstanding.
All Notes presented or surrendered for registration of transfer or for
exchange, repurchase or conversion shall (if so required by the Company, the
Trustee, the Note Registrar or any co-registrar) be duly endorsed, or be
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company and duly executed, by the Noteholder thereof or his
attorney-in-fact duly authorized in writing.
No service charge shall be charged to the Noteholder for any exchange or
registration of transfer of Notes, but the Company may require payment of a sum
sufficient to cover any tax, assessments or other governmental charges that may
be imposed in connection therewith.
None of the Company, the Trustee, the Note Registrar or any co-registrar
shall be required to exchange or register a transfer of (a) any Notes
surrendered for conversion or, if a portion of any Note is surrendered for
conversion, such portion thereof surrendered for conversion or (b) any Notes, or
a portion of any Note, surrendered for repurchase (and not withdrawn) except in
accordance with Article 15 for conversion and Article 16 for repurchase hereof,
respectively.
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All Notes issued upon any registration of transfer or exchange of Notes in
accordance with this Indenture shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this Indenture
as the Notes surrendered upon such registration of transfer or exchange.
(b) So long as the Notes are eligible for book-entry settlement with the
Depositary, unless otherwise required by law, all Notes shall be represented by
one or more Notes in global form (each, a "GLOBAL NOTE") registered in the name
of the Depositary or the nominee of the Depositary. The transfer and exchange of
beneficial interests in a Global Note, which does not involve the issuance of a
Definitive Note, shall be effected through the Depositary (but not the Trustee
or the Custodian) in accordance with this Indenture (including the restrictions
on transfer set forth herein) and the procedures of the Depositary therefor.
(c) Any Global Note shall initially bear (i) the Restricted Securities
Legend set forth in Section 2.03(a) and (ii) the Global Note Legend set forth in
Section 2.03(d), and may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Indenture as may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. to comply with any applicable
law or any regulation thereunder or with the rules and regulations of any
securities exchange or automated quotation system upon which the Notes may be
listed or traded or designated for issuance or to conform with any usage with
respect thereto, or to indicate any special limitations or restrictions to which
any particular Notes are subject.
(d) Notwithstanding any other provisions of this Indenture, a Global Note
may not be transferred as a whole or in part except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary and except (1) as
set forth in the second paragraph of this Section 2.06(e) and (2) transfers of
portions thereof in definitive form may be made upon request of an Agent Member
(for itself or on behalf of a beneficial owner) by written notice given to the
Trustee by or on behalf of the Depositary in accordance with customary
procedures of the Depositary and in compliance with this Section.
Agent Members will have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary, and the Depositary 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, the Depositary or its nominee may
grant proxies and otherwise authorize any Person (including any Agent Member and
any Person that holds a beneficial interest in a Global Note through an Agent
22
Member) to take any action which a Holder is entitled to take under this
Indenture or the Notes, and nothing herein will impair, as between the
Depositary and its Agent Members, the operation of customary practices governing
the exercise of the rights of a holder of any security.
(e) The Depositary shall be a clearing agency registered under the Exchange
Act. The Company initially appoints The Depository Trust Company to act as
Depositary with respect to each Global Note. Initially, each Global Note shall
be issued to the Depositary, registered in the name of Cede & Co., as the
nominee of the Depositary, and deposited with the Trustee as custodian for Cede
& Co.
If at any time the Depositary for a Global Note (i) notifies the Company
that it is unwilling or unable to continue as Depositary for such Note or (ii)
ceases to be registered as a clearing agency under the Exchange Act, the Company
may appoint a successor Depositary with respect to such Note. If (1) a successor
Depositary for such Global Note is not appointed by the Company within ninety
(90) days after the Company receives such notice or the Depositary ceasing to be
a registered clearing agency; (2) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of Notes in definitive
("Definitive Notes") form in exchange for all or any part of the Notes
represented by a Global Note, subject to the procedures of the Depositary; or
(3) an Event of Default has occurred and is continuing and the Trustee has
received a written request from the Depositary for the issuance of Definitive
Notes in exchange for a Global Note, the Company will execute, and the Trustee,
upon receipt of an Officers' Certificate for the authentication and delivery of
Notes, will authenticate and deliver Definitive Notes in an aggregate principal
amount equal to the principal amount of such Global Note, in exchange for such
Global Note, and upon delivery of the Global Note to the Trustee such Global
Note shall be canceled.
Definitive Notes issued in exchange for all or a part of the Global Note
pursuant to this Section 2.06 shall be registered in such names and in such
authorized denominations as the Depositary, pursuant to instructions from its
direct or indirect participants or otherwise, shall instruct the Trustee in
writing. Upon execution and authentication, the Trustee shall deliver such
Definitive Notes to the persons in whose names such Definitive Notes are so
registered.
At such time as all interests in a Global Note have been converted,
canceled, repurchased or transferred, such Global Note shall be, upon receipt
thereof, canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in a Global Note is exchanged for
Definitive Notes, converted, canceled, repurchased or transferred to a
transferee who receives Definitive Notes therefor or any Definitive Note is
exchanged or
23
transferred for part of such Global Note, the principal amount of such Global
Note shall, in accordance with the standing procedures and instructions existing
between the Depositary and the Custodian, be appropriately reduced or increased,
as the case may be, and an endorsement shall be made on such Global Note, by the
Trustee or the Custodian, at the direction of the Trustee, to reflect such
reduction or increase.
SECTION 2.07. Special Transfer Provisions. Unless a Note is no longer a
Restricted Security, the following provisions shall apply to any sale, pledge or
other transfer of such Notes:
(a) Transfer of Notes to a QIB. The following provisions shall apply with
respect to the registration of any proposed transfer of Notes to a QIB:
(i) If the Notes to be transferred consist of a beneficial interest in
the Global Notes, the transfer of such interest may be effected only
through the book-entry systems maintained by DTC.
(ii) If the Notes to be transferred consist of Definitive Notes, the
Note Registrar shall register the transfer if such transfer is being made
by a proposed transferor who has checked the box provided for on the form
of Note stating (or has otherwise advised the Company and the Registrar in
writing) that the sale has been made in compliance with the provisions of
Rule 144A to a transferee who has signed a certification stating or has
otherwise advised the Company and the Note Registrar in writing that:
(A) it is purchasing the Notes for its own account or an account
with respect to which it exercises sole investment discretion;
(B) it and any such account is a QIB within the meaning of Rule
144A;
(C) it is aware that the sale to it is being made in reliance on
Rule 144A;
(D) it acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A or has
determined not to request such information; and
(E) it is aware that the transferor is relying upon its foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
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(b) General. By its acceptance of any Note bearing the Restricted
Securities Legend, each holder of such Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and agrees that it will
transfer such Note only as provided in this Indenture. The Note Registrar shall
not register a transfer of any Note unless such transfer complies with the
restrictions on transfer of such Note set forth in this Indenture. The Note
Registrar shall be entitled to receive and rely on written instructions from the
Company verifying that such transfer complies with such restrictions on
transfer. In connection with any transfer of Notes, each holder agrees by its
acceptance of the Notes to furnish the Note Registrar or the Company such
certifications, legal opinions or other information as either of them may
reasonably require to confirm that such transfer is being made pursuant to an
exemption from, or a transaction not subject to, the registration requirements
of the Securities Act; provided that the Note Registrar shall not be required to
determine (but may rely on a determination made by the Company with respect to)
the sufficiency of any such certifications, legal opinions or other information.
The Note Registrar shall retain copies of all certifications, letters,
notices and other written communications received pursuant to Section 5.01
hereof or this Section 2.07. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Note
Registrar.
SECTION 2.08. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note
shall become mutilated or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon its written request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and deliver, a
new Note, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Note, or in lieu of and in substitution for the
Note so destroyed, lost or stolen. In every case the applicant for a substituted
Note shall furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by them to
save each of them harmless from any loss, liability, cost or expense caused by
or connected with such substitution, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent evidence to their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such
substituted Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Note, the Company may
require the payment by the holder of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in relation thereto
and any
25
other expenses (including the fees and expenses of the Trustee) connected
therewith. In case any Note which has matured or is about to mature or has been
tendered for purchase upon a Fundamental Change or is about to be converted into
ADSs shall become mutilated or be destroyed, lost or stolen, the Company may, in
its sole discretion, instead of issuing a substitute Note, convert or authorize
the conversion of the same (without surrender thereof except in the case of a
mutilated Note), as the case may be, if the applicant for such conversion shall
furnish to the Company, to the Trustee and, if applicable, to such
authenticating agent such security or indemnity as may be required by them to
save each of them harmless for any loss, liability, cost or expense caused by or
connected with such substitution, and, in every case of destruction, loss or
theft, evidence satisfactory to the Company, the Trustee and, if applicable, any
Paying Agent or Conversion Agent evidence of their satisfaction of the
destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section
2.08 by virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other
Notes duly issued hereunder. To the extent permitted by law, all Notes shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement, conversion, redemption or repurchase
of mutilated, destroyed, lost or stolen Notes and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement, conversion,
redemption or repurchase of negotiable instruments or other securities without
their surrender.
SECTION 2.09. Temporary Notes. Pending the preparation of Notes in
certificated form, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon written request of the Company,
authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the
form of the Notes in certificated form but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may be determined
by the Company. Every such temporary Note shall be executed by the Company and
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the Notes in certificated form. Without unreasonable delay the Company will
execute and deliver to the Trustee or such authenticating agent Notes in
certificated form (other than in the case of Notes in global form) and thereupon
any or all temporary Notes (other than any Global Note) may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant
to Section
26
5.03 and the Trustee or such authenticating agent shall authenticate and deliver
in exchange for such temporary Notes an equal aggregate principal amount of
Notes in certificated form. Such exchange shall be made by the Company at its
own expense and without any charge therefor. Until so exchanged, such temporary
Notes shall in all respects be entitled to the same benefits and subject to the
same limitations under this Indenture as Notes in certificated form
authenticated and delivered hereunder.
SECTION 2.10. Cancellation of Notes Paid, Etc. All Notes surrendered for
the purpose of payment, repurchase, conversion, exchange or registration of
transfer, shall, if surrendered to the Company or any Paying Agent or any Note
Registrar or any Conversion Agent, be surrendered to the Trustee and promptly
canceled by it, or, if surrendered to the Trustee, shall be promptly canceled by
it, and no Notes shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Trustee shall destroy canceled
Notes in accordance with its customary procedures and, after such destruction,
shall deliver a certificate of such destruction to the Company, at the Company's
written request. If the Company shall acquire any of the Notes, such acquisition
shall not operate as satisfaction of the indebtedness represented by such Notes
unless and until the same are delivered to the Trustee for cancellation.
SECTION 2.11. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in Company Notices as a convenience to holders of the Notes;
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 Company Notice and
that reliance may be placed only on the other identification numbers printed on
the Notes. The Company will promptly notify the Trustee or Paying Agent in
writing of any change in the "CUSIP" numbers.
SECTION 2.12. Additional Notes; Repurchases. The Company may, without the
consent of the Noteholders and notwithstanding Section 2.01, reopen this
Indenture and issue additional Notes hereunder with the same terms and with the
same CUSIP number as the Notes initially issued hereunder in an unlimited
aggregate principal amount, which will form the same series with the Notes
initially issued hereunder, provided that no such additional Notes may be issued
unless fungible with the Notes initially issued hereunder for U.S. federal
income tax purposes. The Company may also from time to time repurchase the Notes
in open market purchases or negotiated transactions without prior notice to
Noteholders.
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ARTICLE 3
REDEMPTION
SECTION 3.01. Right to Redeem; Notice to Trustee.
(a) At any time on or after January 20, 2015, the Company shall have the
right to redeem the Notes, in whole or from time to time in part in integral
multiples of US$1,000, at a price equal to 100% of the principal amount of the
Notes being redeemed, plus accrued and unpaid interest to, but excluding, the
Redemption Date, if the Last Reported Sale Price of the ADSs for at least 20
Trading Days in a period of 30 consecutive Trading Days, the last of which
occurs no more than five Trading Days prior to the date upon which notice of
such redemption is published, is at least 130% of the applicable Conversion
Price per ADS in effect on such Trading Day. However, if the Redemption Date
occurs after a record date and on or prior to the corresponding Interest Payment
Date, the Company will pay the full amount of accrued and unpaid interest due on
such Interest Payment Date to the Noteholder on the record date corresponding to
such Interest Payment Date, and the Redemption Price payable to the Noteholder
who presents the Note for redemption will be 100% of the principal amount of
such note and will not include any accrued and unpaid interest. The price at
which the Notes shall be redeemable on any Redemption Date pursuant to this
Section 3.01(a) is hereinafter referred to as a "REDEMPTION PRICE."
(b) If the Company elects to redeem the Notes, it shall notify the Trustee
in writing at least 30 days and no more than 60 days prior to the Redemption
Date of the Redemption Date and of the principal amount of Notes to be redeemed
(unless a shorter notice period shall be satisfactory to the Trustee). If fewer
than all of the Notes are to be redeemed, the record date relating to such
redemption shall be selected by the Company and given to the Trustee, which
record date shall not be less than ten days after the date of notice to the
Trustee.
SECTION 3.02. Selection of Notes to Be Redeemed.
(a) If less than all of the Notes are to be redeemed, unless the procedures
of the Depositary provide otherwise, the Trustee shall, at least 15 days but not
more than 60 days prior to the Redemption Date, select the Notes to be redeemed.
The Trustee shall make the selection from the Notes of that series outstanding
and not previously called for redemption, by lot, or in its discretion, on a pro
rata basis. Notes in denominations of US$1,000 may only be redeemed in whole.
The Trustee may select for redemption portions (equal to US$1,000 or any
integral multiple thereof) of the principal of Notes that have denominations
larger than US$1,000. Provisions of this Indenture that apply to Notes called
for redemption also apply to portions of Notes called for redemption.
28
(b) 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 be part of the
portion selected for redemption. Notes which have been converted subsequent to
the Trustee commencing selection of Notes to be redeemed but prior to redemption
of such Notes shall be treated by the Trustee as outstanding for the purpose of
such selection.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Company shall mail or cause to be mailed a notice of redemption to each holder
of Notes to be redeemed at such holder's address as it appears on the
registrar's books.
The notice shall identify the Notes (including CUSIP numbers) to be
redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the then current Conversion Price;
(d) the name and address of each Paying Agent and Conversion Agent;
(e) that Notes called for redemption must be presented and surrendered
to a Paying Agent to collect the Redemption Price;
(f) that holders who wish to convert Notes must surrender such Notes
for conversion no later than the close of business on the Business Day
immediately preceding the Redemption Date and must satisfy the other
requirements set forth herein;
(g) that, unless the Company defaults in making the payment of the
Redemption Price, interest on Notes called for redemption shall cease to
accrue on and after the Redemption Date and the only remaining right of the
holder shall be to receive payment of the Redemption Price plus accrued and
unpaid interest, upon presentation and surrender to a Paying Agent of the
Notes; and
(h) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the Redemption
Date, upon presentation and surrender of such Note, a new
29
Note or Notes in aggregate principal amount equal to the unredeemed portion
thereof will be issued.
If any of the Notes to be redeemed is in global form, then the Company
shall modify such notice to the extent necessary to accord with the procedures
of the Depositary applicable to redemptions. At the Company's written request,
which request shall (i) be irrevocable once given and (ii) set forth all
relevant information required by clauses (a) through (h) of the preceding
paragraph, the Trustee shall give the notice of redemption to each holder in the
Company's name and at the Company's expense.
SECTION 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed, Notes called for redemption become due
and payable on the Redemption Date and at the Redemption Price stated in the
notice, together with accrued and unpaid interest and Additional Amounts, if
any. On or after the Redemption Date and upon presentation and surrender to a
Paying Agent, Notes called for redemption shall be paid at the Redemption Price,
plus any accrued and unpaid interest and Additional Amounts, if any, up to but
not including the Redemption Date.
SECTION 3.05. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on the Redemption Date, the
Company shall deposit with a Paying Agent (or, if the Company acts as Paying
Agent, shall segregate and hold in trust) an amount of money (in immediately
available funds if deposited on such Redemption Date) sufficient to pay the
Redemption Price of, and any accrued and unpaid interest and Additional Amounts,
if any, on, all Notes to be redeemed on that date, other than Notes or portions
thereof called for redemption on that date which have been delivered by the
Company to the Trustee for cancellation or have been converted. The Paying Agent
shall as promptly as practicable return to the Company any money not required
for that purpose because of the conversion of Notes pursuant to Article 15, or,
if such money is then held by the Company in trust and is not required for such
purpose, it shall be discharged from the trust.
SECTION 3.06. Notes Redeemed in Part.
Upon presentation and surrender of a Note that is redeemed in part, the
Company shall execute and the Trustee shall authenticate and deliver to the
holder a new Note equal in principal amount to the unredeemed portion of the
Note surrendered.
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ARTICLE 4
[INTENTIONALLY OMITTED]
ARTICLE 5
PARTICULAR COVENANTS OF THE COMPANY
SECTION 5.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees that it will cause to be paid the principal of, premium, if
any, and accrued and unpaid interest (including Additional Interest) on each of
the Notes and if applicable, the Conversion Obligation and Additional ADSs, at
the places, at the respective times and in the manner provided herein and in the
Notes. The payment of the principal of, premium, if any, and accrued and unpaid
interest on each of the Notes will be exclusively in such coin or currency of
the United States as at the time of payment will be legal tender for the payment
of public and private debts. The Company shall, through the Principal Paying
Agent, pay the principal of the Notes at the office or agency designated by the
Company in the Borough of Manhattan, the City of New York. Each installment of
accrued and unpaid interest on the Notes due on any Interest Payment Date may be
paid by mailing checks for the amount payable to or upon the written order of
the Noteholders entitled thereto as they shall appear on the registry books of
the Company, provided that, with respect to any Noteholder with an aggregate
principal amount in excess of US$5,000,000, at the application of such holder in
writing to the Note Registrar not later than the relevant record date, any
accrued and unpaid interest on such holder's Notes shall be paid by wire
transfer in immediately available funds to such holder's account in the United
States supplied by such holder from time to time to the Trustee and Paying Agent
(if different from Trustee); provided further that payments in respect of the
Global Note shall be paid by wire transfer in immediately available funds to the
accounts specified by the Depository in accordance with such wire transfer
instructions and other procedures provided by the Depositary from time to time.
Interest on the Notes shall be computed on the basis of a 360-day year
comprised of twelve 30-day months.
The person in whose name any Note (or its Predecessor Note) is registered
on the Note Register at the close of business on any record date with respect to
any Interest Payment Date shall be entitled to receive the interest payable on
such Interest Payment Date. The term "RECORD DATE" with respect to any Interest
Payment Date shall mean the January 1 or July 1 preceding the applicable January
15 or July 15 Interest Payment Date, respectively.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "DEFAULTED
31
INTEREST") shall forthwith cease to be payable to the Noteholder on the relevant
record date by virtue of his having been such Noteholder, and the Company shall
make a payment of such Defaulted Interest to the relevant Noteholder as
determined through clause (a) or clause (b) below, the choice of which clause to
so utilize being the Company's:
(a) The Company may elect to make payment of any Defaulted Interest to
the persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee and the Principal
Paying Agent in writing of the amount of Defaulted Interest proposed to be
paid on each Note and the date of the proposed payment (which shall be not
less than twenty-five (25) days after the receipt by the Trustee and the
Principal Paying Agent of such notice, unless the Trustee consents to an
earlier date), and at the same time the Company shall deposit with the
Principal Paying Agent an amount of money equal to the aggregate amount to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Company shall fix a special record date for
the payment of such Defaulted Interest which shall be not more than fifteen
(15) days and not less than ten (10) days prior to the date of the proposed
payment, and not less than ten (10) days after the receipt by the Trustee
and the Principal Paying Agent of the notice of the proposed payment. The
Company shall promptly notify the Trustee and the Principal Paying Agent in
writing of such special record date and the Trustee, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first-class postage prepaid, to each holder at his address as it appears in
the Note Register, not less than ten (10) days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted Interest
shall be paid to the persons in whose names the Notes (or their respective
Predecessor Notes) are registered at the close of business on such special
record date and shall no longer be payable pursuant to the following clause
(b) of this Section 5.01.
(b) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, and upon such notice as may be required
by such exchange or automated quotation system, if, after notice
32
given by the Company to the Trustee and the Principal Paying Agent of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee and the Principal Paying Agent.
SECTION 5.02. Additional Interest. If Additional Interest is payable by the
Company pursuant to the Registration Rights Agreement, the Company shall deliver
to the Trustee an Officer's Certificate to that effect stating (i) the amount of
such Additional Interest that is payable and (ii) the date on which such
Additional Interest is payable. Unless and until a Responsible Officer receives
such a certificate, the Trustee may assume without inquiry that no Additional
Interest is payable. If the Company has paid Additional Interest directly to the
persons entitled to it, the Company shall deliver to the Trustee an Officer's
Certificate setting forth the particulars of such payment.
SECTION 5.03. Maintenance of Office or Agency. The Company will designate
in the Borough of Manhattan, The City of New York, an office or agency where the
Notes may be surrendered for registration of transfer or exchange or for
presentation for payment (through the Principal Paying Agent), redemptions or
repurchase ("PAYING AGENT") or for conversion ("CONVERSION AGENT") and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by 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 Corporate Trust Office or the
office or agency of the Trustee in the Borough of Manhattan, The City of New
York.
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 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. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. The terms Paying Agent and
Conversion Agent include any such additional or other offices or agencies, as
applicable.
The Company hereby initially designates the Trustee as Principal Paying
Agent, Note Registrar, Custodian and Conversion Agent and the Corporate Trust
Office shall be considered as one such office or agency of the Company for each
of the aforesaid purposes. So long as the Trustee is the Note Registrar, the
33
Trustee agrees to mail, or cause to be mailed, the notices set forth in Section
8.10(a) and the third paragraph of Section 8.11.
SECTION 5.04. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 8.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 5.05. Provisions as to Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee or
the Principal Paying Agent or if the Trustee shall appoint such a Paying Agent,
the Company will cause such Paying Agent to execute and deliver to the Trustee
an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 5.05:
(i) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, and accrued and unpaid
interest (including any Additional Interest) on the Notes (whether such
sums have been paid to it by the Company or by any other obligor on the
Notes) in trust for the benefit of the holders of the Notes;
(ii) that it will give the Trustee written notice of any failure by
the Company (or by any other obligor on the Notes) to make any payment of
the principal of and premium, if any, and accrued and unpaid interest
(including Additional Interest) on the Notes when the same shall be due and
payable; and
(iii) that at any time during the continuance of an Event of Default,
upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.
The Company shall, on or before each due date of the principal of, or
premium, if any, or accrued and unpaid interest (including Additional Interest)
on the Notes, deposit with the Paying Agent a sum sufficient to pay such
principal, premium, if any, or accrued and unpaid interest and (unless such
Paying Agent is the Trustee) the Company will promptly notify the Trustee in
writing of any failure to take such action, provided that if such deposit is
made on the due date, such deposit must be received by the Paying Agent by 11:00
a.m., New York City time, on such date.
(b) If the Company shall act as its own Paying Agent, it will, on or before
each due date of the principal of, premium, if any, and accrued and unpaid
interest (including Additional Interest) on the Notes, set aside, segregate and
hold
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in trust for the benefit of the holders of the Notes a sum sufficient to pay
such principal, premium, if any, and accrued and unpaid interest, so becoming
due and will notify the Trustee in writing of any failure to take such action
and of any failure by the Company (or any other obligor under the Notes) to make
any payment of the principal of, premium, if any, and accrued and unpaid
interest (including Additional Interest) on the Notes when the same shall become
due and payable.
(c) Anything in this Section 5.05 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any Paying Agent hereunder
as required by this Section 5.05, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any Paying Agent
to the Trustee, the Company and such Paying Agent shall be released from all
further liability with respect to such sums.
(d) Anything in this Section 5.05 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 5.05 is subject to
Section 13.03 and Section 13.04.
SECTION 5.06. Existence. Subject to Article 12, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence.
SECTION 5.07. Payment of Additional Amounts. (a) All payments made by the
Company or any successor to the Company under or with respect to the Notes
including payments of cash or delivery of ADSs upon conversion, will be made
without withholding or deduction for, or on account of, any present or future
taxes, duties, assessments or governmental charges of whatever nature imposed or
levied by or within any jurisdiction in which the Company, or its successors,
are organized or resident for tax purposes or through which payment is made (or
any political subdivision or taxing authority thereof or therein) (each, as
applicable, a "RELEVANT TAXING JURISDICTION"), unless such withholding or
deduction is required by law or by regulation or governmental policy having the
force of law. In the event that any such withholding or deduction is so
required, the Company or any successor to the Company will pay to the holder of
each Note such additional amounts ("ADDITIONAL AMOUNTS") as may be necessary to
ensure that the net amount received by the holder after such withholding or
deduction (and after deducting any taxes on the Additional Amounts) shall equal
the amounts which would have been received by such holder had no such
withholding or deduction been required, except that no Additional Amount shall
be payable:
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(i) for or on account of:
(A) any tax, duty, assessment or other governmental charge that
would not have been imposed but for:
(1) the existence of any present or former connection
between the Noteholder or beneficial owner of such Note and the
Relevant Taxing Jurisdiction other than merely holding such Note
or the receipt of payments thereunder, including, without
limitation, such Noteholder or beneficial owner being or having
been a national, domiciliary or resident of such Relevant Taxing
Jurisdiction or treated as a resident thereof or being or having
been physically present or engaged in a trade or business therein
or having or having had a permanent establishment therein;
(2) the presentation of such Note (in cases in which
presentation is required) more than 30 days after the later of
the date on which the payment of the principal of, premium, if
any, and interest on, such Note became due and payable pursuant
to the terms thereof or was made or duly provided for; or
(3) the failure of the Noteholder or beneficial owner of
such Note to comply with a timely request from the Company or any
successor of the Company, addressed to the Noteholder or
beneficial owner, as the case may be, to provide certification,
information, documents or other evidence concerning such holder's
or beneficial owner's nationality, residence, identity or
connection with the Relevant Taxing Jurisdiction, or to make any
declaration or satisfy any other reporting requirement relating
to such matters, if and to the extent that due and timely
compliance with such request is required by statute, regulation
or administrative practice of the Relevant Taxing Jurisdiction to
reduce or eliminate any withholding or deduction as to which
Additional Amounts would have otherwise been payable to such
Noteholder or beneficial owner;
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(B) any estate, inheritance, gift, sale, transfer, capital gains,
excise, personal property or similar tax, assessment or other
governmental charge;
(C) any tax, duty, assessment or other governmental charge that
is payable otherwise than by withholding from payments under or with
respect to the Notes; or
(D) any combination of taxes, duties, assessments or other
governmental charges referred to in the preceding clauses (A), (B) or
(C); or
(ii) with respect to any payment of the principal of, or premium, if
any, or interest on, such Note to a Noteholder, if the Noteholder is a
fiduciary, partnership or person other than the sole beneficial owner of
that payment to the extent that such payment would be required to be
included in the income under the laws of the Relevant Taxing Jurisdiction,
for tax purposes, of a beneficiary or settlor with respect to the
fiduciary, a member of that partnership or a beneficial owner who would not
have been entitled to such Additional Amounts had that beneficiary,
settlor, partner or beneficial owner been the Noteholder thereof.
(b) The Notes are subject in all cases to any tax, fiscal or other law or
regulation or administrative or judicial interpretation. Except as specifically
provided above or otherwise herein, the Company shall not be required to make a
payment with respect to any tax, assessment or governmental charge imposed by
any government or a political subdivision or taxing authority thereof or
therein.
(c) In the event that Additional Amounts actually paid with respect to the
Notes are based on rates of deduction or withholding of withholding taxes in
excess of the appropriate rate applicable to the holder of such Notes, and, as a
result thereof such holder is entitled to make claim for a refund or credit of
such excess from the authority imposing such withholding tax, then such holder
shall, by accepting such Notes, be deemed to have assigned and transferred all
right, title, and interest to any such claim for a refund or credit of such
excess to the Company.
(d) Any reference in this Indenture or the Notes to principal, interest or
any other amount payable in respect of the Notes by the Company (including
conversion into ADSs, if any) will be deemed also to refer to any Additional
Amounts, unless the context requires otherwise, that may be payable with respect
to that amount under the obligations referred to in this Section.
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(e) The foregoing obligation will survive termination or discharge of the
Indenture.
SECTION 5.08. Stay, Extension and Usury Laws. The Company covenants (to the
extent that it may lawfully do so) that it shall not at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law or other law which would prohibit or forgive
the Company from paying all or any portion of the principal of or interest
(including any Additional Interest) on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture. The Company (to the extent it
may lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not, by resort to any such law, hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
SECTION 5.09. Compliance Certificate; Statements as to Defaults. 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 December
31, 2008) an Officers' Certificate stating whether or not the signer thereof has
knowledge of any failure by the Company to comply with all conditions and
covenants then required to be performed under this Indenture and, if so,
specifying each such failure and the nature thereof.
In addition, the Company shall deliver to the Trustee, as soon as possible
and in any event within 30 days after the Company becomes aware of the
occurrence of any Event of Default or Default, an Officers' Certificate setting
forth the details of such Event of Default or Default, its status and the action
which the Company proposes to take with respect thereto.
SECTION 5.10. 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.
ARTICLE 6
LISTS OF NOTEHOLDERS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 6.01. Lists of Noteholders. The Company covenants and agrees that
it will furnish or cause to be furnished to the Trustee, semi-annually, not more
than fifteen (15) days after each January 1 and July 1 in each year beginning
with July 1, 2008, and at such other times as the Trustee may request in
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writing, within thirty (30) days after receipt by the Company of any such
request (or such lesser time as the Trustee may reasonably request in order to
enable it to timely provide any notice to be provided by it hereunder), a list
in such form as the Trustee may require of the names and addresses of the
Noteholders as of a date not more than fifteen (15) days (or such other date as
the Trustee may reasonably request in order to so provide any such notices)
prior to the time such information is furnished, except that no such list need
be furnished so long as the Trustee is acting as Note Registrar.
SECTION 6.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Noteholders
contained in the most recent list furnished to it as provided in Section 6.01 or
maintained by the Trustee in its capacity as Note Registrar, if so acting. The
Trustee may destroy any list furnished to it as provided in Section 6.01 upon
receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with other Noteholders with
respect to their rights under this Indenture or under the Notes and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Noteholders made pursuant to the Trust
Indenture Act.
SECTION 6.03. Reports by Trustee.
(a) The Trustee shall transmit to Noteholders such reports dated as of May
15 of each year in which such reports are made concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto. Reports so
required to be transmitted at stated intervals of not more than 12 months shall
be transmitted no later than August 1 in each calendar year, beginning with the
year 2008 and for so long as the Notes remain outstanding. Each such report
shall be dated as of a date not more than sixty (60) days prior to the date of
transmission.
(b) A copy of such report shall, at the time of such transmission to
Noteholders, be filed by the Trustee with each stock exchange and automated
quotation system upon which the Notes are listed and with the Company. The
Company will notify the Trustee in writing within a reasonable time when the
39
Notes are listed on any stock exchange or automated quotation system and when
any such listing is discontinued.
SECTION 6.04. Reports by Company.
(a) The Company shall file with the Trustee and the Commission, and
transmit to Noteholders, such information, documents and other reports and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is filed with the Commission.
(b) In the event and for so long as the Company is not subject to Section
13 or 15(d) of the Exchange Act, it shall file with the Trustee and cause to be
mailed to each holder at such holder's registered address, upon the request of
any holder or beneficial holder of the Notes or the ADSs issued upon conversion
thereof, and make available to such holder or beneficial holder of such Notes or
ADSs in connection with any sale thereof and any prospective purchaser of Notes
or ADSs designated by such holder or beneficial holder, the information required
pursuant to Rule 144A(d)(4) under the Securities Act and it will take such
further action as any holder or beneficial holder of such Notes or ADSs may
reasonably request, all to the extent required from time to time to enable such
holder or beneficial holder to sell its Notes or ADSs without registration under
the Securities Act within the limitation of the exemption provided by Rule 144A,
as such Rule may be amended from time to time.
(c) Delivery of such reports, information and documents to the Trustee is
for informational purposes only, and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on an Officers' Certificate).
ARTICLE 7
DEFAULTS AND REMEDIES
SECTION 7.01. Events of Default. The following events shall be Events of
Default with respect to the Notes:
(a) default in any payment of interest, including any related
Additional Amounts, on any Note when due and payable and the default
continues for a period of 30 days;
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(b) default in the payment of principal of any Note, including any
related Additional Amounts, when due and payable on the Maturity Date, upon
redemption or required repurchase, upon declaration or otherwise;
(c) failure by the Company to comply with its obligations to convert
the Notes into ADSs upon exercise of a holder's conversion right;
(d) failure by the Company to issue a Fundamental Change Company
Notice in accordance with Section 16.02;
(e) failure by the Company for 60 days to comply with any of its other
agreements (other than a covenant or warranty or default in whose
performance or whose breach is elsewhere in this Section specifically
provided for) contained in the Notes or this Indenture after written notice
of such default from the Trustee or the holders of at least 25% in
aggregate principal amount of the Notes then outstanding has been received
by the Company;
(f) failure by the Company or any Significant Subsidiary of the
Company to make any payment of the principal or interest on any mortgage,
agreement or other instrument under which there may be outstanding, or by
which there may be secured or evidenced, any debt for money borrowed in
excess of US$10 million in the aggregate of the Company and/or any such
Subsidiary, whether such debt now exists or shall hereafter be created,
resulting in such debt becoming due and payable before the date on which it
would otherwise have become due and payable, if such failure is not cured
or waived, or such acceleration is not rescinded, within 60 days after
notice 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, in accordance with this Indenture; or
(g) any event occurs that under the laws of the Cayman Islands or any
political subdivision thereof or any other country has substantially the
same effect as any of the events referred to in any of clause (g) or (h)
(an Event of Default specified in clause (g), (h) or this clause (g), a
"BANKRUPTCY DEFAULT").
In case one or more Events of Default shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body), then, and in each and every such case
(other than a Bankruptcy Default with respect to the Company), unless the
41
principal of all of the Notes shall have already become due and payable, either
the Trustee or the holders of at least 25% in aggregate principal amount of the
Notes then outstanding determined in accordance with Section 9.04, by notice in
writing to the Company (and to the Trustee if given by Noteholders), may declare
100% of the principal of and premium, if any, and accrued and unpaid interest,
including any Additional Amounts and Additional Interest, if any, on all the
Notes to be due and payable immediately, and upon any such declaration the same
shall become and shall be immediately due and payable, anything in this
Indenture or in the Notes contained to the contrary notwithstanding. If a
Bankruptcy Default occurs and is continuing with respect to the Company, the
principal of, and premium, if any, and accrued and unpaid interest, including
Additional Amounts and Additional Interest, if any, on all the Notes shall be
immediately due and payable, regardless of any prior action by any Noteholder or
the Trustee. This provision, however, is subject to the conditions that if, at
any time after the principal of the Notes shall have been so declared due and
payable, and before any judgment or decree for the payment of the monies due
shall have been obtained or entered as hereinafter provided, the Company shall
pay or shall deposit with the Trustee a sum sufficient to pay installments of
accrued and unpaid interest, including Additional Amounts and Additional
Interest, if any, upon all Notes and the principal of and premium, if any, on
any and all Notes that shall have become due otherwise than by acceleration
(with interest on overdue installments of accrued and unpaid interest (to the
extent that payment of such interest is enforceable under applicable law),
including Additional Amounts and Additional Interest, if any, and on such
principal and premium, if any, at the rate borne by the Notes during the period
of such Default) and amounts due to the Trustee pursuant to Section 8.06, and if
(1) rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (2) any and all Events of Defaults under this
Indenture, other than the nonpayment of principal of and premium, if any, and
accrued and unpaid interest, including Additional Amounts and Additional
Interest, if any, on Notes that shall have become due solely by such
acceleration, shall have been cured or waived pursuant to Section 7.07, then and
in every such case the holders of a majority in aggregate principal amount of
the Notes then outstanding, by written notice to the Company and to the Trustee,
may waive all defaults or Events of Default with respect to the Notes and
rescind and annul such declaration and its consequences and such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or Event of Default, or shall impair any right consequent thereon.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such waiver or rescission and annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case
42
the Company, the Noteholders, and the Trustee shall, subject to any
determination in such proceeding, be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Company, the Noteholders, and the Trustee shall continue as though no such
proceeding had been instituted.
SECTION 7.02. Payments of Notes on Default; Suit Therefor. In the event
that the Trustee or the holders of not less than 25% in aggregate principal
amount of the Notes then outstanding hereunder have declared the principal of,
and premium, if any, and accrued and unpaid interest, including Additional
Amounts and Additional Interest, on the Notes, to be due and payable immediately
in accordance with Section 7.01, and the Company shall have failed forthwith to
pay such amounts, the Trustee, in its own name and as trustee of an express
trust, after being furnished indemnity or security to its satisfaction pursuant
to Section 8.01, shall be entitled and empowered to institute any actions or
proceedings at law or in equity for the collection of the sums so due and unpaid
(including such further amounts as shall be sufficient to cover the costs and
expenses of collection, including compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and any
expenses or liabilities incurred, and all advances made by the Trustee and each
predecessor Trustee hereunder other than through its gross negligence or bad
faith), and may prosecute any such action or proceeding to judgment or final
degree, and may enforce any such judgment or final decree against the Company or
any other obligor on the Notes and collect in the manner provided by law out of
the property of the Company or any other obligor on the Notes wherever situated
the monies adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under Title 11
of the United States Bankruptcy Code, or any other applicable law, or in case a
receiver, assignee, administrator or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or
taken possession of the Company or such other obligor, the property of the
Company or such other obligor, or in the case of any other judicial proceedings
relative to the Company or such other obligor upon the Notes, or to the
creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal 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 pursuant to the provisions of this
Section 7.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal premium, if any, and accrued and unpaid interest, including
Additional Amounts and Additional Interest, if any, in respect of the Notes,
and, in case of any judicial proceedings, to file such proofs of claim and other
papers or documents and to take such other actions as it may deem necessary or
advisable in order to have the claims of the Trustee
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(including any claim for the compensation, expenses, disbursements and advances
of the Trustee, and each predecessor Trustee, and their respective agents and
counsel and for all expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee) and of the Noteholders allowed in such
judicial proceedings relative to the Company or any other obligor on the Notes,
its or their creditors, or its or their property, and to collect and receive any
monies or other property payable or deliverable on any such claims, and to
distribute the same after the deduction of any amounts due the Trustee under
Section 8.06; and any receiver, assignee, administrator, or trustee in
bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Noteholders to make such payments to the
Trustee, as administrative expenses, and, in the event that the Trustee shall
consent to the making of such payments directly to the Noteholders, to pay to
the Trustee any amount due it for compensation, expenses, advances and
disbursements, including agents and counsel fees, and including any other
amounts due to the Trustee and any predecessor Trustee under Section 8.06
hereof, incurred by it up to the date of such distribution. To the extent that
such payment of compensation, expenses, advances and disbursements out of the
estate in any such proceedings shall be denied for any reason, payment of the
same shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities and other property which the
holders of the Notes may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Noteholder any plan
of reorganization, arrangement, adjustment or composition affecting the
Noteholder or the rights of any Noteholder thereof, or to authorize the Trustee
to vote in respect of the claim of any Noteholder in any such proceeding.
All rights of action and of asserting claims under this Indenture, or under
any of the Notes, may be enforced by the Trustee without the possession of any
of the Notes, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the compensation,
expenses, disbursements and advances of the Trustee, and each predecessor
Trustee and their respective agents and counsel, be for the ratable benefit of
the holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings involving
the interpretation of any provision of this Indenture to which the Trustee shall
be a party) the Trustee shall be held to represent all the holders of the Notes,
and it shall not be necessary to make any holders of the Notes parties to any
such proceedings.
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SECTION 7.03. Application of Monies Collected by Trustee. Any monies
collected by the Trustee pursuant to this Article 7 with respect to the Notes
shall be applied in the order following, at the date or dates fixed by the
Trustee for the distribution of such monies, upon presentation of the several
Notes, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:
First, to the payment of all amounts due the Trustee under Section 8.06;
Second, in case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of interest (including Additional
Amounts and Additional Interest, if any) on the Notes in default in the order of
the maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate borne by the Notes, such payments to be
made ratably to the Persons entitled thereto;
Third, in case the principal of the outstanding Notes shall have become
due, by declaration or otherwise, and be unpaid to the payment of the whole
amount (including, if applicable, payments in respect of the Conversion
Obligation and Additional ADSs) then owing and unpaid upon the Notes for
principal and premium, if any, and interest (including Additional Amounts and
Additional Interest, if any) with interest at the rate borne by the Notes, on
the overdue principal and premium, if any, and (to the extent that such interest
has been collected by the Trustee) upon overdue installments of interest and in
case such monies shall be insufficient to pay in full the whole amounts so due
and unpaid upon the Notes, then to the payment of such principal and premium, if
any, and interest without preference or priority of principal and premium, if
any, over interest, or of interest over principal and premium, if any, or of any
installment of interest over any other installment of interest, or of any Note
over any other Note, ratably to the aggregate of such principal and premium, if
any, and accrued and unpaid interest; and
Fourth, to the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
SECTION 7.04. Proceedings by Noteholders. No holder of any Note shall have
any right by virtue of or by availing of any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore
provided, and unless also the holders of not less than 25% in aggregate
principal amount of the Notes then
45
outstanding shall have made written request to the Trustee to institute such
action, suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such security or indemnity satisfactory to it against any
loss, liability or expense to be incurred therein or thereby, and the Trustee
for sixty (60) days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and no direction that, in the opinion of the Trustee, is inconsistent
with such written request shall have been given to the Trustee by the holders of
a majority in principal amount of the Notes outstanding pursuant to Section
7.07; it being understood and intended, and being expressly covenanted by the
holder of every Note with every other holder and the Trustee, that no one or
more Noteholders shall have any right in any manner whatsoever by virtue of or
by availing of any provision of this Indenture to affect, disturb or prejudice
the rights of any other Noteholder, or to obtain or seek to obtain priority over
or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Noteholders (except as otherwise provided herein). For the
protection and enforcement of this Section 7.04, each and every Noteholder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provision of this Indenture and any provision of
any Note, the right of any Noteholder to receive payment of the principal of and
premium, if any, and accrued and unpaid interest, including Additional Amounts
and Additional Interest, if any, on such Note, on or after the respective due
dates expressed in such Note or in the notice of redemption, or to institute
suit for the enforcement of any such payment on or after such respective dates
against the Company shall not be impaired or affected without the consent of
such Noteholder.
Anything in this Indenture or the Notes to the contrary notwithstanding,
the holder of any Note, without the consent of either the Trustee or the holder
of any other Note, in his own behalf and for his own benefit, may enforce, and
may institute and maintain any proceeding suitable to enforce, his rights of
conversion as provided herein.
SECTION 7.05. Proceedings by Trustee. In case of an Event of Default the
Trustee may in its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit in equity or
by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
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SECTION 7.06. Remedies Cumulative and Continuing. Except as provided in the
last paragraph of Section 2.08, all powers and remedies given by this Article 7
to the Trustee or to the Noteholders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the holders of the Notes, by judicial
proceedings or otherwise, to enforce the performance or observance of the
covenants and agreements contained in this Indenture, and no delay or omission
of the Trustee or of any holder of any of the Notes to exercise any right or
power accruing upon any default or Event of Default shall impair any such right
or power, or shall be construed to be a waiver of any such default or any
acquiescence therein; and, subject to the provisions of Section 7.04, every
power and remedy given by this Article 7 or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Noteholders.
SECTION 7.07. Direction of Proceedings and Waiver of Defaults by Majority
of Noteholders. The holders of a majority in aggregate principal amount of the
Notes at the time outstanding determined in accordance with Section 9.04 shall
have the right to direct the time, method, and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to Notes; provided, however, that
(a) such direction shall not be in conflict with any rule of law or with this
Indenture, and (b) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction. The Trustee may refuse to
follow any direction that it determines is unduly prejudicial to the rights of
any other holder or that would involve the Trustee in personal liability or to
the extent that the Trustee does not receive indemnification to its
satisfaction. The holders of a majority in aggregate principal amount of the
Notes at the time outstanding determined in accordance with Section 9.04 may on
behalf of the holders of all of the Notes and subject to the provisions of
Section 7.01 waive any past default or Event of Default hereunder and its
consequences except (i) a default in the payment of premium, accrued and unpaid
interest, including Additional Amounts, on, or the principal of, the Notes when
due which has not been cured pursuant to the provisions of Section 7.01, (ii) a
failure by the Company to deliver cash and, if applicable, ADSs (and cash in
lieu of fractional ADSs) upon conversion of the Notes, or (iii) a default in
respect of a covenant or provisions hereof which under Article 11 cannot be
modified or amended without the consent of each holder of an outstanding Note
affected thereby. Upon any such waiver the Company, the Trustee and the holders
of the Notes shall be restored to their former positions and rights hereunder;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any Default or Event of
Default hereunder shall have been waived as permitted by this Section 7.07, said
default or Event of Default shall for all purposes of the Notes and this
Indenture be deemed to have been cured and to be not continuing;
47
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon.
SECTION 7.08. Notice of Defaults. The Trustee shall, within ninety (90)
days after the occurrence and continuance of a Default of which a Responsible
Officer receives written notice, mail to all Noteholders as the names and
addresses of such holders appear upon the Note register, notice of all Defaults
known to a Responsible Officer, unless such Defaults shall have been cured or
waived before the giving of such notice; and provided that, except in the case
of a Default in the payment of the principal of, or premium, if any, and accrued
and unpaid interest, including Additional Amounts, on any of the Notes, then in
any such event the Trustee shall be protected in withholding such notice if and
so long as a committee of trust officers of the Trustee in good faith determine
that the withholding of such notice is in the interests of the Noteholders.
SECTION 7.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may, in its discretion, require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; provided that the provisions of this Section 7.09 (to the extent
permitted by law) shall not apply to any suit instituted by the Trustee, to any
suit instituted by any Noteholder, or group of Noteholders, holding in the
aggregate more than 10% in principal amount of the Notes at the time outstanding
determined in accordance with Section 9.04, or to any suit instituted by any
Noteholder for the enforcement of the payment of the principal of or premium, if
any, and accrued and unpaid interest, including Additional Amounts, on any Note
on or after the due date expressed in such Note or to any suit for the
enforcement of the right to convert any Note in accordance with the provisions
of Article 15.
ARTICLE 8
CONCERNING THE TRUSTEE
SECTION 8.01. Duties and Responsibilities of Trustee. The Trustee, prior to
the occurrence of an Event of Default and after the curing or waiver of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived) the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
no
48
implied covenants or obligations shall be read into this Indenture against the
Trustee, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs; provided that if an Event of Default occurs and is
continuing, the Trustee will be under no obligation to exercise any of the
rights or powers under this Indenture at the request or direction of any of the
holders unless such holders have offered to the Trustee indemnity or security
against loss, liability or expense to its satisfaction.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own grossly negligent action, its own grossly negligent
failure to act, its own bad faith, or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture and, after it has
been qualified thereunder, the Trust Indenture Act, and the Trustee
shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture and
the Trust Indenture Act against the Trustee; and
(ii) in the absence of bad faith, gross negligence and willful
misconduct on the part of the Trustee, the Trustee may conclusively
rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but, in the case of any such statements,
certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer or Officers of the Trustee, unless it
shall be established by a court of competent jurisdiction that the Trustee
was grossly negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable for the performance by any third
party appointed by the Company in relation to the Notes and, unless
notified in writing to the contrary, shall be entitled to assume due
performance by such parties;
49
(d) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
holders of not less than a majority in principal amount of the Notes at the time
outstanding determined as provided in Section 9.04 relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture;
(e) whether or not therein provided, every provision of this Indenture
relating to the conduct or affecting the liability of, or affording protection
to, the Trustee shall be subject to the provisions of this Section;
(f) the Trustee shall not be liable in respect of any payment (as to the
correctness of amount, entitlement to receive or any other matters relating to
payment) or notice effected by the Company or any Paying Agent or any records
maintained by any co-registrar with respect to the Notes;
(g) if any party fails to deliver a written notice relating to an event the
fact of which, pursuant to this Indenture, requires written notice to be sent to
the Trustee, the Trustee may conclusively rely on its failure to receive such
notice as reason to act as if no such event occurred, unless such Responsible
Officer of the Trustee had actual knowledge of such event, and the Trustee shall
have no obligation or duty to monitor, determine or inquire as to compliance
with any covenants of the Company under this Indenture;
(h) in the absence of written investment direction from the Company, all
cash received by the Trustee shall be placed in a non-interest bearing trust
account. In no event shall the Trustee be liable for the selection of
investments or for investment losses incurred thereon or for losses incurred as
a result of the liquidation of any such investments prior to its stated maturity
or the failure of the party directing such investments prior to its stated
maturity or the failure of the party directing such investment to provide timely
written investment direction, and the Trustee shall have no obligation to invest
or reinvest any amounts held hereunder in the absence of such written investment
direction from the Company;
(i) the Trustee shall not be liable for any failure or delay in the
performance of its obligations under this Indenture because of circumstances
beyond the Trustee's control;
(j) the Trustee and any of its branches, subsidiaries, representative
offices affiliates or agents may transfer and disclose any relevant information
concerning the Notes, Noteholders or this Indenture as required by any law,
court order, or regulatory authority; and as may be required, the Trustee shall
have the right, in connection with the establishment of anti-money-laundering
procedures by the Secretary of the United States Department of the Treasury, to
share
50
information with governmental authorities with respect to investors in the Notes
and to request such information and take such actions as might be necessary to
enable the Trustee to comply with the USA PATRIOT Act or any
anti-money-laundering laws in the British Virgin Islands or any other relevant
jurisdiction; and
(k) in the event that the Trustee is also acting as Custodian, Note
Registrar, Paying Agent, Conversion Agent or transfer agent hereunder, the
rights and protections afforded to the Trustee pursuant to this Article 8 shall
also be afforded to it in its capacity as such.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights, discretions or powers.
SECTION 8.02. Reliance on Documents, Opinions, Etc. Except as otherwise
provided in Section 8.01:
(a) the Trustee may conclusively rely and shall be fully protected in
acting, or refraining from acting, upon any resolution, officer's
certificate or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, note, coupon or other paper
or document believed by it in good faith to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless
other evidence in respect thereof be herein specifically prescribed); and
any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by a director or executive officer of the Company;
(c) the Trustee may request that the Company deliver an Officer's
Certificate setting forth the names of individuals authorized at such time
to take specified actions pursuant to this Indenture;
(d) the Trustee may consult with counsel and require an Opinion of
Counsel and any advice of such counsel or Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken or
omitted by it hereunder in good faith and in accordance with such advice or
Opinion of Counsel;
51
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Noteholders pursuant to the provisions of this
Indenture, unless such Noteholders shall have offered to the Trustee
security or indemnity satisfactory to it against the fees, costs, expenses
and liabilities which may be incurred therein or thereby;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture 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 determines 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; provided, however, that if the payment within a reasonable time
to the Trustee of the costs, expenses or liabilities likely to be incurred
by it in the making of such investigation is, in the opinion of the
Trustee, not assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require security or indemnity
satisfactory to the Trustee from the Noteholders against properly incurred
expenses or liability as a condition to so proceeding; the expenses of
every such examination shall be paid by the Company or, if paid by the
Trustee or any predecessor Trustee, shall be repaid by the Company upon
demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents,
custodians, nominees or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent, custodian,
nominee or attorney appointed by it with due care hereunder;
(h) the Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the
discretion, rights, or powers conferred upon it by this Indenture, and
shall in no way be liable for any action taken by the Noteholders exclusive
of the Trustee;
(i) the Trustee shall not be liable if prevented or delayed in
performing any of its duties by reason of any present or future law
applicable to it, by any governmental or regulatory authority; and
(j) the permissive rights of the Trustee enumerated herein shall not
be construed as duties.
52
In no event shall the Trustee be liable for any special, indirect, punitive
or consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), whether foreseeable or not, even if the Trustee has
been advised of the likelihood of such loss or damage and regardless of the form
of action other than through the Trustee's bad faith, willful misconduct or
gross negligence. The Trustee shall not be charged with knowledge of any default
or Event of Default with respect to the Notes, unless either (1) a Responsible
Officer shall have actual knowledge of such default or Event of Default or (2)
written notice of such default or Event of Default shall have been given to the
Trustee by the Company or by any holder of the Notes.
SECTION 8.03. No Responsibility for Recitals, Etc. The recitals contained
herein and in the Notes (except in the Trustee's certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture. The Trustee
shall not be responsible or liable for any loss suffered in connection with any
investment of funds made by it in accordance with this Indenture or at the
direction of the Company. Except for information provided by the Trustee
concerning the Trustee, the Trustee shall have no responsibility for any
information in any offering memorandum, prospectus or other disclosure material
distributed with respect to the Notes.
SECTION 8.04. Trustee, Paying Agents, Conversion Agents or Registrar May
Own Notes. The Trustee, any Paying Agent, any Conversion Agent or Note
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
Paying Agent, Conversion Agent or Note Registrar and may otherwise deal with the
Company and receive, collect, hold and retain collections from the Company with
the same rights it would have if it were not the Trustee or such agent.
SECTION 8.05. Monies to Be Held in Trust. Subject to the provisions of
Section 13.04, all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee or its agents
shall be under no liability for interest on any money received by it hereunder.
SECTION 8.06. Compensation and Indemnification of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation for all services rendered by it
53
hereunder in any capacity (which shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust) as mutually agreed
to in writing between the Trustee and the Company, and the Company covenants and
agrees to pay or reimburse the Trustee upon its request for all properly
incurred expenses, disbursements and advances properly incurred or made by or on
behalf of it in accordance with any of the provisions of this Indenture
(including the compensation and the properly incurred expenses and disbursements
of its agents and counsel and of all persons not regularly in its employ) except
any such expense, disbursement or advance as may arise from its gross
negligence, willful misconduct, or bad faith. Without prejudice to any right of
indemnity by law given to trustees, the Company also covenants to indemnify the
Trustee and any predecessor Trustee in any capacity under this Indenture and any
other document or transaction entered into in connection herewith and its agents
(including anyone appointed by it or to whom any of its functions may be
delegated by it or to whom any of its functions may be delegated by it in
carrying out its functions in the fulfillment of its obligations under this
Indenture) and any authenticating agent for, and to hold them harmless against,
any loss, liability, damages, claim, judgment, liability or expense incurred
without gross negligence, willful misconduct or bad faith on the part of the
Trustee, its officers, directors, agents or employees, or such agent or
authenticating agent, as the case may be, and arising out of or in connection
with the acceptance or administration of this trust or in any other capacity
hereunder, including, without limitation, taxes, duties, levies, other charges,
value added tax or similar tax charged or chargeable thereon (excluding any
franchise, income or similar taxes) and the costs and expenses of defending
themselves against any claim of liability in the premises. The obligations of
the Company under this Section 8.06 to compensate or indemnify the Trustee and
to pay or reimburse the Trustee for expenses, disbursements and advances shall
be secured by a lien prior to that of the Notes upon all property and funds held
or collected by the Trustee as such, except, subject to the effect of Section
7.03, funds held in trust herewith for the benefit of the holders of particular
Notes prior to the date of the accrual of such unpaid compensation or
indemnifiable claim. The Trustee's right to receive payment of any amounts due
under this Section 8.06 shall not be subordinate to any other liability or
indebtedness of the Company (even though the Notes may be so subordinated). The
obligation of the Company under this Section 8.06 shall survive the satisfaction
and discharge of this Indenture and the earlier resignation or removal or the
Trustee. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld. The indemnification provided
in this Section 8.06 shall extend to the officers, directors, agents and
employees of the Trustee.
If an Event of Default shall have occurred or if the Trustee is requested
by the Company to undertake duties which are of an exceptional nature or
otherwise outside the scope of the Trustee's normal duties under this Indenture,
the
54
Company will pay such additional remuneration as they may agree or, failing such
agreement, as determined by an independent international merchant or investment
bank (acting as an expert) selected by the Trustee and approved by the Company.
The expenses involved in such nomination and such merchant or investment bank's
fee will be paid by the Company. The determination of such merchant or
investment bank will be conclusive and binding on the Company, the Trustee and
the Noteholders.
When the Trustee and its agents and any authenticating agent incur expenses
or render services after an Event of Default specified in ERROR! REFERENCE
SOURCE NOT FOUND. or Section 7.01(f) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.
SECTION 8.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 8.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of gross negligence, willful misconduct, and bad
faith on the part of the Trustee, be deemed to be conclusively proved and
established by an Officers' Certificate delivered to the Trustee, and such
Officers' Certificate, in the absence of gross negligence, willful misconduct,
and bad faith on the part of the Trustee, shall be full warrant to the Trustee
for any action taken or omitted by it under the provisions of this Indenture
upon the faith thereof.
SECTION 8.08. Conflicting Interests of Trustee. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
SECTION 8.09. Eligibility of Trustee. There shall at all times be a
Trustee hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
US$50,000,000. If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
55
SECTION 8.10. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written notice of such
resignation to the Company and by mailing notice thereof to the Noteholders at
their addresses as they shall appear on the Note register. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment sixty (60) days after the mailing of
such notice of resignation to the Noteholders, the resigning Trustee may at the
expense of the Company petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Noteholder who has been a bona fide
holder of a Note or Notes for at least six months may, subject to the provisions
of Section 7.09, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 8.08 within a
reasonable time after written request therefor by the Company or by any
Noteholder who has been a bona fide holder of a Note or Notes for at least
six (6) months, or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 8.09 and shall fail to resign after written request
therefor by the Company or by any such Noteholder, or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, the Company may by a Board Resolution remove the Trustee
and appoint a successor trustee by written instrument, in duplicate, executed by
order of the Board of Directors, one copy of which instrument shall be delivered
to the Trustee so removed and one copy to the successor trustee, or, subject to
the provisions of Section 7.09, any Noteholder who has been a bona fide holder
of a Note or Notes for at least six (6) months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor
56
trustee. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of the Notes at
the time outstanding, as determined in accordance with Section 9.04, may at any
time remove the Trustee and nominate a successor trustee which shall be deemed
appointed as successor trustee unless within ten (10) days after notice to the
Company of such nomination the Company objects thereto, in which case the
Trustee so removed or any Noteholder, upon the terms and conditions and
otherwise as in Section 8.10(a) provided, may petition any court of competent
jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 8.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 8.11.
SECTION 8.11. Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amounts then due it pursuant to the provisions of Section
8.06, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of holders
of particular Notes, to secure any amounts then due it pursuant to the
provisions of Section 8.06.
No successor trustee shall accept appointment as provided in this Section
8.11 unless at the time of such acceptance such successor trustee shall be
qualified under the provisions of Section 8.08 and be eligible under the
provisions of Section 8.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 8.11, each of the Company and the successor trustee, at the written
direction and at the expense of the Company shall mail or cause to be mailed
57
notice of the succession of such trustee hereunder to the Noteholders at their
addresses as they shall appear on the Note register. If the Company fails to
mail such notice within ten (10) days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Company.
SECTION 8.12. Succession by Merger, Etc. Any corporation or other entity
into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or other
entity succeeding to all or substantially all of the corporate trust business of
the Trustee (including the administration of this Indenture), shall be the
successor to the Trustee hereunder without the execution or filing of any paper
or any further act on the part of any of the parties hereto, provided that in
the case of any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee such corporation shall be qualified
under the provisions of Section 8.08 and eligible under the provisions of
Section 8.09.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee or authenticating agent appointed
by such predecessor trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or an authenticating agent appointed by such successor
trustee may authenticate such Notes either in the name of any predecessor
trustee hereunder or in the name of the successor trustee; and in all such cases
such certificates shall have the full force which it is anywhere in the Notes or
in this Indenture provided that the certificate of the Trustee shall have;
provided, however, that the right to adopt the certificate of authentication of
any predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 8.13. Limitation on Rights of Trustee as Creditor. If and when the
Trustee shall be or become a creditor of the Company (or any other obligor upon
the Notes), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of the claims against the Company (or any
such other obligor).
SECTION 8.14. Trustee's Application for Instructions from the Company. Any
application by the Trustee for written instructions from the Company (other than
with regard to any action proposed to be taken or omitted to be taken by the
Trustee that affects the rights of the holders of the Notes under this
Indenture) may, at the option of the Trustee, set forth in writing any action
proposed to be
58
taken or omitted by the Trustee under this Indenture and the date on and/or
after which such action shall be taken or such omission shall be effective. The
Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date
specified in such application (which date shall not be less than three (3)
Business Days after the date any officer of the Company actually receives such
application, unless any such officer shall have consented in writing to any
earlier date), unless, prior to taking any such action (or the effective date in
the case of any omission), the Trustee shall have received written instructions
in response to such proposal specifying the action to be taken or omitted.
ARTICLE 9
CONCERNING THE NOTEHOLDERS
SECTION 9.01. Action by Noteholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Noteholders
in person or by agent or proxy appointed in writing, or (b) by the record of the
Noteholders voting in favor thereof at any meeting of Noteholders duly called
and held in accordance with the provisions of Article 10, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the taking
of any action by the holders of the Notes, the Company or the Trustee may fix,
but shall not be required to, in advance of such solicitation, a date as the
record date for determining Noteholders entitled to take such action. The record
date if one is selected shall be not more than fifteen (15) days prior to the
date of commencement of solicitation of such action.
SECTION 9.02. Proof of Execution by Noteholders. Subject to the provisions
of Section 8.01, Section 8.02 and Section 10.05, proof of the execution of any
instrument by a Noteholder or his agent or proxy shall be sufficient if made in
accordance with such rules and regulations as may be prescribed by the Trustee
or in such manner as shall be satisfactory to the Trustee. The holding of Notes
shall be proved by the Note register or by a certificate of the Note Registrar.
The record of any Noteholders' meeting shall be proved in the manner provided in
Section 10.06.
SECTION 9.03. Who Are Deemed Absolute Owners. The Company, the Trustee,
any authenticating agent, any Paying Agent, any Conversion Agent and
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any Note Registrar may deem the person in whose name such Note shall be
registered upon the Note Register to be, and may treat him as, the absolute
owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of ownership or other writing thereon made by any
Person other than the Company or any Note Registrar) for the purpose of
receiving payment of or on account of the principal of, premium, if any, and
accrued and unpaid interest on such Note, for conversion of such Note and for
all other purposes; and neither the Company nor the Trustee nor any Paying Agent
nor any Conversion Agent nor any Note Registrar shall be affected by any notice
to the contrary. All such payments so made to any holder for the time being, or
upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
such Note. Notwithstanding anything to the contrary in this Indenture or the
Notes following an Event of Default, any holder of a beneficial interest in a
Global Note may directly enforce against the Company, without the consent,
solicitation, proxy, authorization or any other action of the Depositary or any
other person, such holder's right to exchange such beneficial interest for a
Note in certificated form in accordance with the provisions of this Indenture.
SECTION 9.04. Company-Owned Notes Disregarded. In determining whether the
holders of the requisite aggregate principal amount of Notes have concurred in
any direction, consent, waiver or other action under this Indenture, Notes that
are owned by the Company or any other obligor on the Notes or by any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on such Notes shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, consent, waiver or other
action only Notes that a Responsible Officer knows are so owned shall be so
disregarded. Notes so owned that have been pledged in good faith may be regarded
as outstanding for the purposes of this Section 9.04 if the pledgee shall
establish to the satisfaction of the Trustee the pledgee's right to vote such
Notes and that the pledgee is not the Company, any other obligor on the Notes or
a person directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In the case
of a dispute as to such right, any decision by the Trustee taken upon the advice
of counsel shall be full protection to the Trustee. Upon request of the Trustee,
the Company shall furnish to the Trustee promptly an Officers' Certificate
listing and identifying all Notes, if any, known by the Company to be owned or
held by or for the account of any of the above described persons; and, subject
to Section 8.01, the Trustee shall be entitled to accept such Officers'
Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Notes not listed therein are outstanding for the purpose of any
such determination.
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SECTION 9.05. Revocation of Consents; Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
9.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Notes specified in this Indenture in connection with
such action, any holder of a Note that is shown by the evidence to be included
in the Notes the holders of which have consented to such action may, by filing
written notice with the Trustee at its Corporate Trust Office and upon proof of
holding as provided in Section 9.02, revoke such action so far as concerns such
Note. Except as aforesaid, any such action taken by the holder of any Note shall
be conclusive and binding upon such holder and upon all future holders and
owners of such Note and of any Notes issued in exchange or substitution
therefor, irrespective of whether any notation in regard thereto is made upon
such Note or any Note issued in exchange or substitution therefor.
ARTICLE 10
NOTEHOLDERS' MEETINGS
SECTION 10.01. Purpose of Meetings. A meeting of Noteholders may be called
at any time and from time to time pursuant to the provisions of this Article 10
for any of the following purposes:
(a) to give any notice to the Company or to the Trustee or to give any
directions to the Trustee permitted under this Indenture, or to consent to
the waiving of any default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of Article 7;
(b) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article 8;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.02; or
(d) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Notes under
any other provision of this Indenture or under applicable law.
SECTION 10.02. Call of Meetings by Trustee. The Trustee may at any time at
the expense of the Company call a meeting of Noteholders to take any action
specified in Section 10.01, to be held at such time and at such place as the
Trustee shall determine. Notice of every meeting of the Noteholders, setting
forth the time and the place of such meeting and in general terms the action
proposed to be taken at such meeting and the establishment of any record date
pursuant to
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Section 9.01, shall be mailed to holders of such Notes at their addresses as
they shall appear on the Note register. Such notice shall also be mailed to the
Company. Such notices shall be mailed not less than twenty (20) nor more than
ninety (90) days prior to the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the holders of
all Notes then outstanding are present in person or by proxy or if notice is
waived before or after the meeting by the holders of all Notes outstanding, and
if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
SECTION 10.03. Call of Meetings by Company or Noteholders. In case at any
time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Notes then
outstanding, shall have requested the Trustee to call a meeting of Noteholders,
by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have mailed the notice of such
meeting within twenty (20) days after receipt of such request, then the Company
or such Noteholders may determine the time and the place for such meeting and
may call such meeting to take any action authorized in Section 10.01, by mailing
notice thereof as provided in Section 10.02.
SECTION 10.04. Qualifications for Voting. To be entitled to vote at any
meeting of Noteholders a person shall (a) be a holder of one or more Notes on
the record date pertaining to such meeting or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Notes. The only
persons who shall be entitled to be present or to speak at any meeting of
Noteholders shall be the persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
SECTION 10.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 10.03, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent
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secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to vote
at the meeting.
Subject to the provisions of Section 9.04, at any meeting of Noteholders
each Noteholder or proxyholder shall be entitled to one vote for each US$1,000
principal amount of Notes held or represented by him; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Note challenged
as not outstanding and ruled by the chairman of the meeting to be not
outstanding. The chairman of the meeting shall have no right to vote other than
by virtue of Notes held by him or instruments in writing as aforesaid duly
designating him as the proxy to vote on behalf of other Noteholders. Any meeting
of Noteholders duly called pursuant to the provisions of Section 10.02 or
Section 10.03 may be adjourned from time to time by the holders of a majority of
the aggregate principal amount of Notes represented at the meeting, whether or
not constituting a quorum, and the meeting may be held as so adjourned without
further notice.
SECTION 10.06. Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the Noteholders or of their representatives by proxy and the
principal amount of the Notes held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 10.02. The record shall show the principal amount of the Notes voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
SECTION 10.07. No Delay of Rights by Meeting. Nothing contained in this
Article 10 shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of
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any right or rights conferred upon or reserved to the Trustee or to the
Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE 11
SUPPLEMENTAL INDENTURES
SECTION 11.01. Supplemental Indentures without Consent of Noteholders.
Notwithstanding anything herein to the contrary, the Company and the Trustee,
without the consent of any holder and at the Company's expense, may from time to
time and at any time enter into an indenture or indentures supplemental hereto
for one or more of the following purposes:
(a) to cure any ambiguity, omission, defect or inconsistency;
(b) to provide for the assumption by a Successor Company, partnership,
trust or limited liability company of the obligations of the Company under
this Indenture pursuant to Article 12;
(c) to provide for uncertificated Notes in addition to or in place of
certificated Notes (provided that the uncertificated Notes are issued in
registered form for purposes of Section 163(f) of the Code, or in a manner
such that the uncertificated Notes are described in Section 163(f)(2)(B) of
the Code);
(d) to add guarantees with respect to the Notes;
(e) to secure the Notes;
(f) to add to the covenants of the Company for the benefit of the
holders or surrender any right or power conferred upon the Company;
(g) make any changes or modifications to this Indenture necessary in
connection with the registration of the public offer and sale of the Notes
under the Securities Act pursuant to the Registration Rights Agreement or
the qualification of this Indenture under the Trust Indenture Act;
(h) evidence and provide for the acceptance of the appointment of a
successor Trustee under the Indenture;
(i) to make any necessary change to permit the conversion of the Notes
into Ordinary Shares, if any, as a result of the termination of the
Company's ADS facility; or
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(j) to make any change that does not materially adversely affect the
rights of any holder, provided that any amendment made solely to conform
the provisions of this Indenture or the Notes to the "Description of Notes"
as set forth in the Offering Memorandum will not be deemed to materially
adversely affect the rights of any holder.
Upon the written request of the Company, accompanied by a Board Resolution
authorizing the execution of such supplemental indenture, the Trustee is hereby
authorized to join with the Company in the execution of any such supplemental
indenture, to make any further appropriate agreements and stipulations which may
be therein contained and to accept the conveyance, transfer and assignment of
any property thereunder, but the Trustee shall not be obligated to, but may in
its discretion, enter into any supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
11.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Notes at the time outstanding.
SECTION 11.02. Supplemental Indentures with Consent of Noteholders. With
the consent (evidenced as provided in Article 9) of the holders of at least a
majority in aggregate principal amount of the Notes at the time outstanding
(determined in accordance with Article 9 and including, without limitation,
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Notes), the Company, when authorized by the resolutions of the Board
of Directors, and the Trustee may from time to time and at any time enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or any supplemental indenture or of modifying in any manner the
rights of the holders of the Notes; provided, however, that no such supplemental
indenture shall:
(a) reduce the percentage in aggregate principal amount of Notes the
holders of which must consent to an amendment;
(b) reduce the rate, or extend the stated time for payment, of
interest (including Additional Interest) on any Note;
(c) reduce the principal amount, or extend the Maturity Date, of any
Note;
(d) change the place or currency of payment of principal or interest
in respect of any Note;
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(e) make any change that adversely affects the conversion rights of
any Notes;
(f) reduce the Fundamental Change Purchase Price, Redemption Price or
Put Right Purchase Price of any Note or amend or modify in any manner
adverse to the holders of the Notes the Company's obligation to make such
payments, whether through an amendment or waiver of provisions in the
covenants, definitions or otherwise;
(g) impair the right of any holder to receive payment of principal of,
and interest (including Additional Interest) on, such holder's Notes on or
after the due dates therefor or to institute suit for the enforcement of
any payment on or with respect to such holder's Note;
(h) make any change in the provisions of this Article 11 that require
each holder's consent or in the waiver provisions in Section 7.01 and
Section 7.07; or
(i) change the Company's obligation to pay Additional Amounts,
in each case without the consent of each holder of an outstanding Note affected.
Upon the written request of the Company, accompanied by a copy of the Board
Resolutions authorizing the execution of any such supplemental indenture, and
upon the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders under this
Section 11.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof. After an amendment under this Indenture becomes effective,
the Company shall mail to the holders a notice briefly describing such
amendment. However, the failure to give such notice to all the holders, or any
defect in the notice, will not impair or affect the validity of the amendment.
SECTION 11.03. Effect of Supplemental Indentures. Any supplemental
indenture executed pursuant to the provisions of this Article 11 shall comply
with the Trust Indenture Act, as then in effect, provided that this Section
11.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under
66
the terms of the Trust Indenture Act, nor shall it constitute any admission or
acknowledgment by any party to such supplemental indenture that any such
qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article 11, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitation of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the
Noteholders shall thereafter be determined, exercised and enforced hereunder
subject in all respects to such modifications and amendments and all the terms
and conditions of any such supplemental indenture shall be and be deemed to be
part of the terms and conditions of this Indenture for any and all purposes.
SECTION 11.04. Notation on Notes. Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of this
Article 11 may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may, at the Company's expense, be prepared and
executed by the Company, authenticated by the Trustee (or an authenticating
agent duly appointed by the Trustee pursuant to Section 17.11) and delivered in
exchange for the Notes then outstanding, upon surrender of such Notes then
outstanding.
SECTION 11.05. Evidence of Compliance of Supplemental Indenture to Be
Furnished to Trustee. In addition to the documents required by Section 17.05,
the Trustee shall receive an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article 11.
ARTICLE 12
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 12.01. Company May Consolidate, Etc. on Certain Terms.
Subject to the provisions of Section 12.02, the Company shall not
consolidate with, merge with or into, or convey, transfer or lease all or
substantially all of its assets and properties to another Person, unless:
(a) the resulting, surviving or transferee person (the "SUCCESSOR COMPANY")
if not the Company shall be a person organized and existing under the laws of
the Cayman Islands, the United States of America, any State thereof or
67
the District of Columbia and the Successor Company (if not the Company) shall
expressly assume, by supplemental indenture, executed and delivered to the
Trustee, in form satisfactory to the Trustee, all the obligations of the Company
under the Notes and this Indenture and, to the extent that it is otherwise still
operative, shall expressly assume all the obligations of the Company under the
Registration Rights Agreement; and
(b) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing.
For purposes of this Section 12.01, the sale, lease, conveyance,
assignment, transfer, or other disposition of all or substantially all of the
properties and assets of one or more Subsidiaries of the Company, which
properties and assets, if held by the Company instead of such Subsidiaries,
would constitute all or substantially all of the properties and assets of the
Company on a consolidated basis, shall be deemed to be the transfer of all or
substantially all of the properties and assets of the Company.
SECTION 12.02. Successor Corporation to Be Substituted. In case of any
such consolidation, merger, conveyance, transfer or lease and upon the
assumption by the Successor Company, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of and premium, if any, and accrued and unpaid
interest on all of the Notes, the due and punctual conversion of the Notes and
the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, such Successor Company shall succeed
to and be substituted for the Company and the Company shall be released from
those obligations, with the same effect as if it had been named herein as the
party of the first part. Such Successor Company thereupon may cause to be
signed, and may issue either in its own name or in the name of the Company any
or all of the Notes issuable hereunder which theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such
Successor Company instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver, or cause to be authenticated and delivered, any
Notes which previously shall have been signed and delivered by the officers of
the Company to the Trustee for authentication, and any Notes which such
Successor Company thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Notes theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Notes had been issued at the date of the execution hereof. In the event
of any such consolidation, merger, conveyance, transfer or lease, the person
named as the "Company" in the first paragraph of this Indenture or any successor
which
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shall thereafter have become such in the manner prescribed in this Article 12
may be dissolved, wound up and liquidated at any time thereafter and such person
shall be released from its liabilities as obligor and maker of the Notes and
from its obligations under this Indenture.
In case of any such consolidation, merger, conveyance, transfer or lease,
such changes in phraseology and form (but not in substance) may be made in the
Notes thereafter to be issued as may be appropriate.
SECTION 12.03. Officer's Certificate and Opinion of Counsel to be Given
Trustee. No merger, consolidation, sale transfer or lease shall be effective
unless the Trustee shall receive an Officers' Certificate and an Opinion of
Counsel as conclusive evidence that any such consolidation, merger, conveyance,
transfer or lease and any such assumption complies with the provisions of this
Article 12.
ARTICLE 13
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 13.01. Discharge of Indenture. When (a) the Company shall deliver
to the Note Registrar for cancellation all Notes theretofore authenticated
(other than any Notes that have been destroyed, lost or stolen and in lieu of or
in substitution for which other Notes shall have been authenticated and
delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Note Registrar for cancellation shall have become
due and payable, whether on the Maturity Date or on any earlier Fundamental
Change Purchase Date, Put Right Purchase Date or Redemption Date, or otherwise,
and the Company shall deposit with the Trustee, in trust, cash or securities, as
applicable, sufficient to pay at maturity all of the Notes (other than any Notes
that shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
not theretofore canceled or delivered to the Trustee for cancellation, including
principal and premium, if any, and accrued and unpaid interest (including any
Additional Interest) due thereon, and if the Company shall also pay or cause to
be paid all other sums payable hereunder by the Company, then this Indenture
shall cease to be of further effect except as to (i) the right of holders to
receive payments of principal of and premium, if any, and accrued and unpaid
interest if any (including any Additional Interest), and any unpaid Conversion
Obligation and Additional ADSs, if any, on the Notes and the other rights,
duties and obligations of Noteholders, as beneficiaries hereof with respect to
the amounts, if any, so deposited with the Trustee, (ii) the rights, obligations
and immunities of the Trustee hereunder and (iii) the obligations of the Company
under Section 8.06, and the Trustee, on written demand of the Company
accompanied by an Officers'
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Certificate and an Opinion of Counsel as required by Section 17.06 and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture; the Company, however, hereby
agrees to reimburse the Trustee for any costs or expenses thereafter properly
incurred by the Trustee and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Notes. For the avoidance of doubt, the obligations of the
Company to reimburse the Trustee under this Section 13.01 shall survive the
satisfaction and discharge of this Indenture.
SECTION 13.02. Deposited Monies to Be Held in Trust by Trustee. Subject to
Section 13.04, all monies deposited with the Trustee pursuant to Section 13.01
shall be held in trust and applied by it to the payment, either directly or
through any Paying Agent (including the Company if acting as its own Paying
Agent), to the holders of the particular Notes for the payment of which such
monies have been deposited with the Trustee, of all sums due thereon for
principal and premium and accrued and unpaid interest.
SECTION 13.03. Paying Agent to Repay Monies Held. Upon the satisfaction
and discharge of this Indenture, all monies then held by any Paying Agent of the
Notes (other than the Trustee) shall, upon written request of the Company, be
repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be
released from all further liability with respect to such monies.
SECTION 13.04. Return of Unclaimed Monies. Subject to the requirements of
applicable law, any monies deposited with or paid to the Trustee or any Paying
Agent for payment of the principal of, premium, if any, or accrued and unpaid
interest on Notes and not applied but remaining unclaimed by the Noteholders for
two years after the date upon which the principal of, premium, if any, or
accrued and unpaid interest on such Notes, as the case may be, shall, unless
otherwise required by mandatory provisions of applicable abandoned property laws
have become due and payable, shall be repaid to the Company by the Trustee or
such Paying Agent on written request and all liability of the Trustee or any
Paying Agent shall thereupon cease with respect to such monies; and the holder
of any of the Notes shall thereafter look only to the Company for any payment
which such holder may be entitled to collect unless an applicable abandoned
property law designates another person. The Trustee shall, promptly after such
payment of the principal of, premium, if any, or accrued and unpaid interest on
Notes, as described in this Section 13.04 and upon written request of the
Company, return to the Company any funds in excess of the amount required for
such payment.
SECTION 13.05. Reinstatement. If (i) the Trustee or the Paying Agent is
unable to apply any money in accordance with Section 13.02 by reason of any
70
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application and (ii) the holders of at least a
majority in principal amount of the then outstanding Notes so request by written
notice to the Trustee, the Company's obligations under this Indenture shall be
revived and reinstated as though no deposit had occurred pursuant to Section
13.01 until such time as the Trustee or the Paying Agent is permitted to apply
all such money in accordance with Section 13.02; provided, however, that if the
Company makes any payment of interest (including any Additional Interest) on or
principal of any Note following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Noteholders to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE 14
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 14.01. Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or accrued and
unpaid interest on any Note, or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this Indenture or in any supplemental indenture or
in any Note, or because of the creation of any indebtedness represented thereby,
shall be had against any past, present or future incorporator, stockholder,
employee, agent, officer or director or Subsidiary of the Company as such or of
any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Notes.
ARTICLE 15
CONVERSION OF NOTES
SECTION 15.01. Conversion Privilege.
(a) Subject to the conditions described below and prior repurchase or
redemption, and upon compliance with the provisions of this Article 15, a
Noteholder shall have the right, at such holder's option, to convert all or any
portion (if the portion to be converted is US$1,000 principal amount or an
integral multiple thereof) of such Note at any time prior to the close of
business on the Business Day immediately preceding the Maturity Date at a rate
(the
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"CONVERSION RATE") of 52.2876 ADSs (subject to adjustment by the Company as
provided in Section 15.01(b) and Section 15.04) per US$1,000 principal amount
Note (the "CONVERSION OBLIGATION") under the circumstances and during the
periods set forth below. The Conversion Rate and the Conversion Price in effect
at any given time are referred to herein as the "APPLICABLE CONVERSION RATE" and
the "APPLICABLE CONVERSION PRICE," respectively.
(i) The Notes shall be convertible at any time prior to the close of
business on the Business Day prior to the Redemption Date, even if the
Notes are not otherwise convertible at such time, if such Notes have been
called for redemption pursuant to Article 3 hereof. Notes in respect of
which a holder has delivered a Put Right Purchase Notice or a Fundamental
Change Purchase Notice may not be surrendered for conversion until the
holder has withdrawn such relevant notice in accordance with Article 16.
(b) (i) If a Noteholder elects to convert Notes in connection with a
Make-Whole Change in Control, the Conversion Rate applicable to each US$1,000
principal amount of Notes so converted shall be increased by an additional
number of ADSs (the "ADDITIONAL ADSS") as described below. Settlement of Notes
tendered for conversion to which Additional ADSs shall be added to the
Conversion Rate as provided in this subsection shall be settled pursuant to
Section 15.02(d) below. For purposes of this Section 15.01(b), a conversion
shall be deemed to be "in connection" with a Make-Whole Change in Control if the
Conversion Notice with respect to such Notes is received by the Conversion Agent
from, and including, the Effective Date of the Make-Whole Change in Control up
to, and including the Business Day immediately prior to the related Fundamental
Change Purchase Date (or, in the case of an event that would have been a Change
in Control but for the proviso in the clause (b) of the definition thereof, the
35th Trading Day immediately following the Effective Date of such Make-Whole
Change in Control).
On or before the 15th day after the occurrence of a Make-Whole Change in
Control that does not also constitute a Change in Control, the Company will mail
to the Trustee and to all holders of Notes at their addresses shown in the Note
Register, and to Beneficial Owners or Notes, as required by applicable law, a
notice indicating that a Make-Whole Change in Control has occurred.
(ii) The number of Additional ADSs by which the Conversion Rate will
be increased shall be determined by reference to the table attached as
Schedule A hereto, based on the date on which the Make-Whole Change in
Control occurs or becomes effective (the "EFFECTIVE DATE"), and the ADS
Price; provided that if the actual ADS Price is between two ADS Price
amounts in the table or the Effective Date is
72
between two Effective Dates in the table, the number of Additional ADSs
shall be determined by a straight-line interpolation between the number of
Additional ADSs set forth for the next higher and next lower ADS Price
amounts and the two nearest Effective Dates set forth in such table, as
applicable, based on a 365-day year; provided further that if (1) the ADS
Price is greater than US$150.00 per ADS (subject to adjustment in the same
manner as set forth in Section 15.04), no Additional ADSs will be added to
the Conversion Rate, and (2) the ADS Price is less than US$15.00 per ADS
(subject to adjustment in the same manner as set forth in Section 15.04),
no Additional ADSs will be added to the Conversion Rate. Notwithstanding
the foregoing, in no event will the total number of ADSs issuable upon
conversion exceed 66.6667 per US$1,000 principal amount of Notes (subject
to adjustment in the same manner as set forth in Section 15.04).
(iii) The ADS Prices set forth in the first row of the table in
Schedule A hereto shall be adjusted as of any date on which the Conversion
Rate of the Notes is otherwise adjusted. The adjusted ADS Prices shall
equal the ADS Prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Conversion Rate in
effect immediately prior to the adjustment giving rise to the ADS Price
adjustment and the denominator of which is the Conversion Rate as so
adjusted. The number of Additional ADSs within the table shall be adjusted
in the same manner as the Conversion Rate as set forth in Section 15.04
(other than by operation of an adjustment to the Conversion Rate by adding
Additional ADSs).
SECTION 15.02. Conversion Procedure.
(a) Subject to Section 15.02(b), the Company will satisfy the Conversion
Obligation with respect to each US$1,000 principal amount of Notes tendered for
conversion in fully paid ADSs, if any, by delivering, on or prior to the third
Trading Day after the relevant Conversion Date, to the holder of a number of
ADSs equal to (i) (A) the aggregate principal amount of Notes to be converted,
divided by (B) 1,000, multiplied by (ii) the applicable Conversion Rate;
provided that the Company will deliver cash in lieu of fractional ADSs as set
forth pursuant to clause (k) below.
(b) Notwithstanding Section 15.02(a), the Company shall satisfy the
Conversion Obligation with respect to each US$1,000 principal amount of Notes
tendered for conversion to which Additional ADSs shall be added to the
Conversion Rate as set forth in Section 15.01(b) in the manner provided in
Section 15.02(a) (based on the Conversion Rate as increased by the applicable
Additional ADSs).
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(c) Before any holder of a Note shall be entitled to convert the same as
set forth above, such holder shall (A) in the case of a Global Note, comply with
the procedures of the Depositary in effect at that time and, if required, pay
funds equal to interest payable on the next Interest Payment Date to which such
holder is not entitled as set forth in Section 15.02(i), and (B) in the case of
a Note issued in certificated form, (1) complete and manually sign and deliver
an irrevocable written notice to the Conversion Agent in the form on the reverse
of such certificated Note (or a facsimile thereof) attached hereto as part of
Exhibit A (a "CONVERSION NOTICE") at the office of the Conversion Agent and
shall state in writing therein the principal amount of Notes to be converted and
the name or names (with addresses) in which such holder wishes the certificate
or certificates for any ADSs, if any, to be delivered upon settlement of the
Conversion Obligation to be registered, (2) surrender such Notes, duly endorsed
to the Company or in blank (and accompanied by appropriate endorsement and
transfer documents), at the office of the Conversion Agent, (3) if required, pay
funds equal to interest payable on the next Interest Payment Date to which such
holder is not entitled as set forth in Section 15.02(i), and (4) if required,
furnish written acknowledgements, certifications and agreements in connection
with the issuance of ADSs by the ADS Depositary upon deposit of the Ordinary
Shares. A Note shall be deemed to have been converted immediately prior to the
close of business on the date (the "CONVERSION DATE") that the holder has
complied with the requirements set forth in this Section 15.02(c).
No Conversion Notice with respect to any Notes may be tendered by a holder
thereof if such holder has also tendered a Put Right Purchase Notice or a
Fundamental Change Purchase Notice and not validly withdrawn such Put Right
Purchase Notice or Fundamental Change Purchase Notice in accordance with the
applicable provisions of Section 16.01 or 16.02, as the case may be.
If more than one Note shall be surrendered for conversion at one time by
the same holder, the Conversion Obligation with respect to such Notes, if any,
that shall be payable upon conversion shall be computed on the basis of the
aggregate principal amount of the Notes (or specified portions thereof to the
extent permitted thereby) so surrendered.
(d) Delivery of the ADSs to be delivered in satisfaction of the Conversion
Obligation shall be made by the Company in no event later than the date
specified in Section 15.02(a). The Company shall make such delivery by issuing,
or causing to be issued, and delivering to the Conversion Agent or to such
holder, or such holder's nominee or nominees, certificates or a book-entry
transfer through the Depositary for the number of full ADSs to which such holder
shall be entitled as part of such Conversion Obligation (together with any cash
in lieu of fractional ADSs).
74
(e) In case any Note shall be surrendered for partial conversion, the
Company shall execute and the Trustee shall authenticate and deliver to or upon
the written order of the holder of the Note so surrendered, without charge to
such holder, a new Note or Notes in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Notes.
(f) If a holder submits a Note for conversion, the Company will pay (1) all
documentary stamp or similar issue or transfer tax, if any, which may be imposed
by a Relevant Taxing Jurisdiction, the Cayman Islands or the PRC or any
political subdivision thereof or taxing authority thereof or therein with
respect to the issuance and delivery of ADSs, if any, upon the conversion,
provided that, the holder shall pay any such tax which is due because the holder
requests any ADSs to be issued in a name other than the holder's name, (2) any
taxes or duties due from the holder or the Company in a Relevant Taxing
Jurisdiction, the Cayman Islands or the PRC upon the issuance and delivery of
any ADSs to the holder upon conversion and any capital gain or withholding tax
related to the conversion of the Notes into ADSs, (3) any issuance fees
associated with delivery and receipt of ADSs, which shall be payable
concurrently with the issuance and delivery of ADSs by the ADS Depositary and
(4) any other costs or expenses incurred in connection with the issuance and
delivery of any ADSs upon conversion. The Conversion Agent may refuse to deliver
the certificates representing the ADSs being issued in a name other than the
holder's name until the Trustee receives a sum sufficient to pay any tax which
will be due because the ADSs are to be issued in a name other than the holder's
name. The Conversion Agent shall be entitled to assume, without duty to enquire,
each converting holder has, as a condition precedent to exercising its
conversion right, paid all stamp, issue, registration, and similar taxes or
duties or transfer costs which it is required to pay. None of the Conversion
Agent or the Trustee shall be responsible or liable for: (i) determining whether
a holder or the Company is liable to pay any taxes or the amounts payable (if
any), (ii) any failure by any holder or the Company to make any such payment to
the relevant authorities; or (iii) determining the sufficiency or insufficiency
of any amounts so paid
(g) Except as provided in Section 15.04, no adjustment shall be made for
dividends on any Ordinary Shares issued upon the conversion of any Note as
provided in this Article.
(h) Upon the conversion of an interest in a Global Note, the Trustee, or
the Custodian at the direction of the Trustee, shall make a notation on such
Global Note as to the reduction in the principal amount represented thereby. The
Company shall notify the Trustee in writing of any conversion of Notes effected
through any Conversion Agent other than the Trustee.
75
(i) Upon conversion, a Noteholder will not receive any separate cash
payment for accrued and unpaid interest except as set forth below. The Company's
settlement of the Conversion Obligations as described above shall be deemed to
satisfy its obligation to pay the principal amount of the Note and accrued and
unpaid interest and Additional Interest, if any, to, but not including, the
Conversion Date. As a result, accrued and unpaid interest and Additional
Interest, if any, to, but not including, the Conversion Date shall be deemed to
be paid in full rather than cancelled, extinguished or forfeited.
Notwithstanding the preceding sentence, if Notes are converted after the close
of business on a regular record date and prior to the opening of business of the
next succeeding Interest Payment Date, holders of such Notes as of the close of
business on a regular record date will receive the interest (including any
Additional Interest) payable on such Notes on the corresponding Interest Payment
Date notwithstanding the conversion. 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 must be accompanied by
payment of an amount equal to the interest (including any Additional Interest)
payable on the Notes so converted; provided, however, that no such payment need
be made (1) if the Company has specified a Redemption Date that is after a
regular record date but on or prior to the next succeeding Interest Payment
Date; (2) if the Company has specified a (Fundamental Change Purchase Date) that
is after a regular record date but on or prior to the next succeeding Interest
Payment Date, (3) in respect of any conversion that occurs after the record date
immediately preceding the applicable Maturity Date or (4) to the extent of any
overdue interest (including Additional Interest) existing at the time of
conversion with respect to such Note. Except as described above, no payment or
adjustment will be made for accrued interest on converted Notes.
(j) The Person in whose name the certificate for any ADSs issued upon
conversion is registered shall be treated as a record holder of ADSs on and
after the Conversion Date; provided, however, that no surrender of Notes on any
date when the stock transfer books of the Company shall be closed shall be
effective to constitute the Person or Persons entitled to receive the ADSs upon
such conversion as the record holder or holders of such ADSs on such date, but
such surrender shall be effective to constitute the Person or Persons entitled
to receive such ADSs as the record holder or holders thereof for all purposes at
the close of business on the next succeeding day on which such stock transfer
books are open; such conversion shall be at the Conversion Rate in effect on the
date that such Notes shall have been surrendered for conversion, as if the stock
transfer books of the Company had not been closed. Upon conversion of Notes,
such Person shall no longer be a Noteholder.
(k) No fractional ADSs shall be issued upon conversion of any Note or
Notes. If more than one Note shall be surrendered for conversion at one time by
76
the same holder, the number of full ADSs that 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
ADS that 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 an ADS) in an amount
equal to the same fraction of the Last Reported Sale Price of the ADSs on the
relevant Conversion Date.
SECTION 15.03. [Intentionally Omitted].
SECTION 15.04. Adjustment of Conversion Rate. The Conversion Rate shall be
adjusted from time to time by the Company as follows:
(a) In case the Company shall issue Ordinary Shares as a dividend or
distribution to holders of the outstanding Ordinary Shares (including Ordinary
Share bonus or as a result of the capitalization of profit or reserves), or
shall effect a subdivision into a greater number of Ordinary Shares or
combination into a lesser number of Ordinary Shares, the Conversion Rate shall
be adjusted based on the following formula:
OS'
CR'= CR(0) x -----
OS(0)
where
CR(0) = the Conversion Rate in effect immediately prior to the Record
Date for such dividend or distribution, or the effective date of
such Ordinary Share subdivision or Ordinary Share combination, as
the case may be;
CR' = the Conversion Rate in effect immediately after the close of
business on the Record Date for such dividend or distribution, or
the effective date of such Ordinary Share subdivision or Ordinary
Share combination, as the case may be;
OS(0) = the number of Ordinary Shares outstanding immediately prior to the
Record Date for such dividend or distribution, or the effective
date of such Ordinary Share subdivision or Ordinary Share
combination, as the case may be; and
OS' = the number of Ordinary Shares outstanding immediately after the
close of business on the Record Date for such
77
dividend or distribution, or the effective date of such Ordinary
Share subdivision or Ordinary Share combination, as the case may
be.
Such adjustment shall become effective immediately prior to 9:00 a.m., New York
City time, on the Ex-Dividend Date for such dividend or distribution or the
effective date of such Ordinary Share subdivision or Ordinary Shares
combination, as the case may be. If any dividend or distribution of the type
described in this Section 15.04(a) is declared but not so paid or made, or the
outstanding Ordinary Shares are not subdivided or combined, as the case may be,
the Conversion Rate shall be immediately readjusted, effective as of the date
the Board of Directors determines not to pay such dividend or distribution, or
subdivide or combine the outstanding Ordinary Shares, as the case may be, to the
Conversion Rate that would then be in effect if such dividend, distribution,
subdivision or combination had not been declared.
(b) In case the Company shall issue to all or substantially all holders of
its outstanding Ordinary Shares rights (including subscription bonuses) or
warrants entitling them (for a period expiring within forty-five (45) calendar
days from the Record Date for such distribution) to subscribe for or purchase
Ordinary Shares at a price per Ordinary Share less than the Last Reported Sale
Price of the ADSs divided by the applicable number of Ordinary Shares
represented by one ADS on the Trading Day immediately preceding the date of
announcement of such distribution, the Conversion Rate shall be adjusted based
on the following formula:
OS(0) + X
CR'= CR(0) x ---------
OS(0) + Y
where
CR(0) = the Conversion Rate in effect immediately prior to the Record Date
for such distribution;
CR' = the Conversion Rate in effect immediately after the close of
business on the Record Date for such distribution;
OS(0) = the number of Ordinary Shares outstanding immediately prior to the
Ex-Dividend Date for such distribution;
X = the total number of Ordinary Shares issuable pursuant to such
rights; and
78
Y = the number of Ordinary Shares equal to the aggregate price payable
to exercise such rights or warrants divided by the quotient of (i)
the average of the Last Reported Sale Prices of ADSs over the ten
consecutive Trading-Day period ending on the Business Day
immediately preceding the Record Date for such distribution,
divided by (ii) the then applicable number of Ordinary Shares
represented by one ADS.
Such adjustment shall be successively made whenever any such rights or warrants
are issued and shall become effective immediately prior to 9:00 a.m., New York
City time, on the Ex-Dividend Date for such distribution. If such rights or
warrants are not so issued, the Conversion Rate shall again be adjusted to be
the Conversion Rate that would then be in effect if such Record Date for such
distribution had not been fixed. To the extent that such rights or warrants are
not exercised prior to their expiration or Ordinary Shares are not delivered
after the expiration of such rights or warrants, the Conversion Rate shall be
readjusted to the Conversion Rate that would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made on the
basis of delivery of only the number of Ordinary Shares actually delivered.
In determining whether any rights or warrants entitle the holders to subscribe
for or purchase Ordinary Shares at less than such Last Reported Sale Price, and
in determining the aggregate offering price of such Ordinary Shares, there shall
be taken into account any consideration received by the Company for such rights
or warrants and any amount payable on exercise thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors.
(c) In case the Company shall, by dividend or otherwise, distribute to all
or substantially all holders of its Ordinary Shares shares of any class of
Capital Stock of the Company (other than Ordinary Shares as covered by Section
15.04(a)), evidences of its indebtedness or other assets or property or rights
to acquire Capital Stock or other securities of the Company (including
securities, but excluding rights or warrants covered by Section 15.04(b) or
dividends or distributions covered by Section 15.04(a) and 15.04(d) and
distributions described below in this paragraph (c) with respect to Spin-Offs)
(any of such shares of Capital Stock, indebtedness, or other asset or property
hereinafter in this Section 15.04(c) called the "DISTRIBUTED PROPERTY"), then,
in each such case the Conversion Rate shall be adjusted based on the following
formula:
SP(0)
CR'= CR(0) x -----------
SP(0) - FMV
where
79
CR(0) = the Conversion Rate in effect immediately prior to the Record Date
for such distribution;
CR' = the Conversion Rate in effect immediately after the close of
business on the Record Date for such distribution;
SP(0) = the average of the Last Reported Sale Prices of the ADSs over the
ten consecutive Trading-Day period ending on the Trading Day
immediately preceding the Ex-Dividend Date for such distribution
divided by the then applicable number of Ordinary Shares
represented by one ADS; and
FMV = the fair market value (as determined by the Board of Directors) of
the Distributed Property distributed with respect to each
outstanding Ordinary Share on the Record Date for such
distribution.
Such adjustment shall become effective immediately prior to 9:00 a.m., New York
City time, on the Ex-Dividend Date for such distribution; provided that if the
then fair market value (as so determined) of the portion of the Distributed
Property so distributed applicable to one Ordinary Share is equal to or greater
than SP(0) as set forth above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Noteholder shall have the right to receive,
for each US$1,000 principal amount of Notes upon conversion, the amount of
Distributed Property such holder would have received had such holder owned a
number of Ordinary Shares equal to the Conversion Rate on the Record Date. If
such dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that 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 15.04(c) by reference to the actual or when issued trading market for
any securities, it must in doing so consider the prices in such market over the
same period used in determining SP(0) above.
With respect to an adjustment pursuant to this Section 15.04(c) where there has
been a payment of a dividend or other distribution on the Ordinary Shares in
shares of Capital Stock of any class or series, or similar equity interest, of
or relating to a Subsidiary or other business unit (a "SPIN-OFF"), the
Conversion Rate will be adjusted based on the following formula:
FMV(0) + MP(0)
CR'= CR(0) x --------------
MP(0)
where
80
CR(0) = the Conversion Rate in effect immediately prior to the end of the
Valuation Period;
CR' = the Conversion Rate in effect immediately after the end of the
Valuation Period;
FMV(0) = the average of the Last Reported Sale Prices of the Capital Stock
or similar equity interest distributed to holders of Ordinary
Shares applicable to one Ordinary Share over the first ten
consecutive Trading-Day period beginning on and including the
fifth Trading Day after the effective date of the Spin-Off (the
"VALUATION PERIOD"); and
MP(0) = the average of the Last Reported Sale Prices of ADSs over the
Valuation Period, divided by the then applicable number of
Ordinary Shares represented by one ADS.
Such adjustment shall occur on the close of business on the fifteenth Trading
Day immediately following, and including, the effective date of the Spin-Off. As
a result, any conversion within the fifteen Trading Days following the effective
date of any Spin-Off will be deemed not to have occurred until the end of such
fifteen Trading Day period.
Rights or warrants distributed by the Company to all holders of Ordinary
Shares, entitling the holders thereof to subscribe for or purchase shares of the
Company's Capital Stock, including Ordinary Shares (either initially or under
certain circumstances), which rights or warrants, until the occurrence of a
specified event or events ("TRIGGER EVENT"): (i) are deemed to be transferred
with such Ordinary Shares; (ii) are not exercisable; and (iii) are also issued
in respect of future issuances of Ordinary Shares, shall be deemed not to have
been distributed for purposes of this Section 15.04(c) (and no adjustment to the
Conversion Rate under this Section 15.04(c) will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate adjustment (if any
is required) to the Conversion Rate shall be made under this Section 15.04(c).
If any such rights or warrants, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to events, upon the
occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets, property,
rights or warrants, then the date of the occurrence of any and each such event
shall be deemed to be the date of distribution and Ex-Dividend Date with respect
to new rights or warrants with such rights (and a termination or expiration of
the existing rights or warrants without exercise by any of the holders thereof).
In addition, in the event of any distribution (or deemed distribution) of rights
or warrants, or any Trigger Event or
81
other event (of the type described in the preceding sentence) with respect
thereto that was counted for purposes of calculating a distribution amount for
which an adjustment to the Conversion Rate under this Section 15.04(c) was made,
(1) in the case of any such rights or warrants that shall all have been redeemed
or repurchased without exercise by any holders thereof, the Conversion Rate
shall be readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per Ordinary Share redemption or repurchase price
received by a holder or holders of Ordinary Shares with respect to such rights
or warrants (assuming such holder had retained such rights or warrants), made to
all holders of Ordinary Shares as of the date of such redemption or repurchase,
and (2) in the case of such rights or warrants that shall have expired or been
terminated without exercise by any holders thereof, the Conversion Rate shall be
readjusted as if such rights and warrants had not been issued.
For purposes of this Section 15.04(c), Section 15.04(a) and Section
15.04(b), any dividend or distribution to which this Section 15.04(c) is
applicable that also includes Ordinary Shares to which Section 15.04(a) applies
or rights or warrants to subscribe for or purchase Ordinary Shares to which
Section 15.04(a) or Section 15.04(b) applies (or both), shall be deemed instead
to be (1) a dividend or distribution of the evidences of indebtedness, assets,
property or shares of capital stock other than such Ordinary Shares or rights or
warrants to which Section 15.04(b) applies (and any Conversion Rate adjustment
required by this Section 15.04(c) with respect to such dividend or distribution
shall then be made) immediately followed by (2) a dividend or distribution of
such Ordinary Shares or such rights or warrants (and any further Conversion Rate
adjustment required by Section 15.04(a) and Section 15.04(b) with respect to
such dividend or distribution shall then be made), except (A) the Ex-Dividend
Date of such dividend or distribution shall be substituted as "the Ex-Dividend
Date for such dividend or distribution" and "the Ex-Dividend Date for such
distribution" within the meaning of Section 15.04(a) and Section 15.04(b) and
(B) any Ordinary Shares included in such dividend or distribution shall not be
deemed "outstanding immediately prior to the Ex-Dividend Date for such dividend
or distribution" within the meaning of Section 15.04(a).
(d) In case the Company shall pay a dividend or make a distribution
consisting exclusively of cash to all or substantially all holders of its
Ordinary Shares (including as a result of capital reductions and Ordinary Share
redemptions or amortizations), the Conversion Rate shall be adjusted based on
the following formula:
SP(0)
CR'= CR(0) x ---------
SP(0) - C
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where
CR(0) = the Conversion Rate in effect immediately prior to the Record for
such dividend or distribution;
CR' = the Conversion Rate in effect immediately after the close of
business on the Record Date for such dividend or distribution;
SP(0) = the average of Last Reported Sale Prices of the ADSs over the ten
consecutive Trading-Day period ending on the Trading Day
immediately preceding the Record Date for such distribution,
divided by the then applicable number of Ordinary Shares
represented by one ADS; and
C = the full amount of such dividend or distribution per Ordinary Share
the Company distributes to holders of the Ordinary Shares.
Such adjustment shall become effective immediately prior to 9:00 a.m., New York
City time, on the Ex-Dividend Date for such dividend or distribution; provided
that if the portion of the cash so distributed applicable to one Ordinary Share
is equal to or greater than SP0 as above, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Noteholder shall have the right to
receive upon conversion of a Note (or any portion thereof) the amount of cash
such holder would have received had such holder owned a number of Ordinary
Shares equal to the Conversion Rate on the Record Date. If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
For the avoidance of doubt, for purposes of this Section 15.04(d), in the
event of any reclassification of the Ordinary Shares, as a result of which the
Notes become convertible into more than one class of Ordinary Shares, if an
adjustment to the Conversion Rate is required pursuant to this Section 15.04(d),
references in this Section to one Ordinary Share or Last Reported Sale Price of
one Ordinary Share shall be deemed to refer to a unit or to the price of a unit
consisting of the number of shares of each class of Ordinary Shares into which
the Notes are then convertible equal to the numbers of shares of such class
issued in respect of one Ordinary Share in such reclassification. The above
provisions of this paragraph shall similarly apply to successive
reclassifications.
(e) In case the Company or any of its Subsidiaries makes a payment in
respect of a tender offer or exchange offer for all or any portion of the
Ordinary
83
Shares, if (x) the cash and value of any other consideration included in the
payment per Ordinary Share exceeds (y) the Last Reported Sale Price of the ADSs
on the Trading Day immediately following the last date on which tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be
amended) divided by the then applicable number of Ordinary Shares represented by
one ADS, the Conversion Rate shall be adjusted based on the following formula:
AC + (SP' x OS')
CR'= CR(0) x ----------------
OS(0) x SP'
where
CR0 = the Conversion Rate in effect on the date immediately prior to the
effective date of the adjustment;
CR' = the Conversion Rate in effect on the second day immediately
following the effective date of the adjustment;
AC = the aggregate value of all cash and any other consideration (as
determined by the Board of Directors) paid or payable for Ordinary
Shares purchased in such tender or exchange offer;
OS(0) = the number of Ordinary Shares outstanding immediately prior to the
date such tender or exchange offer expires;
OS' = the number of Ordinary Shares outstanding immediately after the
date such tender or exchange offer expires; and
SP' = the average of the Last Reported Sale Prices of ADSs over the ten
consecutive Trading-Day period commencing on the Trading Day
immediately after the date such tender or exchange offer expires
divided by the then applicable number of Ordinary Shares
represented by one ADS,
such adjustment to become effective at the close of business on the tenth
Trading Day from and including the Trading Day immediately following the date
such tender or exchange offer expires. As a result, any conversion within such
ten trading-day period will be deemed not to have occurred until the end of such
ten Trading Day period. If the Company is obligated to purchase Ordinary Shares
pursuant to any such tender or exchange offer, but the Company is permanently
prevented by applicable law from effecting all or any such purchases or all or
any portion of such purchases are rescinded, the Conversion Rate shall again be
84
adjusted to be the Conversion Rate that would then be in effect if such tender
or exchange offer had not been made or had only been made in respect of the
purchases that had been effected.
(f) The applicable Conversion Rate will not be adjusted:
(i) if (other than in connection with a share combination) the
application of the foregoing formulae set forth in paragraph (a), (b), (c),
(d) or (e) of this Section 15.04 would result in a decrease in the
Conversion Rate;
(ii) upon the issuance of any Ordinary Shares to any present or future
plan providing for the reinvestment of dividends or interest payable on the
Company's securities and the investment of additional optional amounts in
Ordinary Shares under any such plan;
(iii) upon the issuance of any Ordinary Shares or options or rights to
purchase those Ordinary Shares pursuant to any present or future employee,
director or consultant benefit plan or program of or assumed by the Company
or any of the Company's Subsidiaries;
(iv) upon the issuance of any Ordinary Shares pursuant to any option,
warrant, right or exercisable, exchangeable or convertible security not
described in Section 15.04(c) and outstanding as of the date the Notes were
first issued;
(v) for a change in the par value of the Ordinary Shares;
(vi) for accrued and unpaid interest, if any;
(vii) if holders of the Notes participate, as a result of holding the
Notes, at the same time and in the same manner as holders of Ordinary
Shares, as if such holders of the Notes held a number of Ordinary Shares
equal to the then-applicable Conversion Rate, in any of the transactions
described in paragraph (a), (b), (c), (d) or (e) of this Section 15.04
without having to convert their Notes;
(viii) if holders of ADSs are not eligible to participate in any of
the transactions described in paragraph (a), (b), (c), (d) or (e) of this
Section 15.04; or
(ix) appropriate adjustments to the number of Ordinary Shares
represented by each ADS have been made for any of the transactions
described in paragraph (a), (b), (c), (d) or (e) of this Section 15.04.
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(g) For purposes of this Section 15.04 the term "RECORD DATE" shall mean,
with respect to any dividend, distribution or other transaction or event in
which the holders of Ordinary Shares have the right to receive any cash,
securities or other property or in which the Ordinary Shares (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) In addition to those required by clauses (a), (b), (c), (d) and (e) of
this Section 15.04, and to the extent permitted by applicable law and subject to
the applicable rules of the NASDAQ Global Market, the Company from time to time
may increase the Conversion Rate by any amount for a period of at least 20 days
if the Board of Directors determines that such increase would be in the
Company's best interest. In addition, the Company may also (but is not required
to) increase the Conversion Rate to avoid or diminish any income tax to holders
of Ordinary Shares or ADSs or rights to purchase Ordinary Shares or ADSs in
connection with any dividend or distribution of Ordinary Shares or ADSs (or
rights to acquire Ordinary Shares or ADSs) or similar event. Whenever the
Conversion Rate is increased pursuant to the preceding sentence, the Company
shall mail to the holder of each Note at his last address appearing on the Note
register provided for in Section 2.06 a notice of the increase at least fifteen
days prior to the date the increased Conversion Rate takes effect, and such
notice shall state the increased Conversion Rate and the period during which it
will be in effect.
(i) To the extent that the number of Ordinary Shares represented by each
ADS is changed, appropriate adjustments to the Conversion Rate adjustments
described above (which may include ignoring such provision, if appropriate) will
be made to reflect such change.
(j) All calculations and other determinations under this Article 15 shall
be made by the Company and shall be made to the nearest cent or to the nearest
one-ten thousandth (1/10,000) of an ADS, as the case may be. The Company shall
make all these calculations in good faith and, absent manifest error, its
calculations shall be final and binding on holders of Notes. The Company shall
provide a schedule of its calculations to each of the Trustee and the Conversion
Agent, and each of the Trustee and the Conversion Agent is entitled to rely
conclusively upon the accuracy of such calculations without independent
verification. The Trustee shall forward such calculations to any holder of Notes
upon the request of that holder. No adjustment shall be made for the Company's
issuance of Ordinary Shares or any securities convertible into or exchangeable
for Ordinary Shares or rights to purchase Ordinary Shares or such convertible or
exchangeable securities, other than as provided in this Section 15.04. No
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adjustment shall be made to the Conversion Rate unless such adjustment would
require a change of at least 1% in the Conversion Rate then in effect at such
time. The Company shall carry forward any adjustments that are less than 1% of
the Conversion Rate and make such carried forward adjustments, regardless of
whether the aggregate adjustment is less than 1%, within one year of the first
such adjustment carried forward, upon a Fundamental Change, upon any call of the
notes for redemption or upon maturity.
(k) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the Conversion Rate after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. The Trustee and Conversion Agent may conclusively rely on the
accuracy of the Conversion Rate adjustment provided by the Company. Unless and
until a Responsible Officer of the Trustee shall have received such Officers'
Certificate, the Trustee shall not be deemed to have knowledge of any adjustment
of the Conversion Rate and may assume without inquiry that the last Conversion
Rate of which it has knowledge is still in effect. Promptly after delivery of
such certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which
each adjustment becomes effective and shall mail such notice of such adjustment
of the Conversion Rate to the holder of each Note at his last address appearing
on the Note Register provided for in Section 2.06 of this Indenture, within
twenty (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.
(l) In any case in which this Section 15.04 provides that an adjustment
shall become effective at the close of business on the tenth Trading Day from
and including the Trading Day immediately following the date such tender or
exchange offer expires pursuant to Section 15.04(e) (the "ADJUSTMENT
DETERMINATION DATE"), the Company may elect to defer until the occurrence of the
Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Note
converted after such Adjustment Determination Date and before the occurrence of
such Adjustment Event, the additional cash and, if applicable, Ordinary Shares
or other securities issuable upon such conversion by reason of the adjustment
required by such Adjustment Event over and above the amounts deliverable upon
such conversion before giving effect to such adjustment and (y) paying to such
holder any amount in cash in lieu of any fraction pursuant to Section 15.04. For
purposes of this Section 15.04(l), the term "ADJUSTMENT EVENT" shall mean the
date a sale or exchange of Ordinary Shares pursuant to such tender or exchange
offer is consummated and becomes irrevocable.
(m) For purposes of this Section 15.04, the number of Ordinary Shares at
any time outstanding, means ordinary shares that are outstanding for purposes of
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Cayman Islands law and, shall include neither Ordinary Shares held in the
treasury of the Company nor the Ordinary Shares issued pursuant to the Share
Issuance and Repurchase Agreement, but shall include Ordinary Shares issuable in
respect of scrip certificates issued in lieu of fractions of Ordinary Shares.
SECTION 15.05. Ordinary Shares to Be Fully Paid. The Company shall provide,
free from preemptive rights, out of its authorized but unissued Ordinary Shares
or Ordinary Shares held in treasury, sufficient Ordinary Shares to provide for
conversion of the Notes from time to time as such Notes are presented for
conversion.
SECTION 15.06. Conversion into ADSs. The Company agrees to deposit with the
ADS Custodian a sufficient number of Ordinary Shares to be represented by the
ADSs a converting holder is entitled to receive upon conversion. Such Ordinary
Shares will be registered in the name of the ADS Depositary or its nominee and
deposited in accordance with the terms of the applicable Deposit Agreement.
Upon delivery to and deposit with the ADS Custodian for the ADS Depositary
of the number of Ordinary Shares to be represented by the ADSs issuable upon
conversion, and receipt by the ADS Depositary of the applicable issuance fees to
be paid by the Company and applicable written acknowledgments, certifications
and agreements required by the Deposit Agreement, the Company shall, pursuant to
the terms of the Deposit Agreement, use its best effort to cause the ADS
Depositary to deliver the ADSs to or to the order of the converting Noteholder.
The Company agrees to take all such action and obtain all such approvals,
including, without limitation, the specific registration with the relevant
authority in the Cayman Islands and the PRC, with respect to the conversion of
the Notes into Ordinary Shares and the issuance of ADSs representing such
Ordinary Shares upon deposit in the ADS facility.
If the Company's ADS facility maintained with the ADS Depositary is
terminated for any reason, the Notes will become convertible into Ordinary
Shares, if any in the same manner set forth in Section 15.02. In such case, all
references in this Indenture and the Notes to the ADSs will be deemed to refer
to the Ordinary Shares, all references to the Last Reported Sale Price of the
ADSs will be deemed to refer to the Last Reported Sale Price of the Ordinary
Shares, and other appropriate adjustments, including adjustments to the
applicable Conversion Rate, will be made to reflect such change. In making such
adjustments, where currency translations between U.S. Dollars and any other
currency are required, the exchange rate in effect on the date of determination
will apply.
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SECTION 15.07. Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur, namely (i) any reclassification or
change of the outstanding Ordinary Shares (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 split, subdivision or combination), (ii) any consolidation, merger
or combination of the Company with another person, or (iii) any sale or
conveyance of all or substantially all of the property and assets of the Company
to any other person, in either case as a result of which holders of Ordinary
Shares (including Ordinary Shares represented by ADSs) shall be entitled to
receive cash, securities or other property or assets with respect to or in
exchange for such Ordinary Shares (including Ordinary Shares represented by
ADSs) (any such event a "MERGER EVENT"), then:
(a) the Company or the successor or purchasing person, as the case may
be, shall execute with the Trustee a supplemental indenture (which shall
comply with the Trust Indenture Act as in force at the date of execution of
such supplemental indenture if such supplemental indenture is then required
to so comply) permitted under Section 11.01(a) providing for the conversion
and settlement of the Notes as set forth in this Indenture. 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 and the Trustee may conclusively rely on the determination by
the Company of the equivalency of such adjustments. If, in the case of any
Merger Event, the Reference Property (as defined below) 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, consolidation, merger, 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 required by the Board of Directors and practicable the provisions
providing for the repurchase rights set forth in Article 16 herein.
In the event the Company shall execute a supplemental indenture pursuant to
this Section 15.06, the Company shall promptly file with the Trustee an
Officers' Certificate briefly stating the reasons therefor, the kind or amount
of cash, securities or property or asset that will constitute the Reference
Property (as defined below) after any such Merger Event, any adjustment to be
made with respect thereto and that all conditions precedent have been complied
with, and shall promptly mail notice thereof to all Noteholders.
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(b) Notwithstanding the provisions of Section 15.02(a) and Section
15.02(b), and subject to the provisions of Section 15.01, at the effective
time of such Merger Event, the right to convert each US$1,000 principal
amount of Notes will be changed to a right to convert such Note by
reference to the kind and amount of cash, securities or other property or
assets that a holder of a number of Ordinary Shares (including Ordinary
Shares represented by ADSs) equal to the Conversion Rate immediately prior
to such transaction would have owned or been entitled to receive (the
"REFERENCE PROPERTY") such that from and after the effective time of such
transaction, a Noteholder will be entitled thereafter to convert its Notes
into the same type (and in the same proportion) of Reference Property,
based on the number of ADSs that would have been deliverable upon
conversion had such Merger Event not occurred. For purposes of determining
the constitution of Reference Property, the type and amount of
consideration that a holder of Ordinary Shares (including Ordinary Shares
represented by ADSs) would have been entitled to in the case of
reclassifications, consolidations, mergers, sales or conveyance of assets
or other transactions that cause the Ordinary Shares (including Ordinary
Shares represented by ADSs) to be converted into the right to receive more
than a single type of consideration (determined based in part upon any form
of shareholder election) will be deemed to be the weighted average of the
types and amounts of consideration received by the holders of Ordinary
Shares (including Ordinary Shares represented by ADSs) that affirmatively
make such an election. The Company shall not become a party to any such
transaction unless its terms are consistent with the preceding. None of the
foregoing provisions shall affect the right of a holder of Notes to convert
its Notes in accordance with the provisions of Article 15 hereof prior to
the effective date.
(c) The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Noteholder, at his address
appearing on the Note register provided for in this Indenture, within
twenty (20) days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.
(d) The above provisions of this Section shall similarly apply to
successive Merger Events.
SECTION 15.08. Certain Covenants.
(a) Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Ordinary Shares
issuable upon conversion of the Notes, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in order that the
Company
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may validly and legally issue such Ordinary Shares at such adjusted Conversion
Price.
(b) The Company covenants that all Ordinary Shares issued upon conversion
of Notes will be fully paid and non-assessable by the Company and free from all
taxes, liens and changes with respect to the issue thereof.
(c) The Company covenants that it will use its best efforts to ensure that
it maintains a listing for quotation or all ADSs and Ordinary Shares, including
the ADSs and Ordinary Shares issued on conversion of the Notes, on the NASDAQ
Global Market or any other U.S. national securities exchange or automated
quotation system.
SECTION 15.09. Responsibility of Trustee. The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to
any Noteholder to determine the Conversion Rate or whether any facts exist which
may require any adjustment of the Conversion Rate, or with respect to the nature
or extent or calculation of any such adjustment when made, or with respect to
the method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. The Trustee and any other Conversion Agent shall
not be accountable with respect to the validity or value (or the kind or amount)
of any Ordinary Shares, or of any securities or property, which may at any time
be issued or delivered upon the conversion of any Note; and the Trustee and any
other Conversion Agent make no representations with respect thereto. Neither the
Trustee nor any Conversion Agent shall be responsible for any failure of the
Company to issue, transfer or deliver any Ordinary Shares or stock certificates
or other securities or property or cash upon the surrender of any Note for the
purpose of conversion or to comply with any of the duties, responsibilities or
covenants of the Company contained in this Article.
Without limiting the generality of the foregoing, neither the Trustee nor
any Conversion Agent shall be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture entered
into pursuant to Section 15.06 relating either to the kind or amount of shares
of stock or securities or property (including cash) receivable by Noteholders
upon the conversion of their Notes after any event referred to in such Section
15.06 or to any adjustment to be made with respect thereto, but, subject to the
provisions of Section 8.01, may accept as conclusive evidence of the correctness
of any such provisions, and shall be protected in relying upon, the Officers'
Certificate (which the Company shall be obligated to file with the Trustee prior
to the execution of any such supplemental indenture) with respect thereto.
SECTION 15.10. Notice to Holders Prior to Certain Actions.
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In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Ordinary Shares that would require an adjustment in the Conversion
Rate pursuant to Section 15.04; or
(b) the Company shall authorize the granting to all or substantially
all of the holders of its Ordinary Shares of rights or warrants to
subscribe for or purchase any share of any class or any other rights or
warrants that would require an adjustment in the Conversion Rate pursuant
to Section 15.04; or
(c) of any reclassification of the Ordinary Shares of the Company
(other than a subdivision or combination of its outstanding Ordinary
Shares, or a change in par value, or from par value to no par value, or
from no par value to par value), or of any consolidation or merger to which
the Company is a party and for which approval of any shareholders of the
Company is required, or of the sale or transfer of all or substantially all
of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
Noteholder at his address appearing on the Note register, provided for in
Section 2.06 of this Indenture, as promptly as possible but in any event at
least twenty days prior to the applicable date specified in clause (x) or (y)
below, as the case may be, a notice stating (x) the date on which a record is to
be taken for the purpose of such dividend, distribution or rights or warrants,
or, if a record is not to be taken, the date as of which the holders of Ordinary
Shares of record to be entitled to such dividend, distribution or rights are to
be determined, or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, dissolution, liquidation or winding-up is expected to
become effective or occur, and the date as of which it is expected that holders
of Ordinary Shares of record shall be entitled to exchange their Ordinary Shares
for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.
Failure to give such notice, or any defect therein, shall not affect the
legality or validity of such dividend, distribution, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.
SECTION 15.11. Ordinary Share Rights Plans. To the extent that the Company
has a Ordinary Share rights plan, upon conversion of the Notes, the holders
shall receive, in addition to any ADSs, the associated rights issued under
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the Ordinary Share rights plan unless, prior to conversion, the rights have
separated from the Ordinary Shares represented by the ADSs, in which case the
Conversion Rate will be adjusted at the time of separation as if the Company
distributed to all holders of Ordinary Shares, shares of the Company's Capital
Stock, evidences of indebtedness, assets, property, rights or warrants as
described under Section 15.02(c), subject to readjustment in the event of the
expiration, termination or redemption of such rights. If, and only if, the
holders receive rights under such shareholder rights plans as described in the
preceding sentence upon conversion of their Notes, then no other adjustment
pursuant to this Article 15 shall be made in connection with such Ordinary Share
rights plans.
ARTICLE 16
PURCHASE OF NOTES AT OPTION OF HOLDERS
SECTION 16.01. Purchase of Notes at Option of the Holder on Specified
Dates.
(a) At the option of the holder thereof, Notes shall be purchased by the
Company in accordance with the provisions of the Notes on January 15, 2015 (the
"PUT RIGHT PURCHASE DATE") at a purchase price per Note equal to 100% of the
aggregate principal amount of the Notes being purchased, together with any
accrued and unpaid interest up to, but excluding, such Put Right Purchase Date
(the "PUT RIGHT PURCHASE PRICE"). However, the Company will, on the Put Right
Purchase Date, pay the accrued and unpaid interest to, but excluding, such date
to the holder of record at the close of business on the immediately preceding
record date. The holder submitting a Note for purchase will not receive this
accrued and unpaid interest unless that holder was also the holder of record at
the close of business on the immediately preceding record date.
Purchases of Notes by the Company pursuant to this Section 16.01 shall be
made, at the option of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the
Company) by the holder of a written notice of purchase (a "PUT RIGHT
PURCHASE NOTICE") in the form set forth on the reverse of the Note at any
time from the opening of business on the date that is 25 Business Days
prior to the applicable Put Right Purchase Date until the close of business
on the fifth Business Day prior to such Put Right Purchase Date stating:
(A) if certificated, the certificate numbers of the Notes to be
delivered for repurchase;
93
(B) the principal amount of the Notes to be repurchased, which
must be US$1,000 or an integral multiple thereof, and
(C) that the Notes are to be repurchased as of the applicable Put
Right Purchase Date pursuant to the terms and conditions specified in
the Notes and in this Indenture, and
(ii) delivery of such Note to the Paying Agent at any time after
delivery of the applicable Put Right Purchase Notice and prior to the close
of business on the Business Day immediately preceding the applicable Put
Right Purchase Date (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a condition to receipt by
the holder of the Put Right Purchase Price therefor, which shall be so paid
pursuant to this Section 16.01 only if the Note so delivered to the Paying
Agent shall conform in all respects to the description thereof in the
related Put Right Purchase Notice, as determined by the Company.
The Company shall purchase from the holder thereof, pursuant to this
Section 16.01, a portion of a Note if the principal amount of such portion is
US$1,000 or an integral multiple of US$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 16.01 shall be consummated by the delivery of the consideration to be
received by the holder promptly following the later of the Put Right Purchase
Date and the time of delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly
notify the Company of the receipt by it of any Put Right Purchase Notice or
written notice of withdrawal thereof in accordance with the provisions of
Section 16.01(d).
In connection with any purchase by the Company contemplated pursuant to the
provisions of this Section 16.01, the Company shall (a) comply with the
provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the
Exchange Act; (b) file a Schedule TO or any successor or similar schedule, if
required, under the Exchange Act; and (c) otherwise comply with all federal and
state securities laws in connection with any offer by the Company to purchase
the Notes.
Any Note that is to be repurchased only in part shall be surrendered to the
Trustee (with, if the Company or the Trustee so requires, due endorsement by, or
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a written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by the holder thereof or his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the holder of such Note without service charge, a
new Note or Notes, containing identical terms and conditions, each in an
authorized denomination in aggregate principal amount equal to and in exchange
for the unrepurchased portion of the principal of the Note so surrendered.
(b) In connection with any purchase of Notes pursuant to this Section
16.01, the Company shall give written notice of the Put Right Purchase Date to
the holders (the "COMPANY PUT RIGHT NOTICE").
The Company Put Right Notice shall be sent by first-class mail to the
Trustee and to each holder (and to each beneficial owner as required by
applicable law) not less than 25 Business Days prior to any Put Right Purchase
Date (the "COMPANY PUT RIGHT NOTICE DATE"). Each Company Put Right Notice shall
include a form of Put Right Purchase Notice to be completed by a Noteholder and
shall state:
(i) the Put Right Purchase Price and the Conversion Price;
(ii) the name and address of the Paying Agent and the Conversion
Agent;
(iii) that Notes as to which a Put Right Purchase Notice has been
given may be converted only in accordance with Article 15 hereof if the
applicable Put Right Purchase Notice has been withdrawn in accordance with
the terms of this Indenture;
(iv) that Notes must be surrendered to the Paying Agent to collect
payment;
(v) that the Put Right Purchase Price for any Note as to which a Put
Right Purchase Notice has been given and not withdrawn will be paid
promptly following the later of the Put Right Purchase Date and the time of
surrender of such Note as described in subclause (iv) above;
(vi) the procedures the holder must follow to exercise rights under
this Section and a brief description of those rights;
(vii) briefly, the conversion rights of the Notes;
(viii) the procedures for withdrawing a Put Right Purchase Notice
(including pursuant to the terms of Section 16.01(d));
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(ix) that, unless the Company defaults in making payment on Notes for
which a Put Right Purchase Notice has been submitted, interest on the Notes
in respect of which a Put Right Purchase Notice has been delivered and not
withdrawn will cease to accrue on the Put Right Purchase Date; and
(x) the CUSIP number of the Notes.
If any of the Notes are to be redeemed in the form of a Global Note, the
Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to redemptions.
At the Company's written request, the Trustee shall give such Company Put
Right Notice in the Company's name and at the Company's expense; provided,
however, that, in all cases, the text of such Company Put Right Notice shall be
prepared by the Company.
(c) Upon receipt by the Trustee (or other Paying Agent appointed by the
Company) of the Put Right Purchase Notice specified in Section 16.01(a), the
holder of the Note in respect of which such Put Right Purchase Notice was given
shall (unless such Put Right Purchase Notice is withdrawn as specified in
Section 16.01(d)) thereafter be entitled to receive solely the Put Right
Purchase Price with respect to such Note. Such Put Right Purchase Price shall be
paid to such holder, subject to receipt of funds by the Paying Agent, promptly
following the later of (x) the Put Right Purchase Date with respect to such Note
(provided the conditions in Section 16.01(a) 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 16.01(a). Notes in respect of which a Put Right
Purchase Notice has been given by the holder thereof may not be converted
pursuant to Article 15 hereof on or after the date of the delivery of such Put
Right Purchase Notice, unless such Put Right Purchase Notice has first been
validly withdrawn as specified in Section 16.01(d).
(d) A Put Right Purchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the Put Right Purchase Notice at any time prior to the close of business on
the Business Day prior to the Put Right Purchase Date specifying:
(i) if certificated Notes have been issued, the certificate numbers of
the withdrawn Notes,
(ii) the principal amount of the Notes with respect to which such
notice of withdrawal is being submitted, and
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(iii) the principal amount, if any, of such Notes that remains subject
to the original Put Right Purchase Notice, which portion must be in
principal amounts of US$1,000 or an integral multiple of US$1,000;
provided, however, that if the Notes are not in certificated form, the notice
must comply with appropriate procedures of the Depositary.
A written notice of withdrawal of a Put Right Purchase Notice shall be in
the form set forth in the preceding paragraph.
Upon receipt of a written notice of withdrawal, the Paying Agent shall
promptly return to the holders thereof any Notes in respect of which a Put Right
Purchase Notice has been withdrawn in accordance with the provisions of Section
16.01(e).
(e) There shall be no purchase of any Notes pursuant to this Section 16.01
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 Put Right Purchase Notice) and is
continuing an Event of Default (other than a default in the payment of the Put
Right Purchase Price with respect to such Notes). The Paying Agent will promptly
return to the respective holders thereof any Notes held by it during the
continuance of an Event of Default (other than a default in the payment of the
Put Right Purchase Price with respect to such Notes), in which case, upon such
return, the Put Right Purchase Notice with respect thereto shall be deemed to
have been withdrawn.
(f) Prior to 11:00 a.m. (local time in The City of New York) on the
Business Day following the Put Right Purchase Date, the Company shall deposit
with the Trustee (or other Paying Agent appointed by the Company or if the
Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 5.05) an amount (in immediately available funds if
deposited on such Business Day) sufficient to pay the aggregate Put Right
Purchase Price of all the Notes or portions thereof which are to be purchased as
of the Put Right Purchase Date. The manner in which the deposit required by this
Section 16.01(f) is made by the Company shall be at the option of the Company;
provided that such deposit shall be made in a manner such that the Trustee or a
Paying Agent shall have immediately available funds on the Business Day
following the Put Right Purchase Date.
If the Trustee (or other Paying Agent appointed by the Company) holds, in
accordance with the terms hereof, money sufficient to pay the Put Right Purchase
Price of any Note on the Business Day after the Put Right Purchase Date, then on
and after the Put Right Purchase Date, (i) such Note will cease to be
outstanding, (ii) interest will cease to accrue (whether or not book-entry
transfer of the Notes is
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made or whether or not the Notes are delivered to the Transfer or Paying Agent)
and (iii) all the rights of the holder in respect thereof shall terminate (other
than the right to receive the Put Right Purchase Price upon delivery of the
Notes).
To the extent that the aggregate amount of cash deposited by the Company
pursuant to this Section 16.01(f) exceeds the aggregate Put Right Purchase Price
of the Notes or portions thereof that the Company is obligated to purchase, then
promptly after the Put Right Purchase Date the Trustee or a Paying Agent, as the
case may be, shall return any such excess cash to the Company.
SECTION 16.02. Purchase at Option of Holders Upon a Fundamental Change.
(a) If a Fundamental Change occurs at any time, then each Noteholder shall
have the right, at such holder's option, to require the Company to purchase all
of such holder's Notes or any portion thereof that is a multiple of US$1,000
principal amount, for cash on the date (the "FUNDAMENTAL CHANGE PURCHASE DATE")
specified by the Company that is not less than twenty (20) Business Days and not
more than thirty-five (35) Business Days after the date of the Fundamental
Change Company Notice (as defined below) at a purchase price equal to 100% of
the principal amount thereof, together with accrued and unpaid interest thereon
to, but excluding, the Fundamental Change Purchase Date (the "FUNDAMENTAL CHANGE
PURCHASE PRICE"). However, if the Fundamental Change Purchase Date occurs after
a record date and on or prior to the corresponding Interest Payment Date, the
Company will pay the full amount of accrued and unpaid interest due on such
Interest Payment Date to the record holder on the record date corresponding to
such Interest Payment Date, and the Fundamental Change Purchase Price payable to
the holder who presents the note for purchase will be 100% of the principal
amount of such note and will not include any accrued and unpaid interest.
Repurchases of Notes under this Section 16.02 shall be made, at the option
of the holder thereof, upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the
Company) by a holder of a duly completed notice (the "FUNDAMENTAL CHANGE
PURCHASE NOTICE") in the form set forth on the reverse of the Note by the
close of business on or before the fifth Business Day prior to the
Fundamental Change Purchase Date; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or
other Paying Agent appointed by the Company) at any time after delivery of
the Fundamental Change Purchase Notice (together with all necessary
endorsements) at the Corporate Trust Office of the Trustee (or
98
other Paying Agent appointed by the Company) in the Borough of Manhattan,
such delivery being a condition to receipt by the holder of the Fundamental
Change Purchase Price therefor; provided that such Fundamental Change
Purchase Price shall be so paid pursuant to this Section 16.02 only if the
Note so delivered to the Trustee (or other Paying Agent appointed by the
Company) shall conform in all respects to the description thereof in the
related Fundamental Change Purchase Notice.
The Fundamental Change Purchase Notice shall state:
(A) if certificated, the certificate numbers of Notes to be
delivered for purchase;
(B) the principal amount of Notes to be purchased, which must be
US$1,000 or an integral multiple thereof; and
(C) that the Notes are to be purchased by the Company pursuant to
the applicable provisions of the Notes and this Indenture.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 16.02 shall be consummated by the delivery of the consideration to be
received by the holder promptly following the later of the Fundamental Change
Purchase Date and the time of delivery of the Note.
The Trustee (or other Paying Agent appointed by the Company) shall promptly
notify the Company of the receipt by it of any Fundamental Change Purchase
Notice or written notice of withdrawal thereof in accordance with the provisions
of Section 16.02(c).
In connection with any purchase by the Company contemplated pursuant to the
provisions of this Section 16.02, the Company shall (a) comply with the
provisions of Rule 13e-4, Rule 14e-1 and any other tender offer rules under the
Exchange Act; (b) file a Schedule TO or any successor or similar schedule, if
required, under the Exchange Act; and (c) otherwise comply with all federal and
state securities laws in connection with any offer by the Company to purchase
the Notes.
Any Note that is to be purchased only in part shall be surrendered to the
Trustee (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 his attorney duly authorized in
writing), and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the holder of such Note without service charge, a
99
new Note or Notes, containing identical terms and conditions, each in an
authorized denomination in aggregate principal amount equal to and in exchange
for the unpurchased portion of the principal of the Note so surrendered.
(b) On or before the twentieth Business Day after we know or reasonably
should know of the occurrence of a Fundamental Change, the Company shall provide
to all holders of record of the Notes and the Trustee and Paying Agent a notice
(the "FUNDAMENTAL CHANGE COMPANY NOTICE") of the occurrence of such Fundamental
Change and of the purchase right at the option of the holders arising as a
result thereof. Such mailing shall be by first class mail. Simultaneously with
providing such Fundamental Change Company Notice, the Company shall publish a
notice containing the information included therein once in a newspaper of
general circulation in The City of New York or publish such information on the
Company's website or through such other public medium as the Company may use at
such time.
Each Fundamental Change Company Notice shall specify:
(i) the events causing the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the Fundamental Change Purchase Date and the last date on which
a holder may exercise the purchase right;
(iv) the Fundamental Change Purchase Price;
(v) the name and address of the Paying Agent and the Conversion Agent;
(vi) the applicable Conversion Rate and any adjustments to the
applicable Conversion Rate (including the number of Additional ADSs, if
any);
(vii) that the Notes with respect to which a Fundamental Change
Purchase Notice has been delivered by a holder may be converted only if the
holder withdraws the Fundamental Change Purchase Notice in accordance with
the terms of this Indenture;
(viii) that the holder must exercise the purchase right on or prior to
the close of business on the fifth Business Day prior to the Fundamental
Change Purchase Date (the "FUNDAMENTAL CHANGE EXPIRATION TIME");
100
(ix) that the holder shall have the right to withdraw any Notes
surrendered prior to the close of business on the Business Day prior to the
Fundamental Change Expiration Time; and
(x) the procedures that holders must follow to require the Company to
purchase their Notes.
No failure of the Company to give the foregoing notices and no defect
therein shall limit the Noteholders' purchase rights or affect the validity of
the proceedings for the purchase of the Notes pursuant to this Section 16.02.
(c) A Fundamental Change Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the Paying Agent in accordance with
the Fundamental Change Company Notice at any time prior to the close of business
on the Business Day prior to the Fundamental Change Purchase Date, specifying:
(i) if certificated Notes have been issued, the certificate numbers of
the withdrawn Notes,
(ii) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note that remains subject
to the original Fundamental Change Purchase Notice, which portion must be
in principal amounts of US$1,000 or an integral multiple of US$1,000;
provided, however, that if the Notes are not in certificated form, the notice
must comply with appropriate procedures of the Depositary.
(d) On or prior to 11:00 a.m. (local time in The City of New York) on the
second Business Day following the Fundamental Change Purchase Date, the Company
will deposit with the Trustee (or other Paying Agent appointed by the Company or
if the Company is acting as its own Paying Agent, set aside, segregate and hold
in trust as provided in Section 5.05) an amount of cash sufficient to purchase
on the Fundamental Change Purchase Date all of the Notes to be purchased on such
date at the Fundamental Change Purchase Price. Subject to receipt of funds
and/or Notes by the Trustee (or other Paying Agent appointed by the Company),
payment for Notes surrendered for purchase (and not withdrawn) prior to the
Fundamental Change Expiration Time will be made promptly after the later of (x)
the Fundamental Change Purchase Date with respect to such Note (provided the
holder has satisfied the conditions to the payment of the Fundamental Change
Purchase Price in Section 16.02), and (y) the
101
time of book-entry transfer or the delivery of such Note to the Trustee (or
other Paying Agent appointed by the Company) by the holder thereof in the manner
required by Section 16.02 by mailing checks for the amount payable to the
holders of such Notes entitled thereto as they shall appear in the Note
register, provided, however, that payments to the Depositary shall be made by
wire transfer of immediately available funds to the account of the Depositary or
its nominee. The Trustee shall, promptly after such payment and upon written
demand by the Company, return to the Company any funds in excess of the
Fundamental Change Purchase Price.
(e) If the Trustee (or other Paying Agent appointed by the Company) holds
money or securities sufficient to pay the Fundamental Change Purchase Price of
any Note on the Business Day following the Fundamental Change Purchase Date,
then on and after the Fundamental Change Purchase Date (i) such Notes will cease
to be outstanding, (ii) interest (including Additional Interest) will cease to
accrue on such Notes (whether or not book-entry transfer of the Notes has been
made or the Notes have been delivered to the Trustee or Paying Agent), and (iii)
all other rights of the holders of such Notes will terminate (other than the
right to receive the Fundamental Change Purchase Price upon delivery of the
Notes).
(f) There shall be no purchase of any Notes pursuant to this Section 16.02
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 Fundamental Change Purchase Notice)
and is continuing an Event of Default (other than a default in the payment of
the Fundamental Change Purchase Price with respect to such Notes). The Paying
Agent will promptly return to the respective holders thereof any Notes held by
it during the continuance of an Event of Default (other than a default in the
payment of the Fundamental Change Purchase Price with respect to such Notes), in
which case, upon such return, the Fundamental Change Purchase Notice with
respect thereto shall be deemed to have been withdrawn.
ARTICLE 17
MISCELLANEOUS PROVISIONS
SECTION 17.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements of the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
SECTION 17.02. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
102
officer of any corporation that shall at the time be the lawful sole successor
of the Company.
SECTION 17.03. Addresses for Notices, Etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Noteholders on the Company shall be deemed to have been
sufficiently given or made, for all purposes if given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee) to 666 Linyang Road, Qidong, Jiangsu Province 226200, People's Republic
of China. Any notice, direction, request or demand hereunder to or upon the
Trustee and Principal Paying Agent shall be deemed to have been sufficiently
given or made, for all purposes, if given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed to
the Corporate Trust Office, with a copy to:
The Bank of New York
Xxxxx 00
Xxxxx Xxxxxxx Xxxxx
0 Xxxxx'x Xxxx Xxxx
Xxxx Xxxx
Xxxxxxxxx: Global Corporate Trust
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to him
by first class mail, postage prepaid, at his address as it appears on the Note
register and shall be sufficiently given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in
it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 17.04. Governing Law. THIS INDENTURE AND EACH NOTE SHALL BE DEEMED
TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL
PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS ENTERED INTO AND TO BE PERFORMED THEREIN.
103
SECTION 17.05. Submission to Jurisdiction; Waiver of Immunity. Each of the
parties hereto hereby irrevocably submits to the non-exclusive jurisdiction of
any New York state or U.S. federal court sitting in the Borough of Manhattan in
The City of New York with respect to actions brought against it as a defendant
in respect of any suit, action or proceeding or arbitral award arising out of or
relating to this Indenture or the Notes or any transaction contemplated hereby
or thereby (a "PROCEEDING"), and irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each of the parties hereto irrevocably waives, to the fullest
extent it may do so under applicable law, trial by jury and any objection which
it may now or hereafter have to the laying of the venue of any such Proceeding
brought in any such court and any claim that any such Proceeding brought in any
such court has been brought in an inconvenient forum. The Company irrevocably
appoints CT Corporation System (the "PROCESS AGENT"), with an office at 000
Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its authorized agent to receive on
behalf of it and its property service of copies of the summons and complaint and
any other process which may be served in any Proceeding. If for any reason such
Person shall cease to be such agent for service of process, the Company shall
forthwith appoint a new agent of recognized standing for service of process in
the State of New York and deliver to the Trustee a copy of the new agent's
acceptance of that appointment within 30 days. Nothing herein shall affect the
right of the Trustee, any agent or any holder to serve process in any other
manner permitted by law or to commence legal proceedings or otherwise proceed
against the Company in any other court of competent jurisdiction.
The Company hereby irrevocably appoints the Process Agent as its agent to
receive, on behalf of itself and its property, service of copies of the summons
and complaint and any other process which may be served in any such suit, action
or proceeding brought in such New York state or U.S. federal court sitting in
the Borough of Manhattan in The City of New York. Such service shall be made by
delivering by hand a copy of such process to the Company in care of the Process
Agent at the address specified above. The Company hereby irrevocably authorizes
and directs the Process Agent to accept such service on its behalf. Failure of
the Process Agent to give notice to the Company, or failure of the Company to
receive notice of such service of process shall not affect in any way the
validity of such service on the Process Agent or the Company. As an alternative
method of service, the Company also irrevocably consents to the service of any
and all process in any such Proceeding by the delivery by hand of copies of such
process to the Company, at its address specified in or at any other address
previously furnished in writing by the Company to the Trustee. The Company
covenants and agrees that it shall take any and all reasonable action, including
the execution and filing of any and all documents, that may be necessary to
continue the designation of the Process Agent above in full force and
104
effect during the term of the Notes, and to cause the Process Agent to continue
to act as such.
Nothing in this shall affect the right of any party, including the Trustee,
any Agent or any holder, to serve legal process in any other manner permitted by
law or affect the right of any party to bring any action or proceeding against
any other party or its property in the courts of other competent jurisdictions.
The Company irrevocably agrees that, in any proceedings anywhere (whether
for an injunction, specific performance or otherwise), no immunity (to the
extent that it may at any time exist, whether on the grounds of sovereignty or
otherwise) from such proceedings, from attachment (whether in aid of execution,
before judgment or otherwise) of its assets or from execution of judgment shall
be claimed by it or on its behalf or with respect to its assets, except to the
extent required by applicable law, any such immunity being irrevocably waived,
to the fullest extent permitted by applicable law. The Company irrevocably
agrees that, where permitted by applicable law, it and its assets are, and shall
be, subject to such proceedings, attachment or execution in respect of its
obligations under this Indenture or the Notes.
SECTION 17.06. Evidence of Compliance with Conditions Precedent;
Certificates and Opinions of Counsel to Trustee. Upon any application or demand
by the Company to the Trustee to take any action under any of the provisions of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with, and an
Opinion of Counsel stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
Each certificate or opinion provided for by or on behalf of the Company in
this Indenture and delivered to the Trustee with respect to compliance with a
condition or covenant provided for in this Indenture shall include (1) a
statement that the person making such certificate or opinion has read such
covenant or condition; (2) a brief statement as to the nature and scope of the
examination or investigation upon which the statement or opinion contained in
such certificate or opinion is based; (3) a statement that, in the opinion of
such person, he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in
the opinion of such person, such condition or covenant has been complied with.
SECTION 17.07. Legal Holidays. In any case where any Interest Payment
Date, Redemption Date, Fundamental Change Purchase Date, Put Right Purchase
Date, Conversion Date or Maturity Date will not be a Business Day,
105
then any action to be taken on such date need not be taken on such date, but may
be taken on the next succeeding Business Day with the same force and effect as
if taken on such date, and no interest shall accrue for the period from and
after such date to the next succeeding Business Day.
SECTION 17.08. No Security Interest Created. Nothing in this Indenture or
in the Notes, expressed or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect, in any jurisdiction.
SECTION 17.09. Benefits of Indenture. Nothing in this Indenture or in the
Notes, expressed or implied, shall give to any person, other than the parties
hereto, any Paying Agent, any authenticating agent, any Note Registrar and their
successors hereunder, the Noteholders, any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 17.10. Table of Contents, Headings, Etc. The table of contents and
the titles and headings of the articles and sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
SECTION 17.11. Authenticating Agent. The Trustee may appoint an
authenticating agent which shall be authorized to act on its behalf and subject
to its direction in the authentication and delivery of Notes in connection with
the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Section 2.05, Section 2.06, Section 2.08 and Section 2.09, as
fully to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the authentication and
delivery of Notes by the authenticating agent shall be deemed to be
authentication and delivery of such Notes "by the Trustee" and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent
shall be deemed to satisfy any requirement hereunder or in the Notes for the
Trustee's certificate of authentication. Such authenticating agent shall at all
times be a person eligible to serve as trustee hereunder pursuant to Section
8.09.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section, without the execution or filing of any paper or any further act on the
part of the parties hereto or the authenticating agent or such successor
corporation.
106
Any authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any authenticating agent by giving written notice of
termination to such authenticating agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee
shall promptly appoint a successor authenticating agent (which may be the
Trustee), shall give written notice of such appointment to the Company and shall
mail notice of such appointment to all Noteholders as the names and addresses of
such holders appear on the Note register.
The Company agrees to pay to the authenticating agent from time to time
compensation for its services although the Company may terminate the
authenticating agent, if it determines such agent's fees to be unreasonable.
The provisions of Section 8.02, Section 8.03, Section 8.04, Section 9.03
and this Section 17.11 shall be applicable to any authenticating agent.
SECTION 17.12. Currency Indemnity. U.S. Dollars are the sole currency of
account and payment for all sums payable by the Company under or in connection
with the Notes, including damages. Any amount received or recovered in a
currency other than U.S. Dollars (whether as a result of, or of the enforcement
of, a judgment or order of a court of any jurisdiction, in the winding-up or
dissolution of the Company or otherwise) by any holder of a Note in respect of
any sum expressed to be due to it from the Company shall only constitute a
discharge to the Company to the extent of the U.S. Dollar amount which the
recipient is able to purchase with the amount so received or recovered in that
other currency on the date of that receipt or recovery (or, if it is not
practicable to make that purchase on that date, on the first date on which it is
practicable to do so). If that U.S. Dollar amount is less than the U.S. Dollar
amount expressed to be due to the recipient under any Note, the Company shall
indemnify such holder against any loss sustained by it as a result, and if the
amount of U.S. Dollars so purchased is greater than the sum originally due to
such holder, such holder shall, by accepting a Note, be deemed to have agreed to
repay such excess. In any event, the Company shall indemnify the recipient
against the cost of making any such purchase.
For the purposes of this Section 17.12, it shall be sufficient for the
holder of a Note to certify in a satisfactory manner (indicating the sources of
information used) that it would have suffered a loss had an actual purchase of
U.S. Dollars been made with the amount so received in that other currency on the
date of receipt or recovery (or, if a purchase of U.S. Dollars on such date had
not been practicable, on the first date on which it would have been practicable,
it being required that the need for a change of date be certified in the manner
mentioned
107
above). These indemnities constitute a separate and independent obligation from
the other obligations of the Company, shall give rise to a separate and
independent cause of action, shall apply irrespective of any indulgence granted
by any holder of a Note and shall continue in full force and effect despite any
other judgment, order, claim or proof for a liquidated amount in respect of any
sum due under any Note.
SECTION 17.13. Execution in Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
SECTION 17.14. Qualification of Indenture. The Company shall qualify this
Indenture under the Trust Indenture Act in accordance with the terms and
conditions of the Registration Rights Agreement and shall pay all reasonable
costs and expenses (including attorneys' fees and expenses for the Company, the
Trustee and the holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the Notes
and the printing of this Indenture and the Notes.
SECTION 17.15. Calculations. Except as otherwise provided herein, the
Company will be responsible for making all calculations called for under this
Indenture and the Notes. The Company will make all such calculations in good
faith and, absent manifest error, its calculations will be final and binding on
holders. The Company upon request will provide a schedule of its calculations to
each of the Trustee and the Conversion Agent, and each of the Trustee and
Conversion Agent is entitled to rely conclusively upon the accuracy of the
Company's calculations without independent verification. The Trustee will
deliver a copy of such schedule to any holder upon the written request of such
holder.
108
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the date first written above.
SOLORFUN POWER HOLDINGS CO., LTD.
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Principal Paying Agent
By:
------------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Conversion Agent
By:
------------------------------------
Name:
Title:
SCHEDULE A
ADS Price (US$)
----------------------------------------------------------------------------------------------------------------
15.00 20.00 25.00 30.00 35.00 40.00 45.00 50.00 55.00 65.00 75.00 100.00 125.00 150.00
------- ------- ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------ ------
Effective Date
January 29, 2008 14.3791 10.9870 7.6336 5.6470 4.3618 3.4753 2.8355 2.3544 1.9836 1.4550 1.1031 0.6114 0.3832 0.2739
January 15, 2009 14.3791 10.5135 7.1823 5.2496 4.0210 3.1864 2.5905 2.1463 1.8062 1.3245 1.0057 0.5624 0.3581 0.2614
January 15, 2010 14.3791 9.9154 6.6188 4.7593 3.6067 2.8385 2.2982 1.8994 1.5972 1.1725 0.8932 0.5068 0.3301 0.2481
January 15, 2011 14.3791 9.2662 5.9852 4.2068 3.1399 2.4504 1.9752 1.6300 1.3715 1.0118 0.7766 0.4515 0.3033 0.2358
January 15, 2012 14.3791 8.5262 5.2392 3.5552 2.5981 2.0044 1.6107 1.3304 1.1241 0.8401 0.6548 0.3966 0.2782 0.2252
January 15, 2013 14.3791 7.5763 4.2751 2.7327 1.9317 1.4735 1.1861 0.9884 0.8464 0.6521 0.5239 0.3401 0.2538 0.2159
January 15, 2014 14.3791 6.2044 2.9219 1.6469 1.1045 0.8448 0.7029 0.6075 0.5408 0.4465 0.3806 0.2797 0.2299 0.2086
January 15, 2015 14.3791 4.3171 0.2074 0.2074 0.2071 0.2062 0.2077 0.2075 0.2077 0.2056 0.2056 0.2056 0.2056 0.2056
January 15, 2016 14.3791 4.4243 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
January 15, 2017 14.3791 4.1502 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
January 15, 2018 14.3791 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
EXHIBIT A
[FORM OF FACE OF NOTE]
[Include only for Global Notes]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S
NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO
TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE
REFERRED TO IN THE TERMS OF THE NOTE ATTACHED HERETO.]
[Include only for Notes in certificated form]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
A-1
[Include only for Definitive Notes]
[THIS SECURITY WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST
IN A GLOBAL NOTE UNLESS THE HOLDER OF THIS SECURITY, SUBSEQUENT TO SUCH
EXCHANGE, WILL HOLD NO NOTES.]
[Include only for Notes that are Restricted Securities]
[THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER:
(1) REPRESENTS THAT IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A
"QUALIFIED INSTITUTIONAL BUYER" (WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO
EACH SUCH ACCOUNT, AND
(2) AGREES FOR THE BENEFIT OF THE COMPANY THAT IT WILL NOT OFFER, SELL,
PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN PRIOR
TO THE DATE THAT IS THE LATER OF (X) TWO YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR OF THIS SECURITY) OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT OR
ANY SUCCESSOR PROVISION THEREUNDER, AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAW, EXCEPT ONLY:
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, OR
(B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER
THE SECURITIES ACT, OR
(C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER
THE SECURITIES ACT.
A-2
(D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS IN OFFSHORE
TRANSACTIONS WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT; OR (E)
PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE
SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) or
(2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH MAY BE
OBTAINED FROM THE TRUSTEE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE
REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(E) ABOVE, THE COMPANY AND
THE TRUSTEE RESERVE THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS,
CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO
DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE
SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE
AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT.
THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF THE NOTE ARE
SUBJECT TO THE DEPOSIT AGREEMENT (AS SUPPLEMENTED) DATED DECEMBER 19, 2006
BETWEEN THE COMPANY AND THE BANK OF NEW YORK, AS DEPOSITARY. IN CERTAIN
CIRCUMSTANCES, THE AMERICAN DEPOSITARY SHARES ISSUABLE UPON CONVERSION OF THE
NOTE WILL BE ISSUED AND DELIVERED IN THE FORM OF RESTRICTED AMERICAN DEPOSITARY
SHARES AND WILL BE SUBJECT TO TRANSFER RESTRICTIONS AS AGREED TO BETWEEN THE
DEPOSITARY AND THE COMPANY;
IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY ENGAGE IN
ANY HEDGING TRANSACTIONS WITH REGARD TO THE NOTES, THE AMERICAN DEPOSITARY
SHARES ISSUABLE UPON CONVERSION OF THE NOTE OR THE ORDINARY SHARES REPRESENTED
BY THE AMERICAN DEPOSITARY SHARES EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.]
[Include only for ADSs that are Restricted Securities]
A-3
[THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY, EXCEPT (A) TO THE ISSUER; (B) UNDER A
REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT; (C) TO A PERSON THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER (AS DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES ACT) THAT IS
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER QUALIFIED
INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE
IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH RULE 144A (IF AVAILABLE); OR
(D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT; AND (2) IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY
FURNISH TO THE TRANSFER AGENT AND THE ISSUER SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS MAY BE REQUIRED 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.]
A-4
SOLARFUN POWER HOLDINGS CO., LTD.
3.5% Convertible Senior Notes due 2018
No.___________ US$___________
CUSIP No 83415U AA6
SOLARFUN POWER HOLDINGS CO., LTD., an exempted company incorporated with
limited liability under the laws of the Cayman Islands (herein called the
"Company," which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received hereby promises to pay to
CEDE & CO., or registered assigns, the principal sum of 172,500,000 U.S. Dollars
or such other principal amount as shall be set forth on the Schedule I hereto on
January 15, 2018.
This Note shall bear interest at the rate of 3.5% per year from January 29,
2008, or from the most recent date to which interest had been paid or provided.
Interest is payable semi-annually in arrears on each January 15 and July 15,
commencing July 15, 2008, to holders of record at the close of business on the
preceding January 1 and July 1, respectively. Interest payable on each Interest
Payment Date shall equal the amount of interest accrued from and including the
immediately preceding Interest Payment Date (or from and including January
29,2008 if no interest has been paid hereon) to but excluding such Interest
Payment Date.
The payment of the principal of, premium, if any, and accrued and unpaid
interest on the Notes will be exclusively in such coin or currency of the United
States as at the time of payment will be legal tender for the payment of public
and private debts. The Company shall, through the Principal Paying Agent, pay
the principal of the Notes at the office or agency designated by the Company in
the Borough of Manhattan, The City of New York. Each installment of accrued and
unpaid interest on the Notes due on any Interest Payment Date may be paid by
mailing checks for the amount payable to or upon the written order of the
Noteholders entitled thereto as they shall appear on the registry books of the
Company, provided that, with respect to any Noteholder with an aggregate
principal amount in excess of US$5,000,000, at the application of such holder in
writing to the Note Registrar not later than the relevant record date and
accrued and unpaid interest on such holder's Notes shall be paid by wire
transfer in immediately available funds to such holder's account in the United
States supplied by such holder from time to time to the Trustee and Paying Agent
(if different from Trustee); provided further that payments in respect of a
Global Note shall be paid by wire transfer in immediately available funds to the
accounts specified by the Depositary in accordance with such wire transfer
instructions and other procedures provided by the Depositary from time to time.
A-5
Reference is made to the further provisions of this Note set forth on the
reverse hereof, including, without limitation, provisions giving the holder of
this Note the right to convert this Note into ADSs or cash and ADS, if any, of
the Company on the terms and subject to the limitations referred to on the
reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set forth
at this place.
This Note shall be deemed to be a contract made under the laws of the State
of New York, and for all purposes shall be construed in accordance with the laws
of the State of New York applicable to contracts entered into and to be
performed therein.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
A-6
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
SOLARFUN POWER HOLDINGS CO., LTD.
By:
------------------------------------
Name:
Title:
A-7
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK, as Trustee,
certifies that this is one of the Notes
described in the within-named Indenture.
By:
------------------------------------
Name:
Title:
A-8
[FORM OF REVERSE OF NOTE]
SOLARFUN POWER HOLDINGS CO., LTD.
3.5% Convertible Senior Notes due 2018
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 3.5% Convertible Senior Notes due 2018 (herein called the
"Notes"), issued under and pursuant to an Indenture dated as of January 29, 2008
(herein called the "Indenture"), among the Company, The Bank of New York, as
Trustee (herein called the "Trustee") and as principal Paying Agent (herein
called the "Principal Paying Agent"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Principal Paying Agent, the Company and the holders of the Notes.
Additional Notes may be issued in an unlimited aggregate principal amount,
subject to certain conditions specified in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of, premium, if any, and interest on
all Notes may be declared, and upon said declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
Subject to the terms and conditions of the Indenture, the Notes may be
redeemed at the election of the Company, in whole or in part, at any time on or
after January 20, 2015 at a price equal to 100% of the principal amount of the
Notes being redeemed, plus accrued and unpaid interest up to, but excluding, the
Redemption Date. Any such redemption shall be upon at least 30 days and no more
than 60 days notice to holders of the Notes.
Subject to the terms and conditions of the Indenture, Additional Amounts
will be paid in connection with any payments in respect of the Notes so that the
net amount a holder receives after applicable withholding tax will equal the
amount that the holder would have received if no withholding tax had been
applicable in certain circumstances.
Subject to the terms and conditions of the Indenture, the Company will make
all payments and deliveries in respect of the Fundamental Change Purchase Price,
the Put Right Purchase Price and the principal amount on the Maturity Date, as
the case may be, to the holder who surrenders a Note to a Paying Agent to
collect such payments in respect of the Note.
The Indenture contains provisions permitting the Company and the Trustee in
certain circumstances, without the consent of the holders of the Notes,
A-9
and in other circumstances, with the consent of the holders of not less than a
majority in aggregate principal amount of the Notes at the time outstanding,
evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in any
manner the rights of the holders of the Notes; provided, however, that no such
supplemental indenture shall make any of the changes set forth in Section 11.02
of the Indenture, without the consent of each holder of an outstanding Note
affected thereby. It is also provided in the Indenture that, prior to any
declaration accelerating the maturity of the Notes, the holders of a majority in
aggregate principal amount of the Notes at the time outstanding may on behalf of
the holders of all of the Notes waive any past default or Event of Default under
the Indenture and its consequences except as provided in the Indenture. Any such
consent or waiver by the holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
accrued and unpaid interest on this Note at the place, at the respective times,
at the rate and in the lawful money herein prescribed.
The Notes are issuable in registered form without coupons in denominations
of US$1,000 principal amount and integral multiples thereof. At the office or
agency of the Company referred to on the face hereof, and in the manner and
subject to the limitations provided in the Indenture, without payment of any
service charge but with payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration or
exchange of Notes, Notes may be exchanged for a like aggregate principal amount
of Notes of other authorized denominations.
The Notes are not subject to redemption through the operation of any
sinking fund.
Upon the occurrence of a Fundamental Change, the holder has the right, at
such holder's option, to require the Company to repurchase all of such holder's
Notes or any portion thereof (in principal amounts of US$1,000 or integral
multiples thereof) on the Fundamental Change Purchase Date at a price equal to
100% of the principal amount of the Notes such holder elects to require the
Company to repurchase, together with accrued and unpaid interest, to but
excluding the Fundamental Change Purchase Date. The Company or, at the
A-10
written request of the Company, the Trustee shall mail to all holders of record
of the Notes a notice of the occurrence of a Fundamental Change and of the
repurchase right arising as a result thereof on or before the twentieth day
after the Company knows or reasonably should know of the occurrence of any
Fundamental Change.
On January 15, 2015, the holder has the right, at such holder's option, to
require the Company to repurchase all of such holder's Notes or any portion
thereof (in principal amounts of US$1,000 or integral multiples thereof) at a
price equal to 100% of the principal amount of the Notes such holder elects to
require the Company to repurchase, together with accrued and unpaid interest, to
but excluding the Put Right Purchase Date. Holders shall submit their Notes for
repurchase to the Paying Agent at any time from the opening of business on the
date that is 25 Business Days prior to the applicable Put Right Purchase Date
until the close of business on the fifth Business Day prior to the Put Right
Purchase Date.
Subject to the provisions of the Indenture, the holder hereof has the
right, at its option, prior to the close of business on the Business Day
immediately preceding the Maturity Date, to convert any Notes or portion thereof
which is US$1,000 or an integral multiple thereof, into cash and, if applicable,
ADSs, in each case at the Conversion Rate specified in the Indenture, as
adjusted from time to time as provided in the Indenture, upon surrender of this
Note, together with a Conversion Notice, a form of which is attached to the
Note, as provided in the Indenture and this Note, to the Company at the office
or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, or at the option of such holder, the Corporate
Trust Office, and, unless the ADSs issuable on conversion are to be issued in
the same name as this Note, duly endorsed by, or accompanied by instruments of
transfer in form satisfactory to the Company duly executed by, the holder or by
his duly authorized attorney. The initial Conversion Rate shall be 52.2876 ADS
for each US$1,000 principal amount of Notes. No fractional ADSs will be issued
upon any conversion, but an adjustment in cash will be paid to the holder, as
provided in the Indenture, in respect of any fraction of a ADS which would
otherwise be issuable upon the surrender of any Note or Notes for conversion. No
adjustment shall be made for dividends or any ADSs issued upon conversion of
such Note except as provided in the Indenture.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company in the Borough of Manhattan, The City of New
York, a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange thereof, subject
to the limitations provided in the Indenture, without charge except for any tax,
assessments or other governmental charge imposed in connection therewith.
A-11
The Company, the Trustee, any authenticating agent, any Paying Agent, any
Conversion Agent and any Note Registrar may deem and treat the registered holder
hereof as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon),
for the purpose of receiving payment hereof, or on account hereof, for the
conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor any other
Conversion Agent nor any Note Registrar shall be affected by any notice to the
contrary. All payments made to or upon the order of such registered holder
shall, to the extent of the sum or sums paid, satisfy and discharge liability
for monies payable on this Note.
No recourse for the payment of the principal of, or any premium, or accrued
and unpaid interest on, this Note, or for any claim based hereon or otherwise in
respect hereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in the Indenture or any indenture supplemental thereto
or in any Note, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent,
officer, director or subsidiary, as such, past, present or future, of the
Company or of any successor corporation, either directly or through the Company
or any successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or otherwise, all
such liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
Terms used in this Note and defined in the Indenture are used herein as
therein defined.
Customary abbreviations may be used in the name of a holder or an assignee,
such as TEN COM (=tenants in common), TENANT (=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).
A-12
[FORM OF CONVERSION NOTICE]
To: SOLARFUN POWER HOLDINGS CO., LTD.
c/o: THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, XX 00000
U.S.A.
Facsimile No.: (000) 000-0000 or (000) 000-0000
Attention: Global Corporate Trust
With a copy to:
THE BANK OF NEW YORK
00/X Xxxxx Xxxxxxx Xxxxx
0 Xxxxx'x Xxxx Xxxx
Xxxx Xxxx
Facsimile No.: (000) 0000-0000
Attention: Global Corporate Trust
The undersigned registered owner of this Note hereby exercises the option
to convert this Note, or the portion hereof (which is US$1,000 principal amount
or an integral multiple thereof) below designated, into cash and ADSs, if any,
in accordance with the terms of the Indenture referred to in this Note, and
directs that the ADSs issuable and deliverable upon such conversion, if any,
together with any check in payment of the cash in respect of the remaining
Conversion Obligation (as defined in the Indenture) and for fractional ADSs and
any Notes representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. If ADSs or any portion of this Note not converted are to be
issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto. Any amount required to be
paid to the undersigned on account of interest accompanies this Note.
Dated:
-------------
----------------------------------------
Signature(s)
-------------------------------------
Signature Guarantee
A-13
Signature(s) must be guaranteed by an
eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit unions)
with membership in an approved
signature guarantee medallion program
pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934, as
amended, if ADSs are to be issued, or
Notes to be delivered, other than to
and in the name of the registered
holder.
A-14
Fill in for registration of ADSs if
to be issued, and Notes if to be
delivered, other than to and in the
name of the registered holder:
-------------------------------------
(Name)
-------------------------------------
(Street Address)
-------------------------------------
(City, State and Zip Code)
Please print name and address
Principal amount to be converted
(if less than all): US$______,000
----------------------------------------
Social Security or Other Taxpayer
Identification Number
CUSIP number of Securities:
1. I/We hereby declare that any applicable condition to conversion of the
Securities, if any, has been complied with by me/us.
2. I/We hereby declare that all stamp, issue, registration or similar taxes
and duties payable on conversion, issue or delivery of ADSs of any other
property or cash have been paid.
A-15
[FORM OF PUT RIGHT PURCHASE NOTICE]
To: SOLARFUN POWER HOLDINGS CO., LTD.
c/o: THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, XX 00000
U.S.A.
Facsimile No.: (000) 000-0000 or (000) 000-0000
Attention: Global Corporate Trust
With a copy to:
THE BANK OF NEW YORK
00/X Xxxxx Xxxxxxx Xxxxx
0 Xxxxx'x Xxxx Xxxx
Xxxx Xxxx
Facsimile No.: (000) 0000-0000
Attention: Global Corporate Trust
The undersigned hereby requests and instructs the Company to repay the entire
principal amount of this Note, or a portion hereof (which is US$1,000 principal
amount or an integral multiple thereof) below designated, on [______], ____ in
accordance with the terms of the Indenture referred to in this Note at the Put
Right Purchase Price, to the registered holder hereof.
Dated:
------------
----------------------------------------
Signature(s)
----------------------------------------
Social Security or Other Taxpayer
Identification Number Principal amount
to be repaid (if less than all):
US$____,000 NOTICE: The above signatures
of the holder(s) hereof must correspond
with the name as written upon the face
of the Note in every particular without
alteration or enlargement or any change
whatever.
Note Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
A-16
[FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE]
To: SOLARFUN POWER HOLDINGS CO., LTD.
c/o: THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx, 0 Xxxx
Xxx Xxxx, XX 00000
U.S.A.
Facsimile No.: (000) 000-0000 or (000) 000-0000
Attention: Global Corporate Trust
With a copy to:
THE BANK OF NEW YORK
00/X Xxxxx Xxxxxxx Xxxxx
0 Xxxxx'x Xxxx Xxxx
Xxxx Xxxx
Facsimile No.: (000) 0000-0000
Attention: Global Corporate Trust
The undersigned registered owner of this Note hereby acknowledges receipt of a
notice from SOLARFUN POWER HOLDINGS CO., LTD. (the "Company") as to the
occurrence of a Fundamental Change with respect to the Company and requests and
instructs the Company to repay the entire principal amount of this Note, or the
portion thereof (which is US$1,000 principal amount or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture
referred to in this Note, to the registered holder hereof.
Dated:
-------------
----------------------------------------
Signature(s)
----------------------------------------
Social Security or Other Taxpayer
Identification Number Principal amount
to be repaid (if less than all):
US$____,000 NOTICE: The above signatures
of the holder(s) hereof must correspond
with the name as written upon the face
of the Note in every particular without
alteration or enlargement or any change
whatever.
Note Certificate Number (if applicable):
A-17
Principal amount to be repurchased (if less than all):
A-18
[FORM OF CERTIFICATE OF TRANSFER]
ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
_______________________________________________________
(Print or type assignee's name, address and zip code)
___________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint ___________ agent to transfer this Note on the
books of the Company. The agent may substitute another to act for him.
________________________________________________________________________________
Date: Your Signature:
--------------------- ------------------------
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed)
--------------------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program, pursuant to
Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
In connection with any transfer or exchange of any of the Notes evidenced by
this certificate occurring prior to the date that is two years after the later
of the date of original issuance of such Notes and the last date, if any, on
which such Notes were owned by the Company or any Affiliate of the Company, the
undersigned confirms that such Notes are being:
A-19
CHECK ONE BOX BELOW:
[ ] 1 acquired for the undersigned's own account, or an account with respect
to which the undersigned exercises sole investment discretion, without
transfer; or
[ ] 2 transferred to the Company; or
[ ] 3 transferred pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the "Securities Act"); or
[ ] 4 transferred pursuant to and in compliance with Rule 144A under the
Securities Act; or
[ ] 5 transferred pursuant to another available exemption from the
registration requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any Person other than the
registered holder thereof; provided, however, that if box (5) is checked, the
Trustee or the Company may require, prior to registering any such transfer of
the Notes, in their sole discretion, such legal opinions, certifications and
other information as the Trustee or the Company may reasonably request to
confirm that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act
of 1933, as amended, such as the exemption provided by Rule 144 under such Act.
----------------------------------------
Signature:
Signature Guarantee:
------------------------------------- ----------------------------------------
(Signature must be guaranteed) Signature:
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program, pursuant to
Rule 17Ad-15 under the Exchange Act.
TO BE COMPLETED BY PURCHASER IF (1) OR (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Note for its
own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the
A-20
meaning of Rule 144A under the Securities Act, and is aware that the sale to it
is being made in reliance on Rule 144A and acknowledges that it has received
such information regarding the Company as the undersigned has requested pursuant
to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
_________________________
Dated:
A-21
SCHEDULE I
SOLARFUN POWER HOLDINGS CO., LTD.
3.5% Convertible Senior Notes Due 2018
No. ________
NOTATION
EXPLAINING AUTHORIZED
PRINCIPAL SIGNATURE OF
PRINCIPAL AMOUNT TRUSTEE OR
DATE AMOUNT RECORDED CUSTODIAN
---- --------- ---------- ------------
