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Exhibit 4.1
EXECUTION COPY
AMKOR TECHNOLOGY, INC.
AND
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STATE STREET BANK AND TRUST COMPANY
AS TRUSTEE
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$250,000,000
5.75% Convertible Subordinated Notes due 2006*
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INDENTURE
Dated as of May 25, 2001
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* Plus an over-allotment option to purchase up to $50,000,000 principal amount
of 5.75% Convertible Subordinated Notes due 2006.
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THIS INDENTURE, dated as of May 25, 2001, is between Amkor
Technology, Inc., a Delaware corporation (the "Company"), and State Street Bank
and Trust Company, a trust company duly organized and existing under laws of the
Commonwealth of Massachusetts (the "Trustee"). The Company has duly authorized
the creation of its 5.75% Convertible Subordinated Notes due 2006 (the
"Convertible Subordinated Notes") and to provide therefor the Company and the
Trustee have duly authorized the execution and delivery of this Indenture. Each
party agrees as follows for the benefit of the other party and for the equal and
ratable benefit of the holders from time to time of the Convertible Subordinated
Notes:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.
"Acquiring Person" means any "person" (as defined in Section
13(d)(3) of the Exchange Act) who or which, together with all affiliates and
associates (each as defined in Rule 12b-2 under the Exchange Act), becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act and
as further defined below) of shares of Common Stock or other voting securities
of the Company having more than 50% of the total voting power of the Voting
Stock of the Company; provided, however, that an Acquiring Person shall not
include (i) the Company, (ii) any Subsidiary of the Company, (iii) any Permitted
Holder, (iv) an underwriter engaged in a firm commitment underwriting in
connection with a public offering of the Voting Stock of the Company or (v) any
current or future employee or director benefit plan of the Company or any
Subsidiary of the Company or any entity holding Common Stock of the Company for
or pursuant to the terms of any such plan. For purposes hereof, a person shall
not be deemed to be the beneficial owner of (A) any securities tendered pursuant
to a tender or exchange offer made by or on behalf of such person or any of such
person's affiliates until such tendered securities are accepted for purchase or
exchange thereunder, or (B) any securities if such beneficial ownership (1)
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 (2) is not also then reportable on Schedule 13D (or
any successor schedule) under the Exchange Act.
"Affiliate" means, when used with reference to any Person, any
other Person directly or indirectly controlling, controlled by, or under direct
or indirect common control of, the referent 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 management or policies of the referent
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. The terms "controlling" and "controlled"
have meanings correlative of the foregoing.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
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"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security to the extent
applicable to such transaction and as in effect from time to time.
"Board of Directors" means (i) with respect to a corporation,
the board of directors of the corporation or any committee thereof duly
authorized to act on behalf of the board of directors, (ii) with respect to a
partnership, the general partner or the board of directors of the general
partner, as applicable, of the partnership and (iii) with respect to any other
entity, the board or committee of that entity serving a similar function.
"Capital Stock" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person, but
excluding any debt securities convertible into such equity.
"Change of Control" means the occurrence of one or more of the
following events: (a) any Person has become an Acquiring Person, (b) the Company
consolidates with or merges into any other corporation, or conveys, transfers or
leases all or substantially all of its assets to any Person, or any other
corporation merges into the Company, and, in the case of any such transaction,
the outstanding Common Stock of the Company is changed or exchanged as a result,
unless the stockholders of the Company immediately before such transaction own,
directly or indirectly immediately following such transaction, at least a
majority of the combined voting power of the outstanding voting securities of
the corporation resulting from such transaction in substantially the same
proportion as their ownership of the Voting Stock of the Company immediately
before such transaction, or (c) any time the Continuing Directors do not
constitute a majority of the Board of Directors of the Company (or, if
applicable, a successor corporation to the Company); provided, that a Change of
Control shall not be deemed to have occurred if either (y) the last sale price
of the Common Stock for any five trading days during the ten trading days
immediately preceding the Change of Control is at least equal to 105% of the
Conversion Price in effect on the date of such Change of Control or (z) at least
90% of the consideration (excluding cash payments for fractional shares) in the
transaction or transactions constituting the Change of Control consists of
shares of common stock that are, or upon issuance will be, traded on a United
States national securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States.
"Clearstream" means Clearstream Banking, S.A. and its
successors.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary
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or involuntary liquidation, dissolution or winding up of the Company and which
is not subject to redemption by the Company. Subject to the provisions of
Section 12.06, however, shares issuable on conversion of Convertible
Subordinated Notes shall include only shares of the class designated as Common
Stock of the Company at the Issue Date or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which 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.
"Company" means the party named as such above until a successor
replaces it in accordance with Article V and thereafter means the successor.
"Continuing Directors" means, as of any date of determination,
any member of the Board of Directors who (i) was a member of such Board of
Directors on the Issue Date or (ii) was nominated for election or elected to
such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election.
"Convertible Subordinated Notes" means the 5.75% Convertible
Subordinated Notes due 2006 issued, authenticated and delivered under this
Indenture.
"Conversion Price" means the initial conversion price specified
in the form of Convertible Subordinated Note in Paragraph 16 of such form, as
adjusted in accordance with the provisions of Article XII.
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time the trust created by this Indenture
shall principally be administered; as of the Issue Date, the Corporate Trust
Office is located at 0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx, Xxxxxx, XX 00000.
"Credit Agreement" means the Amended and Restated Credit
Agreement dated as of March 30, 2001 (as amended, supplemented or otherwise
modified from time to time, this "Agreement") among the Company, the banks,
financial institutions and other institutional lenders listed on the signature
pages thereof as the Lenders, the banks listed on the signature pages thereof as
the Issuing Xxxxx, Xxxxxxx Xxxxx Xxxxxx Inc. ("SSBI"), as sole book manager,
Citicorp USA, Inc., as administrative agent for the lender parties and as
collateral agent, Deutsche Banc Alex. Xxxxx Inc. ("DBAB"), as syndication agent,
and SSBI and DBAB, as arrangers, as such agreement may be amended, restated,
modified, renewed, refunded, replaced or refinanced, in whole or in part, from
time to time.
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"Default" means any event that is, or after notice or passage of
time, or both, would be, an Event of Default.
"Depositary" means, with respect to any Global Securities, a
clearing agency that is registered as such under the Exchange Act and is
designated by the Company to act as Depositary for such Global Securities (or
any successor securities clearing agency so registered), which shall initially
be DTC.
"Designated Event" means the occurrence of a Change of Control
or a Termination of Trading.
"Designated Senior Debt" means (i) any Senior Debt outstanding
under the Credit Agreement, (ii) Senior Debt outstanding under the Company's
9.25% Senior Notes due May 1, 2006, the 10.50% Senior Subordinated Notes due May
1, 2009 and its 9.25% Senior Notes due February 15, 2008, as such notes or the
related indentures may be amended, restated, supplemented, modified, renewed,
refunded, replaced or refinanced, in whole or in part, from time to time, and
(iii) any particular Senior Debt if the instrument creating or evidencing the
same or the assumption or guarantee thereof (or related agreements or documents
to which the Company is a party) expressly provides that such Indebtedness shall
be "Designated Senior Debt" for purposes of the Indenture (provided that such
instrument, agreement or other document may place limitations and conditions on
the right of such Senior Debt to exercise the rights of Designated Senior Debt).
"DTC" means The Depository Trust Company, a New York
corporation.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system, and its successors.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Existing Convertible Subordinated Notes" means all of the
Company's outstanding indebtedness under its 5% Convertible Subordinated Notes
due 2007 and its 5 3/4% Convertible Subordinated Notes due 2003.
"GAAP" means generally accepted accounting principles set forth
in the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession of the United States, which are in effect from time to
time.
"Global Security" means a Convertible Subordinated Note that is
registered in the Register.
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"Global Securities Legend" means the legend labeled as such and
that is set forth in Exhibit A hereto, which is incorporated in and expressly
made a part of this Indenture.
"Indebtedness" means, with respect to any Person, all
obligations, whether or not contingent, of such Person (i) (a) for borrowed
money (including, but not limited to, any indebtedness secured by a security
interest, mortgage or other lien on the assets of that Person that is (1) given
to secure all or part of the purchase price of property subject thereto, whether
given to the vendor of such property or to another, or (2) existing on property
at the time of acquisition thereof), (b) evidenced by a note, debenture, bond or
other written instrument, (c) under a lease required to be capitalized on the
balance sheet of the lessee under GAAP or under any lease or related document
(including a purchase agreement) that provides that such Person is contractually
obligated to purchase or cause a third party to purchase and thereby guarantee a
minimum residual value of the lease property to the lessor and the obligations
of the Company under such lease or related document to purchase or to cause a
third party to purchase such leased property, (d) in respect of letters of
credit, bank guarantees or bankers' acceptances (including reimbursement
obligations with respect to any of the foregoing), (e) with respect to
Indebtedness secured by a mortgage, pledge, lien, encumbrance, charge or adverse
claim affecting title or resulting in an encumbrance to which the property or
assets of such Person are subject, whether or not the obligation secured thereby
shall have been assumed by or shall otherwise be such Person's legal liability,
(f) in respect of the balance of deferred and unpaid purchase price of any
property or assets, (g) under interest rate or currency swap agreements, cap,
floor and collar agreements, spot and forward contracts and similar agreements
and arrangements; (ii) with respect to any obligation of others of the type
described in the preceding clause (i) or under clause (iii) below assumed by or
guaranteed in any manner by such Person through an agreement to purchase
(including, without limitation, "take or pay" and similar arrangements),
contingent or otherwise (and the obligations of such Person under any such
assumptions, guarantees or other such arrangements); and (iii) any and all
deferrals, renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"Indenture" means this Indenture as amended or supplemented from
time to time.
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., XX Xxxxx
Securities Corporation, Xxxxxxxxx Xxxxxxxx, Inc., CIBC World Markets Corp. and
Xxxxxx Xxxxxx Partners LLC.
"Interest Payment Date" means June 1 and December 1 of each
year, commencing December 1, 2001.
"Issue Date" means May 25, 2001.
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"Liquidated Damages" has the meaning specified in paragraph 17
of the form of Convertible Subordinated Note which is attached as Exhibit A
hereto, which is incorporated in and expressly made part of this Indenture.
"Material Subsidiary" means any Subsidiary of the Company which
at the date of determination is a "significant Subsidiary" as defined in Rule
1-02(w) of Regulation S-X under the Securities Act and the Exchange Act.
"Maturity Date" means June 1, 2006.
"Note Custodian" means State Street Bank and Trust Company, as
custodian with respect to any Global Security, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Chief Accounting
Officer, any Executive Vice President, Senior Vice President or Vice President
(whether or not designated by a number or numbers or word or words before or
after the title "Vice President"), the Treasurer, any other executive officer,
the Secretary and any Assistant Treasurer or any Assistant Secretary of the
Company.
"Officers' Certificate" means a certificate signed by the
principal executive officer, principal financial officer or principal accounting
officer of the Company.
"Opinion of Counsel" means a written opinion from legal counsel
who may be an employee of or counsel to the Company or the Trustee except to the
extent otherwise indicated in this Indenture.
"Permitted Holders" means Xxxxx X. Xxx and his estates, spouses,
ancestors and lineal descendants (and spouses thereof), the legal
representatives of any of the foregoing, and the trustee of any bona fide trust
of which one or more of the foregoing are the sole beneficiaries or the
grantors, or any Person of which any of the foregoing, individually or
collectively, beneficially own (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act) voting securities representing at least a majority of the total
voting power of all classes of Capital Stock of such Person (exclusive of any
matters as to which class voting rights exist).
"Person" means any individual, corporation, partnership, joint
venture, trust, estate, unincorporated organization, limited liability company
or government or any agency or political subdivision thereof.
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"Redemption Date" when used with respect to any of the
Convertible Subordinated Notes to be redeemed, means the date fixed by the
Company for such redemption pursuant to Article III of this Indenture and the
Convertible Subordinated Notes.
"Redemption Price" when used with respect to any of the
Convertible Subordinated Notes to be redeemed, means the price fixed for such
redemption pursuant to Article III of this Indenture and the Convertible
Subordinated Notes.
"Registration Agreement" means the Registration Agreement
relating to the Convertible Subordinated Notes and Common Stock issuable upon
conversion of such Convertible Subordinated Notes dated May 25, 2001, between
the Company and the Initial Purchasers, as such agreement may be amended,
modified or supplemented from time to time.
"Regular Record Date" means the May 15 or November 15
immediately preceding each Interest Payment Date.
"Representative" means (a) the indenture trustee or other
trustee, agent or representative for any Senior Debt or (b) with respect to any
Senior Debt that does not have any such trustee, agent or other representative,
(i) in the case of such Senior Debt issued pursuant to an agreement providing
for voting arrangements as among the holders or owners of such Senior Debt, any
holder or owner of such Senior Debt acting with the consent of the required
Persons necessary to bind such holders or owners of such Senior Debt and (ii) in
the case of all other such Senior Debt, the holder or owner of such Senior Debt.
"Restricted Common Stock Legend" means the legend labeled as
such and that is set forth in Exhibit D hereto, which is incorporated in and
expressly made a part of this Indenture.
"Restricted Securities Legend" means the legend labeled as such
and that is set forth in Exhibit A hereto, which is incorporated in and
expressly made a part of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Senior Debt" means the principal of, premium, if any, and
interest on, rent under, and any other amounts payable on or in respect of any
Indebtedness of the Company (including, without limitation, any Obligations in
respect of such Indebtedness and, in the case of Designated Senior Debt, any
interest accruing after the filing of a petition by or against the Company under
any bankruptcy law, whether or not allowed as a claim after such filing in any
proceeding under such bankruptcy law), whether outstanding on the Issue Date or
thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the
Company (including all deferrals, renewals, extensions or
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refundings of, or amendments, modifications or supplements to the foregoing);
provided, however, that Senior Debt does not include (v) Indebtedness evidenced
by the Convertible Subordinated Notes, (w) any liability for federal, state,
local or other taxes owed or owing by the Company, (x) Indebtedness of the
Company to any Subsidiary of the Company except to the extent such Indebtedness
is of a type described in clause (ii) of the definition of Indebtedness, (y)
trade payables of the Company for goods, services or materials purchased in the
ordinary course of business (other than, to the extent they may otherwise
constitute trade payables, any obligations of the type described in clause (ii)
of the definition of Indebtedness), and (z) any particular Indebtedness in which
the instrument creating or evidencing the same expressly provides that such
Indebtedness shall not be senior in right of payment to, or is pari passu with,
or is subordinated or junior to, the Convertible Subordinated Notes.
"Shelf Registration Statement" shall have the meaning set forth
in the Registration Agreement.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of Capital Stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other subsidiaries of that Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner or
managing general partner of which is such Person or a Subsidiary of such Person
or (b) the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof).
"Termination of Trading" will be deemed to have occurred if the
Common Stock (or other common stock into which the Convertible Subordinated
Notes are then convertible) is neither listed for trading on a United States
national securities exchange nor approved for trading on an established
automated over-the-counter trading market in the United States.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the Issue Date, except as provided in
Sections 9.03 and 12.06.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor.
"Trust Officer" means an officer in the Corporate Trust Office
of the Trustee.
"U.S. Government Obligations" means direct obligation of the
United States of America for the payment of which the full faith and credit of
the United States of America is pledged. In order to have money available on a
payment date to pay
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principal or interest on the Convertible Subordinated Notes, the U.S. Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
"Voting Stock" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
SECTION 1.02. Other Definitions.
DEFINED IN SECTION
"Bankruptcy Law".................................... SECTION 6.01
"Business Day"...................................... SECTION 10.07
"Current Market Price".............................. SECTION 12.05
"Clearstream"....................................... SECTION 2.01
"Closing Price"..................................... SECTION 12.05
"Conversion Agent".................................. SECTION 2.03
"Custodian"......................................... SECTION 6.01
"Definitive Securities"............................. SECTION 2.01
"Designated Event Date"............................. SECTION 4.06
"Designated Event Offer"............................ SECTION 4.06
"Designated Event Offer Termination Date"........... SECTION 4.06
"Designated Event Payment".......................... SECTION 4.06
"Designated Event Payment Date"..................... SECTION 4.06
"Event of Default".................................. SECTION 6.01
"Expiration Time"................................... SECTION 12.05
"fair market value"................................. SECTION 12.05
"Global Security"................................... SECTION 2.01
"Legal Holiday"..................................... SECTION 10.07
"New Rights Plan.................................... SECTION 12.05
"non-electing share"................................ SECTION 12.06
"Paying Agent"...................................... SECTION 2.03
"Payment Blockage Notice"........................... SECTION 10.04
"Purchase Agreement"................................ SECTION 2.01
"Purchased Shares".................................. SECTION 12.05
"QIBs".............................................. SECTION 2.01
"Record Date"....................................... SECTION 12.05
"Register".......................................... SECTION 2.03
"Registrar"......................................... SECTION 2.03
"Regulation S"...................................... SECTION 2.01
"Rule 144A"......................................... SECTION 2.01
"Securities"........................................ SECTION 12.05
"trading day"....................................... SECTION 12.05
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"Trigger Event"..................................... SECTION 12.05
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the Commission;
"indenture securities" means the Convertible
Subordinated Notes;
"indenture security holder" means a holder of a
Convertible Subordinated Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Convertible Subordinated Notes means
the Company or any other obligor on the Convertible
Subordinated Notes.
All other terms in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by Commission rule under
the TIA have the meanings so assigned to them.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined
has the meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the
plural, and in the plural include the singular; and
(5) the male, female and neuter genders
include one another.
The terms and provisions contained in the Convertible
Subordinated Notes shall constitute, and are hereby expressly made, a part of
this Indenture and 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. However, to the extent any provision of any Convertible Subordinated
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling.
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ARTICLE II
THE CONVERTIBLE SUBORDINATED NOTES
SECTION 2.01. Form and Dating.
(a) Global Securities. The Convertible Subordinated Notes are
being offered and sold by the Company pursuant to a Purchase Agreement relating
to the Convertible Subordinated Notes, dated May 18, 2001, among the Company and
the Initial Purchasers (the "Purchase Agreement").
Convertible Subordinated Notes offered and sold (i) in reliance
on Regulation S under the Securities Act ("Regulation S") or (ii) to "qualified
institutional buyers" as defined in Rule 144A ("QIBs") in reliance on Rule 144A
under the Securities Act ("Rule 144A"), each as provided in the Purchase
Agreement, shall be issued in the form of one or more permanent global
securities in definitive, fully registered form without interest coupons with
the Global Securities Legend and Restricted Securities Legend set forth in
Exhibit A hereto, which is incorporated in and expressly made a part of this
Indenture (each, a "Global Security"). Any Global Security shall be deposited on
behalf of the purchasers of the Convertible Subordinated Notes represented
thereby with the Trustee, at its New York office, as custodian for the
Depositary, and registered in the name of the Depositary or a nominee of the
Depositary for the accounts of participants in the Depositary (and, in the case
of Convertible Subordinated Notes held in accordance with Regulation S,
registered with the Depositary for the accounts of designated agents holding on
behalf of the Euroclear System ("Euroclear") or Clearstream Banking, societe
anonyme ("Clearstream")), duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of a Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary or its nominee as hereinafter
provided.
(b) Book-Entry Provisions. This Section 2.01(b) shall apply only
to a Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(b) and the written order of the Company, authenticate and
deliver initially one or more Global Securities that (i) shall be registered in
the name of Cede & Co. or other nominee of such Depositary and (ii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as custodian for the Depositary pursuant to
a FAST Balance Certificate Agreement between the Depositary and the Trustee.
Agent Members shall have no rights under this Indenture with
respect to any Global Security held on their behalf by the Depositary or by the
Trustee as the custodian of the Depositary or under such Global Security, and
the Depositary may be
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treated by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or impair, as between the Depositary and its Agent Members, the operation of
customary practices of such Depositary governing the exercise of the rights of a
holder of a beneficial interest in any Global Security.
The provisions of the "Operating Procedures of the Euroclear
System" and "Terms and Conditions Governing Use of Euroclear" and the
"Management Regulations and Instructions to Participants" of Clearstream shall
be applicable to interests in any Global Securities that are held by
participants through Euroclear or Clearstream. The Trustee shall have no
obligation to notify holders of any such procedures or to monitor or enforce
compliance with the same.
(c) Definitive Securities. Except as provided in Section 2.06
and 2.10, owners of beneficial interests in Global Securities will not be
entitled to receive physical delivery of certificated Convertible Subordinated
Notes in definitive form. Purchasers of Securities who are not QIBs and did not
purchase Convertible Subordinated Notes sold in reliance on Regulation S under
the Securities Act (referred to herein as the "Non-Global Purchasers") will
receive certificated Convertible Subordinated Notes in definitive form bearing
the Restricted Securities Legend set forth in Exhibit A hereto, which is
incorporated in and expressly made a part of this Indenture. ("Definitive
Securities"). Definitive Securities will bear the Restricted Securities Legend
set forth on Exhibit A unless removed in accordance with Section 2.06(b).
SECTION 2.02. Execution and Authentication. One Officer shall sign the
Convertible Subordinated Notes for the Company by manual or facsimile signature.
The Company's seal may be reproduced on the Convertible Subordinated Notes.
If an Officer whose signature is on a Convertible Subordinated
Note no longer holds that office at the time the Convertible Subordinated Note
is authenticated, the Convertible Subordinated Note shall nevertheless be valid.
A Convertible Subordinated Note shall not be valid until
authenticated by the manual signature of the Trustee. The signature shall be
conclusive evidence that the Convertible Subordinated Note has been
authenticated under this Indenture.
Upon a written order of the Company signed by an Officer of the
Company, the Trustee shall authenticate Convertible Subordinated Notes for
original issue up to an aggregate principal amount of $250,000,000 (plus up to
$50,000,000 aggregate principal amount of Convertible Subordinated Notes that
may be sold by the Company pursuant to the over-allotment option granted
pursuant to the Purchase Agreement). The aggregate principal amount of
Convertible Subordinated Notes outstanding at any time may not exceed that
amount except as provided in Section 2.07.
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The Convertible Subordinated Notes shall be issuable only in
registered form without coupons and only in denominations of $1,000 or any
integral multiple thereof.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Convertible Subordinated Notes. An authenticating
agent may authenticate Convertible Subordinated Notes whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the same
right as an Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.03. The Trustee Registrar, Paying Agent and Conversion Agent.
The Company shall maintain or cause to be maintained in such locations as it
shall determine, which may be the Corporate Trust Office, an office or agency:
(i) where securities may be presented for registration of transfer or for
exchange ("Registrar"); (ii) where Convertible Subordinated Notes may be
presented for payment ("Paying Agent"); (iii) an office or agency where
Convertible Subordinated Notes may be presented for conversion (the "Conversion
Agent"); and (iv) where notices and demands to or upon the Company in respect of
Convertible Subordinated Notes and this Indenture may be served by the holders
of the Convertible Subordinated Notes. The Registrar shall keep a Register
("Register") of the Convertible Subordinated Notes and of their transfer and
exchange. The Company may appoint one or more co-registrars, one or more
additional paying agents and one or more additional conversion agents. The term
"Paying Agent" includes any additional paying agent and the term "Conversion
Agent" includes any additional Conversion Agent. The Company may change any
Paying Agent, Registrar, Conversion Agent or co-registrar without prior notice.
The Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture and shall enter into an appropriate agency agreement
with any Registrar, Paying Agent, Conversion Agent or co-registrar not a party
to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company or any of its subsidiaries may
act as Paying Agent, Registrar, Conversion Agent or co-registrar, except that
for purposes of Articles III and VIII and Section 4.06, neither the Company nor
any of its subsidiaries shall act as Paying Agent. If the Company fails to
appoint or maintain another entity as Registrar, or Paying Agent or Conversion
Agent, the Trustee shall act as such, and the Trustee shall initially act as
such.
SECTION 2.04. Paying Agent To Hold Money in Trust. The Company shall
require each Paying Agent (other than the Trustee, who hereby so agrees), to
agree in writing that the Paying Agent will hold in trust for the benefit of
holders of the Convertible Subordinated Notes or the Trustee all money held by
the Paying Agent for the payment of principal or interest (including Liquidated
Damages) on the Convertible Subordinated Notes, and will notify the Trustee of
any default by the Company in respect of making any such payment. While any such
default continues, the Trustee may require a Paying Agent to pay all money held
by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the
Paying Agent (if other than the Company or a Subsidiary of the
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Company) shall have no further liability for the money. If the Company or a
Subsidiary of the Company acts as Paying Agent, it shall segregate and hold in a
separate trust fund for the benefit of the holders of the Convertible
Subordinated Notes all money held by it as Paying Agent.
SECTION 2.05. Holder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of holders of Convertible Subordinated Notes and shall
otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar,
the Company shall furnish to the Trustee at least seven Business Days before
each Interest Payment Date, and as the Trustee may request in writing within
fifteen (15) 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
and as of such date as the Trustee may reasonably require of the names and
addresses of holders of Convertible Subordinated Notes.
SECTION 2.06. Transfer and Exchange. When Convertible Subordinated Notes
are presented to the Registrar or a co-registrar with a request to register a
transfer or to exchange them for an equal principal amount of Convertible
Subordinated Notes for other denominations, the Registrar shall register the
transfer or make the exchange if its requirements for such transactions are met.
To permit registrations of transfers and exchanges, the Company shall issue and
the Trustee shall authenticate Convertible Subordinated Notes at the Registrar's
request, bearing registration numbers not contemporaneously outstanding. No
service charge shall be made to a holder for any registration of transfer or
exchange (except as otherwise expressly permitted herein), but the Company may
require payment of a sum sufficient to cover any transfer tax or other
governmental charge payable upon exchanges pursuant to Sections 2.10, 3.07, 9.05
or 12.02.
The Company or the Registrar shall not be required (i) to issue,
register the transfer of or exchange Convertible Subordinated Notes during a
period beginning at the opening of business fifteen (15) days before the day of
any selection of Convertible Subordinated Notes for redemption under Section
3.03 and ending at the close of business on the day of selection, (ii) to
register the transfer or exchange of any Convertible Subordinated Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Convertible Subordinated Note being redeemed in part or (iii) to register
the transfer of any Convertible Subordinated Notes surrendered for repurchase
pursuant to Section 4.06.
All Convertible Subordinated Notes issued upon any transfer or
exchange of Convertible Subordinated 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 Convertible
Subordinated Notes surrendered upon such registration of transfer or exchange.
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(a) Notwithstanding any provision to the contrary herein, so
long as a Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, or of any
beneficial interest therein, shall only be made in accordance with Sections
2.01(b) and 2.10 and this Section 2.06(a); provided, however, that beneficial
interests in a Global Security may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the Global Security in
accordance with the transfer restrictions set forth under the heading "Notice to
Investors" in the Offering Memorandum and, if applicable, in the Restricted
Securities Legend.
Except for transfers or exchanges made in accordance with
paragraphs (i) through (iv) of this Section 2.06(a) and Section 2.10, transfers
of a Global Security shall be limited to transfers of such Global Security in
whole, but not in part, to nominees of the Depositary or to a successor of the
Depositary or such successor's nominee.
(i) Global Security To Definitive Security. If an owner
of a beneficial interest in a Global Security deposited with the
Depositary or with the Trustee as custodian for the Depositary wishes at
any time to transfer its interest in such Global Security to a Person
who is required to take delivery thereof in the form of a Definitive
Security, such owner may, subject to the rules and procedures of
Euroclear or Clearstream, if applicable, and the Depositary, cause the
exchange of such interest for one or more Definitive Securities of any
authorized denomination or denominations and of the same aggregate
principal amount. Upon receipt by the Registrar of (1) instructions from
Euroclear or Clearstream, if applicable, and the Depositary directing
the Trustee to authenticate and deliver one or more Definitive
Securities of the same aggregate principal amount as the beneficial
interest in the Global Security to be exchanged, such instructions to
contain the name or names of the designated transferee or transferees,
the authorized denomination or denominations of the Definitive
Securities to be so issued and appropriate delivery instructions, (2) a
certificate substantially in the form of Exhibit B attached hereto given
by the owner of such beneficial interest, (3) a certificate
substantially in the form of Exhibit C attached hereto given by the
Person acquiring the Definitive Securities for which such interest is
being exchanged, to the effect set forth therein, and (4) such other
certifications or other information and, in the case of transfers
pursuant to Rule 144 under the Securities Act, legal opinions as the
Company may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act, then Euroclear or
Clearstream, if applicable, or the Registrar, as the case may be, will
instruct the Depositary to reduce or cause to be reduced such Global
Security by the aggregate principal amount of the beneficial interest
therein to be exchanged and to debit or cause to be debited from the
account of the Person making such transfer the beneficial interest in
the Global Security that is being transferred, and concurrently with
such reduction and debit the Company shall execute, and the Trustee
shall authenticate and deliver, one or more
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Definitive Securities of the same aggregate principal amount in
accordance with the instructions referred to above.
(ii) Definitive Security to Definitive Security. If a
holder of a Definitive Security wishes at any time to transfer such
Definitive Security (or portion thereof) to a Person who is required to
take delivery thereof in the form of a Definitive Security, such holder
may, subject to the restrictions on transfer set forth herein and in
such Definitive Security, cause the transfer of such Definitive Security
(or any portion thereof in a principal amount equal to an authorized
denomination) to such transferee. Upon receipt by the Registrar of (1)
such Definitive Security, duly endorsed as provided herein, (2)
instructions from such holder directing the Trustee to authenticate and
deliver one or more Definitive Securities of the same aggregate
principal amount as the Definitive Security (or portion thereof) to be
transferred, such instructions to contain the name or names of the
designated transferee or transferees, the authorized denomination or
denominations of the Definitive Securities to be so issued and
appropriate delivery instructions, (3) a certificate from the holder of
the Definitive Security to be transferred in substantially the form of
Exhibit B attached hereto, (4) a certificate substantially in the form
of Exhibit C attached hereto given by the Person acquiring the
Definitive Securities (or portion thereof), to the effect set forth
therein, and (5) such other certifications or other information and, in
the case of transfers pursuant to Rule 144 under the Securities Act,
legal opinions as the Company may reasonably require to confirm that
such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act, then the Registrar, shall cancel or cause to be canceled
such Definitive Security and concurrently therewith, the Company shall
execute, and the Trustee shall authenticate and deliver, one or more
Definitive Securities in the appropriate aggregate principal amount, in
accordance with the instructions referred to above and, if only a
portion of a Definitive Security is transferred as aforesaid,
concurrently therewith Company shall execute and the Trustee shall
authenticate and deliver to the transferor a Definitive Security in a
principal amount equal to the principal amount which has not been
transferred. A holder of a Definitive Security may at any time exchange
such Definitive Security for one or more Definitive Securities of other
authorized denominations and in the same aggregate principal amount and
registered in the same name by delivering such Definitive Security, duly
endorsed as provided herein, to the Trustee together with instructions
directing the Trustee to authenticate and deliver one or more Definitive
Securities in the same aggregate principal amount and registered in the
same name as the Definitive Security to be exchanged, and the Registrar
thereupon shall cancel or caused to be canceled such Definitive Security
and concurrently therewith the Company shall execute and Trustee shall
authenticate and deliver, one or more Definitive Securities in the same
aggregate principal amount and registered in the same name as the
Definitive Security being exchanged.
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(iii) Definitive Security to Global Security. If a
holder of a Definitive Security wishes at any time to transfer such
Definitive Security (or portion thereof) to a Person who is not required
to take delivery thereof in the form of a Definitive Security, such
holder shall, subject to the restrictions on transfer set forth herein
and in such Definitive Security and the rules of the Depositary and
Euroclear and Clearstream, as applicable, cause the exchange of such
Definitive Security for a beneficial interest in the Global Security.
Upon receipt by the Registrar of (1) such Definitive Security, duly
endorsed as provided herein, (2) instructions from such holder directing
the Trustee to increase the aggregate principal amount of the Global
Security deposited with the Depository or with the Trustee as custodian
for the Depository by the same aggregate principal amount at maturity as
the Definitive Security to be exchanged, such instructions to contain
the name or names of a member of, or participant in, the Depository that
is designated as the transferee, the account of such member or
participant and other appropriate delivery instructions, (3) the
assignment form on the back of the Definitive Security completed in full
(certifying in effect that such transfer complies with Rule 144A or
Regulation S under the Securities Act or is otherwise being made to a
Person who is not required to take delivery of the Convertible
Subordinated Notes in the form of a Definitive Security) and (4) such
other certifications or other information and, in the case of transfers
pursuant to Rule 144 under the Securities Act, legal opinions as the
Company may reasonably require to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act, then the Trustee
shall cancel or cause to be canceled such Definitive Security and
concurrently therewith shall increase the aggregate principal amount of
the Global Security by the same aggregate principal amount as the
Definitive Security canceled.
(iv) Other Exchanges. In the event that a Global
Security is exchanged for Convertible Subordinated Notes in definitive
registered form pursuant to Section 2.10 prior to the effectiveness of a
Shelf Registration Statement with respect to such Convertible
Subordinated Notes, such Convertible Subordinated Notes may be exchanged
only in accordance with such procedures as are substantially consistent
with the provisions of clauses (ii) and (iii) above (including the
certification requirements intended to ensure that such transfers comply
with Rule 144A or Regulation S under the Securities Act, as the case may
be) and such other procedures as may from time to time be adopted by the
Company.
(b) Except in connection with a Shelf Registration Statement
contemplated by and in accordance with the terms of the Registration Agreement,
if Convertible Subordinated Notes are issued upon the registration of transfer,
exchange or replacement of Convertible Subordinated Notes bearing a Restricted
Securities Legend, or if a request is made to remove such a Restrictive
Securities Legend on Convertible Subordinated Notes, the Convertible
Subordinated Notes so issued shall bear the
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Restricted Securities Legend, or a Restricted Securities Legend shall not be
removed, as the case may be, unless there is delivered to the Company such
satisfactory evidence, which, in the case of a transfer made pursuant to Rule
144 under the Securities Act, may include an opinion of counsel given in
accordance with the laws in the State of New York, as may be reasonably required
by the Company, that neither the legend nor the restrictions on transfer set
forth therein are required to ensure that transfers thereof comply with the
provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act or
that such Convertible Subordinated Notes are not "restricted" within the meaning
of Rule 144 under the Securities Act. Upon provision to the Company of such
satisfactory evidence, the Trustee, at the written direction of the Company,
shall authenticate and deliver Convertible Subordinated Notes that do not bear
the legend. The Company shall not otherwise be entitled to require the delivery
of a legal opinion in connection with any transfer or exchange of Securities.
(c) Neither the Trustee nor any Agent shall have any
responsibility for any actions taken or not taken by the Depositary.
(d) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Convertible Subordinated Notes (including any transfers between
or among Depositary's participants or beneficial owners of interests in any
Global Security) other than to require delivery of such certificates and other
documentation as is expressly required by, and to do so if and when expressly
required by, the terms of this Indenture and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 2.07. Replacement Convertible Subordinated Notes. If the holder
of a Convertible Subordinated Note claims that the Convertible Subordinated Note
has been lost, destroyed or wrongfully taken, the Company shall issue and the
Trustee shall authenticate a replacement Convertible Subordinated Note if the
Trustee's requirements are met. If required by the Trustee or the Company as a
condition of receiving a replacement Convertible Subordinated Note, the holder
of a Convertible Subordinated Note must provide a certificate of loss and an
indemnity and/or an indemnity bond sufficient, in the judgment of both the
Company and the Trustee, to fully protect the Company, the Trustee, any Agent
and any authenticating agent from any loss, liability, cost or expense which any
of them may suffer or incur if the Convertible Subordinated Note is replaced.
The Company and the Trustee may charge the relevant holder for their expenses in
replacing any Convertible Subordinated Note.
The Trustee or any authenticating agent may authenticate any
such substituted Convertible Subordinated 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 Convertible Subordinated Note, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses connected therewith. In case
any Convertible Subordinated Note which has matured or is
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about to mature, or has been called for redemption pursuant to Article III,
submitted for repurchase pursuant to Section 4.06 or is about to be converted
into Common Stock pursuant to Article XII, shall become mutilated or be
destroyed, lost or stolen, the Company may, instead of issuing a substitute
Convertible Subordinated Note, pay or authorize the payment of or convert or
authorize the conversion of the same (without surrender thereof except in the
case of a mutilated Convertible Subordinated Note), as the case may be, if the
applicant for such payment or conversion shall furnish to the Company, to the
Trustee and, if applicable, to the 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 case of destruction, loss or theft, evidence satisfactory to the Company, the
Trustee and, if applicable, any paying agent or conversion agent of the
destruction, loss or theft of such Convertible Subordinated Note and of the
ownership thereof.
Every replacement Convertible Subordinated Note is an additional
obligation of the Company and shall be entitled to all the benefits provided
under this Indenture equally and proportionately with all other Convertible
Subordinated Notes duly issued, authenticated and delivered hereunder.
SECTION 2.08. Outstanding Convertible Subordinated Notes. The
Convertible Subordinated Notes outstanding at any time are all the Convertible
Subordinated Notes properly authenticated by the Trustee except for those
canceled by the Trustee, those delivered to it for cancellation, and those
described in this Section as not outstanding.
If a Convertible Subordinated Note is replaced pursuant to
Section 2.07, it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Convertible Subordinated Note is held by a
bona fide purchaser.
If Convertible Subordinated Notes are considered paid under
Section 4.01 or converted under Article XII, they cease to be outstanding and
interest (and Liquidated Damages, if any) on them ceases to accrue.
Subject to Section 2.09 hereof, a Convertible Subordinated Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Convertible Subordinated Note.
SECTION 2.09. When Treasury Convertible Subordinated Notes Disregarded.
In determining whether the holders of the required principal amount of
Convertible Subordinated Notes have concurred in any direction, waiver or
consent, Convertible Subordinated Notes owned by the Company or an Affiliate of
the Company shall be considered as though they are not outstanding except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Convertible Subordinated
Notes which the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. Temporary Convertible Subordinated Notes.
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(a) Until definitive Convertible Subordinated Notes are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Convertible Subordinated Notes. Temporary Convertible Subordinated
Notes shall be substantially in the form of definitive Convertible Subordinated
Notes but may have variations that the Company considers appropriate for
temporary Convertible Subordinated Notes and shall be reasonably acceptable to
the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Convertible Subordinated Notes in exchange
for temporary Convertible Subordinated Notes.
(b) Except for transfers made in accordance with Section
2.06(a), a Global Security deposited with the Depositary or with the Trustee as
custodian for the Depositary pursuant to Section 2.01 shall be transferred to
the beneficial owners thereof in the form of certificated Convertible
Subordinated Notes in definitive form only if such transfer complies with
Section 2.06 and (i) the Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a "clearing agency" registered under the Exchange Act
and a successor Depositary is not appointed by the Company within 90 days of
such notice, or (ii) an Event of Default has occurred and is continuing.
(c) Any Global Security or interest thereon that is transferable
to the beneficial owners thereof in the form of certificated Convertible
Subordinated Notes in definitive form shall, if held by the Depository, be
surrendered by the Depositary to the Trustee, without charge, and the Trustee
shall authenticate and deliver, upon such transfer of each portion of such
Global Security, an equal aggregate principal amount of Convertible Subordinated
Notes of authorized denominations in the form of certificated Convertible
Subordinated Notes in definitive form. Any portion of a Global Security
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any Convertible
Subordinated Notes in the form of certificated Convertible Subordinated Notes in
definitive form delivered in exchange for an interest in the Global Security
shall, except as otherwise provided by Section 2.06(b), bear the Restricted
Securities Legend set forth in Exhibit A hereto.
(d) Prior to any transfer pursuant to Section 2.10(b), the
registered holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action which a holder is entitled to take under this
Indenture or the Convertible Subordinated Notes.
(e) The Company will make available to the Trustee a reasonable
supply of certificated Convertible Subordinated Notes in definitive form without
interest coupons.
SECTION 2.11. Cancellation. The Company at any time may deliver
Convertible Subordinated Notes to the Trustee for cancellation. The Registrar
and Paying Agent shall forward to the Trustee any Convertible Subordinated Notes
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surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else may cancel Convertible Subordinated Notes surrendered
for registration of transfer, exchange, payment, replacement, conversion,
redemption, repurchase or cancellation. Upon written instructions of the
Company, the Trustee shall destroy and dispose of canceled Convertible
Subordinated Notes as the Company directs and, after such destruction, shall
deliver a certificate of destruction to the Company. The Company may not issue
new Convertible Subordinated Notes to replace Convertible Subordinated Notes
that it has paid, redeemed or repurchased or that have been delivered to the
Trustee for cancellation or that any holder has (i) converted pursuant to
Article XII hereof, (ii) submitted for redemption pursuant to Article III hereof
or (iii) submitted for repurchase pursuant to Section 4.06 hereof (unless
revoked).
SECTION 2.12. Defaulted Interest. If the Company fails to make a payment
of interest on the Convertible Subordinated Notes, it shall pay such defaulted
interest plus, to the extent lawful, any interest payable on the defaulted
interest. It may pay such defaulted interest, plus any such interest payable on
it, to the Persons who are holders of Convertible Subordinated Notes on a
subsequent special record date. The Company shall fix any such special record
date and payment date. At least 15 days before any such special record date, the
Company shall mail to holders of the Convertible Subordinated Notes a notice
that states the special record date, payment date and amount of such interest to
be paid.
SECTION 2.13. CUSIP Number. The Company in issuing the Convertible
Subordinated Notes may use a "CUSIP" number, and if so, such CUSIP number shall
be included in notices of redemption, repurchase or exchange as a convenience to
holders of Convertible Subordinated Notes; provided, however, that any such
notice may state that no representation is made as to the correctness or
accuracy of the CUSIP number printed in the notice or on the Convertible
Subordinated Notes and that reliance may be placed only on the other
identification numbers printed on the Convertible Subordinated Notes. The
Company will promptly notify the Trustee of any change in the CUSIP number.
SECTION 2.14. Regulation S. The Company agrees that it will refuse to
register any transfer of Convertible Subordinated Notes or any shares of Common
Stock issued upon conversion of Convertible Subordinated Notes that is not made
in accordance with the provisions of Regulation S under the Securities Act,
pursuant to a registration statement which has been declared effective under the
Securities Act or pursuant to an available exemption from the registration
requirements of the Securities Act; provided that the provisions of this
paragraph shall not be applicable to any Convertible Subordinated Notes which do
not bear a Restricted Securities Legend or to any shares of Common Stock
evidenced by certificates which do not bear a Restricted Common Stock Legend.
ARTICLE III
REDEMPTION
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SECTION 3.01. Optional Redemption. The Company may redeem all or any
portion of the Convertible Subordinated Notes upon the terms and at the
Redemption Prices set forth in each of the Convertible Subordinated Notes. Any
redemption shall be made pursuant to Paragraph 5 of the Convertible Subordinated
Notes and this Article III.
SECTION 3.02. Notices to Trustee. If the Company elects to redeem
Convertible Subordinated Notes pursuant to the optional redemption provisions of
paragraph 5 of the Convertible Subordinated Notes, it shall furnish to the
Trustee, at least 15 (20 if less than all of the then outstanding Convertible
Subordinated Notes are to be redeemed or if the Company requests the Trustee to
give notice of redemption pursuant to Section 3.04) days but not more than 60
days before a Redemption Date (unless a shorter period shall be satisfactory to
the Trustee), an Officers' Certificate setting forth (i) the Section of this
Indenture pursuant to which the redemption shall occur, (ii) the Redemption
Date, (iii) the principal amount of Convertible Subordinated Notes (if less than
all) to be redeemed, (iv) the Redemption Price and (v) the CUSIP number of the
Convertible Subordinated Notes being redeemed.
SECTION 3.03. Selection of Convertible Subordinated Notes To Be
Redeemed. If less than all the Convertible Subordinated Notes are to be
redeemed, the Trustee shall select the Convertible Subordinated Notes to be
redeemed by a method that complies with the requirements of the principal
national securities exchange, if any, on which the Convertible Subordinated
Notes are listed or quoted or, if the Convertible Subordinated Notes are not so
listed, on a pro rata basis by lot or by any other method that the Trustee
considers fair and appropriate. The Trustee shall make the selection not more
than 60 days and not less than 15 days before the Redemption Date from
Convertible Subordinated Notes outstanding and not previously called for
redemption. The Trustee may select for redemption a portion of the principal of
any Convertible Subordinated Notes that has a denomination larger than $1,000.
Convertible Subordinated Notes and portions thereof will be redeemed in the
amount of $1,000 or integral multiples of $1,000.
Provisions of this Indenture that apply to Convertible
Subordinated Notes called for redemption also apply to portions of Convertible
Subordinated Notes called for redemption. The Trustee shall notify the Company
promptly of the Convertible Subordinated Notes or portions of Convertible
Subordinated Notes to be called for redemption.
If any Convertible Subordinated Note selected for partial
redemption is converted in part after such selection, the converted portion of
such Convertible Subordinated Note shall be deemed (so far as may be) to be the
portion to be selected for redemption. The Convertible Subordinated Notes (or
portion thereof) so selected shall be deemed duly selected for redemption for
all purposes hereof, notwithstanding that any such Convertible Subordinated Note
is converted in whole or in part before the mailing of the notice of redemption.
Upon any redemption of less than all the Convertible Subordinated Notes, the
Company and the Trustee may treat as outstanding any Convertible Subordinated
Notes surrendered for conversion during the period of 15 days
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next preceding the mailing of a notice of redemption and need not treat as
outstanding any Convertible Subordinated Note authenticated and delivered during
such period in exchange for the unconverted portion of any Convertible
Subordinated Note converted in part during such period.
SECTION 3.04. Notice of Redemption. At least 15 days but not more than
60 days before a Redemption Date, the Company shall mail by first class mail a
notice of redemption to each holder whose Convertible Subordinated Notes are to
be redeemed.
The notice shall identify the Convertible Subordinated Notes to
be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if any Convertible Subordinated Note is
being redeemed in part, the portion of the principal amount of such
Convertible Subordinated Note to be redeemed and that, after the
Redemption Date, upon surrender of such Convertible Subordinated Note, a
new Convertible Subordinated Note or Convertible Subordinated Notes in
principal amount equal to the unredeemed portion will be issued in the
name of the holder thereof;
(4) that Convertible Subordinated Notes
called for redemption must be surrendered to the Paying Agent to collect
the Redemption Price;
(5) that interest and Liquidated Damages, if
applicable, on Convertible Subordinated Notes called for redemption and
for which funds have been set apart for payment, ceases to accrue on and
after the Redemption Date (unless the Company defaults in the payment of
the Redemption Price or the Paying Agent is prohibited from making such
payment pursuant to the terms of this Indenture);
(6) the paragraph of the Convertible
Subordinated Notes pursuant to which the Convertible Subordinated Notes
called for redemption are being redeemed;
(7) the aggregate principal amount of
Convertible Subordinated Notes (if less than all) that are being
redeemed;
(8) the CUSIP number of the Convertible
Subordinated Notes (provided that the disclaimer permitted by Section
2.13 may be made);
(9) the name and address of the Paying
Agent;
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(10) that Convertible Subordinated Notes
called for redemption may be converted at any time prior to the close of
business on the last trading day immediately preceding the Redemption
Date and if not converted prior to the close of business on such
Redemption Date, the right of conversion will be lost; and
(11) that in the case of Convertible
Subordinated Notes or portions thereof called for redemption on a date
that is also an Interest Payment Date, the interest payment and
Liquidated Damages, if any, due on such date shall be paid to the Person
in whose name the Convertible Subordinated Note is registered at the
close of business on the relevant Regular Record Date.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the holder receives
such notice. In any case, failure to give such notice my mail or any defect in
the notice to the holder of any Convertible Subordinated Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any Convertible Subordinated Note.
At the Company's request, the Trustee shall give notice of
redemption in the Company's name and at its expense.
SECTION 3.05. Effect of Notice of Redemption. Once notice of redemption
is mailed, Convertible Subordinated Notes called for redemption become due and
payable on the Redemption Date at the Redemption Price set forth in the
Convertible Subordinated Note.
SECTION 3.06. Deposit of Redemption Price. On or before the Redemption
Date, the Company shall deposit with the Trustee or with the Paying Agent money
in immediately available funds sufficient to pay the Redemption Price of and
accrued interest (including Liquidated Damages) on all Convertible Subordinated
Notes to be redeemed on that date. The Trustee or the Paying Agent shall return
to the Company any money not required for that purpose.
On and after the Redemption Date, unless the Company shall
default in the payment of the Redemption Price, interest and Liquidated Damages,
if applicable, will cease to accrue on the principal amount of the Convertible
Subordinated Notes or portions thereof called for redemption and for which funds
have been set apart for payment and such Convertible Subordinated Notes, or
portions thereof, shall cease after the close of business on the Business Day
immediately preceding the Redemption Date to be convertible into Common Stock
and, except as provided in this Section 3.06 and 8.4, to be entitled to any
benefit or security under this Indenture, and the holders thereof shall have no
right in respect of such Convertible Subordinated Notes, or portions thereof,
except the right to receive the Redemption price thereof and unpaid interest and
Liquidated Damages, if any, to (but excluding) the Redemption Date. In the case
of Convertible Subordinated Notes or portions thereof redeemed on a Redemption
Date
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which is also an Interest Payment Date, the interest payment and Liquidated
Damages, if any, due on such Interest Payment Date shall be paid to the Person
in whose name the Convertible Subordinated Note is registered at the close of
business on the relevant Regular Record Date.
SECTION 3.07. Convertible Subordinated Notes Redeemed in Part. Upon
surrender of a Convertible Subordinated Note that is redeemed in part only, the
Company shall issue and the Trustee shall authenticate and deliver to the holder
of a Convertible Subordinated Note a new Convertible Subordinated Note equal in
principal amount to the unredeemed portion of the Convertible Subordinated Note
surrendered, at the expense of the Company, except as specified in Section 2.06.
SECTION 3.08. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Convertible Subordinated Notes, the Company
may arrange for the purchase and conversion of any Convertible Subordinated
Notes by an arrangement with one or more investment bankers or other purchasers
to purchase such Convertible Subordinated Notes by paying to the Trustee in
trust for the holders, on or before the Redemption Date, an amount not less than
the applicable Redemption Price, together with interest and Liquidated Damages,
if any, accrued to the Redemption Date, of such Convertible Subordinated Notes.
Notwithstanding anything to the contrary contained in this Article III, the
obligation of the Company to pay the Redemption Price of such Convertible
Subordinated Notes, together with interest and Liquidated Damages, if any,
accrued to the Redemption Date, shall be deemed to be satisfied and discharged
to the extent such amount is so paid by the purchasers. If such an agreement is
entered into, a copy of which will be filed with the Trustee prior to the
Redemption Date, any Convertible Subordinated Notes not duly surrendered for
conversion by the holders thereof may, at the option of the Company, be deemed,
to the fullest extent permitted by law, acquired by such purchasers from such
holders and (notwithstanding anything to the contrary contained in Article XII)
surrendered by such purchasers for conversion, all as of immediately prior to
the close of business on the Redemption Date (and the right to convert any such
Convertible Subordinated Notes shall be deemed to have been extended through
such time), subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it in the same manner as it would monies deposited with it by the
Company for the redemption of Convertible Subordinated Notes. Without the
Trustee's prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Convertible Subordinated Notes
shall increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Convertible Subordinated Notes between
the Company and such purchasers to which the Trustee has not consented in
writing, including the costs and expenses incurred by the Trustee in the defense
of any claim or liability arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under
this Indenture.
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ARTICLE IV
COVENANTS
SECTION 4.01. Payment of Convertible Subordinated Notes. The Company
shall pay the principal of and interest (including Liquidated Damages) on the
Convertible Subordinated Notes on the dates and in the manner provided in the
Convertible Subordinated Notes. Principal, interest, the Redemption Price or the
Designated Event Payment shall be considered paid on the date due if the Trustee
or Paying Agent (other than the Company or a Subsidiary of the Company) holds as
of 10:00 a.m. New York City time on that date immediately available funds
designated for and sufficient to pay all principal, interest (including
Liquidated Damages), the Redemption Price and the Designated Event Payment then
due; provided, however, that money held by the Agent for the benefit of holders
of Senior Debt pursuant to the provisions of Article XI hereof or the payment of
which to the holders of the Convertible Subordinated Notes is prohibited by
Article XI shall not be considered to be designated for the payment of any
principal of or interest on the Convertible Subordinated Notes within the
meaning of this Section 4.01.
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on (i)
overdue principal, at the rate borne by Convertible Subordinated Notes,
compounded semiannually; and (ii) overdue installments of interest (without
regard to any applicable grace period) at the same rate, compounded
semiannually.
SECTION 4.02. Commission Reports. Whether or not required by the rules
and regulations of the Commission, so long as any Convertible Subordinated Notes
are outstanding, the Company will file with the Commission and furnish to the
Trustee and the holders of Convertible Subordinated Notes all quarterly and
annual financial information (without exhibits) required to be contained in a
filing with the Commission on Forms 10-Q and 10-K, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual consolidated financial statements only, a report
thereon by the Company's independent auditors. The Company shall not be required
to file any report or other information with the Commission if the Commission
does not permit such filing, although such reports or other information will be
required to be furnished to the Trustee.
SECTION 4.03. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate stating that a review of the activities of the Company and
its subsidiaries during the preceding fiscal year has been made under the
supervision of the signing Officers with a view to determining whether the
Company has fully performed its obligations under this Indenture and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge, the Company is not in default in the performance or
observance of any of the terms and conditions hereof (or, if any Default or
Event of Default shall have occurred, describing all such Defaults or Events of
Default
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of which he or she may have knowledge) and, that to the best of his or her
knowledge, no event has occurred and remains in existence by reason of which
payments on account of the principal of or interest (including Liquidated
Damages) on the Convertible Subordinated Notes are prohibited.
The Company shall, so long as any of the Convertible
Subordinated Notes are outstanding, deliver to the Trustee, forthwith upon
becoming aware of any Default or Event of Default, an Officers' Certificate
specifying such Default or Event of Default.
SECTION 4.04. Maintenance of Office or Agency. The Company shall
maintain or cause to be maintained the office or agency required under Section
2.03. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency not
maintained 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, presentations, surrenders, notices and demands with respect to
the Convertible Subordinated Notes may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Convertible Subordinated Notes may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designation.
SECTION 4.05. Continued Existence. Subject to Article V, the Company
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
SECTION 4.06. Repurchase Upon Designated Event. Following a Designated
Event (the date of each such occurrence being the "Designated Event Date"), the
Company shall notify the holders of Convertible Subordinated Notes in writing of
such occurrence and shall make an offer (the "Designated Event Offer") to
repurchase all Convertible Subordinated Notes then outstanding at a repurchase
price in cash (the "Designated Event Payment") equal to 101% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to, but excluding, the Designated Event Payment Date (as defined below).
Notice of a Designated Event shall be mailed by or at the
direction of the Company to the holders of Convertible Subordinated Notes as
shown on the Register of such holders maintained by the Registrar not more than
20 days after the applicable Designated Event Date at the addresses as shown on
the Register of holders maintained by the Registrar, with a copy to the Trustee
and the Paying Agent. The Designated Event Offer shall remain open until a
specified date (the "Designated Event Offer Termination Date") which is at least
20 Business Days from the date such notice is mailed. During the period
specified in such notice, holders of Convertible Subordinated Notes may elect to
tender their Convertible Subordinated Notes in whole or in part in integral
multiples of $1,000 in exchange for cash. Payment shall be made by the Company
in respect of
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Convertible Subordinated Notes properly tendered pursuant to this Section on a
specified Business Day (the "Designated Event Payment Date") which shall be no
earlier than five Business Days after the applicable Designated Event Offer
Termination Date and no later than 60 days after the applicable Designated
Event.
The notice, which shall govern the terms of the Designated Event
Offer, shall include such disclosures as are required by law and shall state:
(a) that a Designated Event Offer is being made pursuant to this
Section 4.06 and that all Convertible Subordinated Notes will be accepted for
payment;
(b) the transaction or transactions that constitute the
Designated Event;
(c) the Designated Event Payment for each Convertible
Subordinated Note, the Designated Event Offer Termination Date and the
Designated Event Payment Date;
(d) that any Convertible Subordinated Note not accepted for
payment will continue to accrue interest and Liquidated Damages, if applicable,
in accordance with the terms thereof;
(e) that, unless the Company defaults on making the Designated
Event Payment, any Convertible Subordinated Note accepted for payment pursuant
to the Designated Event Offer shall cease to accrue interest and Liquidated
Damages, if applicable, on the Designated Event Payment Date and no further
interest or Liquidated Damages shall accrue on or after such date;
(f) that holders electing to have Convertible Subordinated Notes
repurchased pursuant to a Designated Event Offer will be required to surrender
their Convertible Subordinated Notes to the Paying Agent at the address
specified in the notice prior to 5:00 p.m., New York City time, on the
Designated Event Offer Termination Date and must complete any form letter of
transmittal proposed by the Company and acceptable to the Trustee and the Paying
Agent;
(g) that holders of Convertible Subordinated Notes will be
entitled to withdraw their election if the Paying Agent receives, not later than
5:00 p.m., New York City time, on the Designated Event Offer Termination Date, a
facsimile transmission or letter setting forth the name of the holder, the
principal amount of Convertible Subordinated Notes the holder delivered for
purchase, the Convertible Subordinated Note certificate number (if any) and a
statement that such holder is withdrawing his election to have such Convertible
Subordinated Notes purchased;
(h) that holders whose Convertible Subordinated Notes are
repurchased only in part will be issued Convertible Subordinated Notes equal in
principal amount to the unpurchased portion of the Convertible Subordinated
Notes surrendered;
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(i) the instructions that holders must follow in order to tender
their Convertible Subordinated Notes; and
(j) that in the case of a Designated Event Offer Termination
Date that is also an Interest Payment Date, the interest payment and Liquidated
Damages, if any, due on such Interest Payment Date shall be paid to the Person
in whose name the Convertible Subordinated Note is registered at the close of
business on the relevant Designated Event Offer Termination Date.
On the Designated Event Offer Termination Date the Company shall
(i) accept for payment all Convertible Subordinated Notes or portions thereof
properly tendered pursuant to the Designated Event Offer, (ii) deposit with the
Paying Agent money sufficient to pay the Designated Event Payment with respect
to all Convertible Subordinated Notes or portions thereof so tendered and
accepted and (iii) deliver or cause to be delivered to the Trustee the
Convertible Subordinated Notes so accepted together with an Officers'
Certificate setting forth the aggregate principal amount of Convertible
Subordinated Notes or portions thereof tendered to and accepted for payment by
the Company. On the Designated Event Payment Date, the Paying Agent shall mail
or deliver to the holders of Convertible Subordinated Notes so accepted, the
Designated Event Payment, and the Trustee shall promptly authenticate and mail
or cause to be transferred by book entry to such holders a new Convertible
Subordinated Note equal in principal amount to any unpurchased portion of the
Convertible Subordinated Note surrendered, if any; provided that such new
Convertible Subordinate Notes will be in a principal amount of $1,000 or an
integral multiple thereof. Any Convertible Subordinated Notes not so accepted
shall be promptly mailed or delivered by the Company to the holder thereof.
In the case of any reclassification, change, consolidation,
merger, combination or sale or conveyance to which Section 12.06 applies, in
which the Common Stock of the Company is changed or exchanged as a result into
the right to receive stock, securities or other property or assets (including
cash) which includes shares of common stock of the Company or another Person
that are, or upon issuance will be, traded on a United States national
securities exchange or approved for trading on an established automated
over-the-counter trading market in the United States and such shares constitute
at the time such change or exchange becomes effective in excess of 50% of the
aggregate fair market value of such stock, securities other property and assets
(including cash) (as determined by the Company, which determination shall be
conclusive and binding), then the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture (which shall
comply with the TIA as in force at the date of execution of such supplemental
indenture) modifying the provisions of this Indenture relating to the right of
holders of Convertible Subordinated Notes to cause the Company to repurchase
Convertible Subordinated Notes following a Designated Event, including the
applicable provisions of this Section 4.06 and the definitions of Designated
Event, Change of Control and Termination of Trading, as appropriate, as
determined in good faith by the Company (which determination shall be conclusive
and binding), to make such provision
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apply to such common stock and the issuer thereof if different from the Company
and Common Stock of the Company (in lieu of the Company and the Common Stock of
the Company).
The Designated Event Offer shall be made by the Company in
compliance with all applicable provisions of the Exchange Act, and all
applicable tender offer rules promulgated thereunder, to the extent such laws
and regulations are then applicable and shall include all instructions and
materials that the Company shall reasonably deem necessary to enable such
holders of Convertible Subordinated Notes to tender their Convertible
Subordinated Notes.
SECTION 4.07. 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 7.08, a Trustee, so that there
shall at all times be a Trustee hereunder.
SECTION 4.08. 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 wherever enacted, now or at any time
hereafter enforced, that may affect the Company's obligation to pay the
Convertible Subordinated Notes; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
insofar as such law applies to the Convertible Subordinated Notes, and covenants
that it shall 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 has been enacted.
SECTION 4.09. Taxes. The Company shall, and shall cause each of its
subsidiaries to, pay prior to delinquency all taxes, assessments and government
levies; provided, however, that the Company shall not be required to pay or
cause to be paid any such tax, assessment or levy (A) if the failure to do so
will not, in the aggregate, have a material adverse impact on the Company and
its subsidiaries taken as a whole, or (B) if the amount, applicability or
validity is being contested in good faith by appropriate proceedings.
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SECTION 4.10. Liquidated Damages. If Liquidated Damages are payable by
the Company pursuant to Section 5 of the Registration Agreement, the Company
shall deliver to the Trustee a certificate to the effect stating (i) the amount
of such Liquidated Damages that are payable and (ii) the date on which such
damages are payable. Unless and until a Corporate Trust Officer of the Trustee
receives such a certificate, the Trustee may assume without inquiry that no
Liquidated Damages are payable. If the Company has paid Liquidated Damages
directly to the persons entitled to them, the Company shall deliver to the
Trustee a certificate setting forth the particulars of such payment."
ARTICLE V
SUCCESSORS
SECTION 5.01. When the Company May Merge, Etc. The Company may not, in a
single transaction or series of related transactions, consolidate or merge with
or into (whether or not the Company is the surviving corporation), or sell,
assign, transfer, lease, convey or otherwise dispose of all or substantially all
of its properties or assets to, any Person as an entirety or substantially as an
entirety unless:
(a) either
(i) the Company shall be the surviving or continuing
corporation or
(ii) the Person formed by or surviving any such
consolidation or into which the Company is merged (if other than the
Company) or the Person which acquires by sale, assignment, transfer,
lease, conveyance or other disposition the properties and assets of the
Company substantially as an entirety
(1) shall be a corporation organized and
validly existing under the laws of the United States or any
State thereof or the District of Columbia and
(2) shall expressly assume, by indenture in
form reasonably satisfactory to the Trustee, executed and
delivered to the Trustee, the due and punctual payment of the
principal of, and premium, if any, and interest and Liquidated
Damages, if any, on all of the Convertible Subordinated Notes
and the performance of every covenant of the Convertible
Subordinated Notes and this Indenture and the Registration
Agreement on the part of the Company to be performed or
observed, including, without limitation, modifications to rights
of holders to cause the repurchase of Convertible Subordinated
Notes upon a Designated Event in accordance with the penultimate
paragraph of Section 4.06 and conversion rights in accordance
with Section 12.06 to the extent required by such Sections;
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(b) immediately after giving effect to such transaction no
Default and no Event of Default shall have occurred and be continuing; and
(c) the Company or such Person shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with this provision of this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been satisfied.
For purposes of this Section 5.01, the transfer (by lease,
assignment, sale or otherwise, in a single transaction or series of
transactions) of all or substantially all of the properties or assets of one or
more subsidiaries of the Company, the capital stock of which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 5.02. Successor Corporation Substituted. Upon any such
consolidation, merger, sale, assignment, conveyance, lease, transfer or other
disposition in accordance with Section 5.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
assignment, conveyance, lease, transfer or other disposition is made will
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor had
been named as the Company therein, and thereafter (except in the case of a sale,
assignment, transfer, lease, conveyance or other disposition) the predecessor
corporation will be relieved of all further obligations and covenants under this
Indenture and the Convertible Subordinated Notes.
SECTION 5.03. Purchase Option on Change of Control. This Article V does
not affect the obligations of the Company (including without limitation any
successor to the Company) under Section 4.06.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" with respect to
any Convertible Subordinated Notes occurs if:
(a) the Company defaults in the payment (whether or not such
payment is prohibited by the subordination provisions set forth in
Article XI of this Indenture) of principal of, or premium, if any, on
the Convertible Subordinated Notes when due at maturity, upon
repurchase, upon acceleration or otherwise, including, without
limitation, failure of the Company to make any optional redemption
payment when required pursuant to Article III; or
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(b) the Company defaults in the payment (whether or not such
payment is prohibited by the subordination provisions set forth in
Article XI of this Indenture) of any installment of interest or
Liquidated Damages on the Convertible Subordinated Notes when due
(including any interest or Liquidated Damages payable in connection with
a repurchase pursuant to Section 4.06 or in connection with any optional
redemption payment pursuant to Article III) and continuance of such
default for 30 days or more; or
(c) the Company defaults (other than a default set forth in
clauses (a) and (b) above and clauses (d) and (e) below) in the
performance of, or breaches, any other covenant or warranty of the
Company set forth in this Indenture or the Convertible Subordinated
Notes and fails to remedy such default or breach within a period of 60
days after the receipt of written notice from the Trustee or the holders
of at least 25% in aggregate principal amount of the then outstanding
Convertible Subordinated Notes; or
(d) the Company defaults in the payment of the Designated Event
Payment in respect of the Convertible Subordinated Notes on the
Designated Event Payment Date, whether or not such payment is prohibited
by the subordination provisions set forth in Article XI of this
Indenture; or
(e) the Company fails to provide timely notice of any Designated
Event in accordance with Section 4.06 hereof; or
(f) failure of the Company or any Material Subsidiary to make
any payment at maturity, including any applicable grace period, in
respect of indebtedness for borrowed money of, or guaranteed or assumed
by, the Company or any Material Subsidiary, which payment is in an
amount in excess of $20,000,000, and continuance of such failure for 30
days after notice thereof from the Trustee or the holders of at least
25% in aggregate principal amount of the then outstanding Convertible
Subordinated Notes; or
(g) default by the Company or any Material Subsidiary with
respect to any indebtedness referred to in clause (f) above, which
default results in the acceleration of any such indebtedness of an
amount in excess of $20,000,000 without such indebtedness having been
paid or discharged or such acceleration having been cured, waived,
rescinded or annulled for 30 days after notice thereof from the Trustee
or the holders of at least 25% in aggregate principal amount of the then
outstanding Convertible Subordinated Notes; or
(h) the Company or any Material Subsidiary, pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
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(ii) consents to the entry of an order for relief
against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors;
(v) makes the admission in writing that it generally
is unable to pay its debts as the same become due; or
(i) a court of competent jurisdiction enters a judgment,
order or decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Material Subsidiary in an involuntary case,
(ii) appoints a Custodian of the Company or any
Material Subsidiary, and the order or decree remains unstayed
and in effect for 90 days.
(iii) orders the liquidation of the Company or any
Material Subsidiary, and the order or decree remains unstayed
and in effect for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
In the case of any Event of Default, pursuant to the provisions
of this Section 6.01, occurring by reason of any willful action (or inaction)
taken (or not taken) by or on behalf of the Company with the intention of
avoiding payment of the premium which the Company would have had to pay if the
Company then had elected to redeem the Convertible Subordinated Notes pursuant
to Paragraph 5 of the Convertible Subordinated Notes, an equivalent premium
shall also become and be immediately due and payable to the extent permitted by
law, upon the acceleration of the Convertible Subordinated Notes notwithstanding
anything contained in this Indenture or in the Convertible Subordinated Notes to
the contrary.
If an Event of Default occurs prior to any date on which the
Company is prohibited from redeeming the Convertible Subordinated Notes,
pursuant to Paragraph 5 of the Convertible Subordinated Notes, by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding the prohibition on redemption of the Convertible
Subordinated Notes prior to such date, then the premium specified in this
Indenture shall also become immediately due and payable
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to the extent permitted by law upon the acceleration of the Convertible
Subordinated Notes.
SECTION 6.02. Acceleration. If an Event of Default (other than an Event
of Default with respect to the Company specified in clauses (h) and (i) of
Section 6.01) occurs and is continuing, then and in every such case the Trustee,
by written notice to the Company, or the holders of at least 25% in aggregate
principal amount of the then outstanding Convertible Subordinated Notes, by
written notice to the Company and the Trustee, may declare the unpaid principal
of, premium, if any, and accrued and unpaid interest and Liquidated Damages, if
any, on all the Convertible Subordinated Notes to be due and payable. Upon such
declaration such principal amount, premium, if any, and accrued and unpaid
interest and Liquidated Damages, if any, shall become immediately due and
payable, notwithstanding anything contained in this Indenture or the Convertible
Subordinated Notes to the contrary, but subject to the provisions of Article XI
hereof. If any Event of Default with respect to the Company specified in clauses
(h) or (i) of Section 6.01 occurs, all unpaid principal of and premium, if any,
and accrued and unpaid interest and Liquidated Damages, if any, on the
Convertible Subordinated Notes then outstanding shall become automatically due
and payable subject to the provisions of Article XI hereof, without any
declaration or other act on the part of the Trustee or any holder of Convertible
Subordinated Notes.
The holders of a majority in aggregate principal amount of the
then outstanding Convertible Subordinated Notes by notice to the Trustee may
rescind an acceleration of the Convertible Subordinated Notes and its
consequences if all existing Events of Default (other than nonpayment of
principal of or premium, if any, and interest and Liquidated Damages, if any, on
the Convertible Subordinated Notes which has become due solely by virtue of such
acceleration) have been cured or waived and if the rescission would not conflict
with any judgment or decree of any court of competent jurisdiction. No such
rescission shall affect any subsequent Default or Event of Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy by proceeding at law or
in equity to collect the payment of principal of or interest or Liquidated
Damages, if applicable, on the Convertible Subordinated Notes or to enforce the
performance of any provision of the Convertible Subordinated Notes or this
Indenture. The Trustee may maintain a proceeding even if it does not possess any
of the Convertible Subordinated Notes or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any holder of a Convertible
Subordinated Note in exercising any right or remedy occurring upon an Event of
Default shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are cumulative to the extent
permitted by law.
SECTION 6.04. Waiver of Past Defaults. The holders of a majority in
aggregate principal amount of the Convertible Subordinated Notes then
outstanding may, on behalf of the holders of all the Convertible Subordinated
Notes, waive an existing Default or Event of Default and its consequences,
except a Default or
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Event of Default in the payment of the principal of, premium, if any, or
interest or Liquidated Damages, if applicable, on the Convertible Subordinated
Notes (other than the non-payment of principal of and premium, if any, and
interest and Liquidated Damages, if any, on the Convertible Subordinated Notes
which has become due solely by virtue of an acceleration which has been duly
rescinded as provided above), or in respect of a covenant or provision of this
Indenture which cannot be modified or amended without the consent of all holders
of Convertible Subordinated Notes. When a Default or Event of Default is waived,
it is cured and stops continuing. No waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
SECTION 6.05. Control by Majority. The holders of a majority in
aggregate principal amount of the then outstanding Convertible Subordinated
Notes may 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
it. However, the Trustee may refuse to follow any direction that conflicts with
law or this Indenture that the Trustee determines may be unduly prejudicial to
the rights of other holders of Convertible Subordinated Notes or that may
involve the Trustee in personal liability; provided that the Trustee shall have
no duty or obligation (subject to Section 7.01) to ascertain whether or not such
actions of forebearances are unduly prejudicial to such holders; provided,
further, that the Trustee may take any other action the Trustee deems proper
that is not inconsistent with such directions.
SECTION 6.06. Limitation on Suits. A holder of a Convertible
Subordinated Note may not pursue any remedy with respect to this Indenture or
the Convertible Subordinated Notes unless:
(1) the holder gives to the Trustee notice
of a continuing Event of Default;
(2) the holders of at least 25% in principal
amount of the then outstanding Convertible Subordinated Notes make a
request to the Trustee to pursue the remedy;
(3) such holder or holders offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee
against any loss, liability or expense;
(4) the Trustee does not comply with the
request within 60 days after receipt of the request and the offer and,
if requested, the provision of indemnity; and
(5) during such 60-day period the holders of
a majority in principal amount of the then outstanding Convertible
Subordinated Notes do not give the Trustee a direction inconsistent with
the request.
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A holder of a Convertible Subordinated Note may not use this
Indenture to prejudice the rights of another holder or to obtain a preference or
priority over another holder.
SECTION 6.07. Rights of Holders To Receive Payment. Subject to the
provisions of Article XI hereof, notwithstanding any other provision of this
Indenture, the right of any holder of a Convertible Subordinated Note to receive
payment of principal, premium, if any, and interest and Liquidated Damages, if
any, on the Convertible Subordinated Note, on or after the respective due dates
expressed in the Convertible Subordinated Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, or to bring
suit for the enforcement of the right to convert the Convertible Subordinated
Note shall not be impaired or affected without the consent of the holder of a
Convertible Subordinated Note.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(a), (b) or (d) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust against
the Company for the whole amount of principal and interest and Liquidated
Damages, if any, remaining unpaid on the Convertible Subordinated Notes and
interest on overdue principal and interest and Liquidated Damages, if any, and
such further amount as shall be sufficient to cover the costs and, to the extent
lawful, expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the holders of
Convertible Subordinated Notes allowed in any judicial proceedings relative to
the Company, its creditors or its property. Nothing contained herein shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any holder of a Convertible Subordinated Note any plan of
reorganization, arrangement, adjustment or composition affecting the Convertible
Subordinated Notes or the rights of any holder thereof, or to authorize the
Trustee to vote in respect of the claim of any holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant to
this Article VI, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section
7.07, including payment of all compensation, expenses and
liabilities incurred, and all advances made, by the Trustee, and
the costs and expenses of collection;
Second: to holders of Senior Debt to the extent required
by Article XI;
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Third: to holders of Convertible Subordinated Notes for
amounts due and unpaid on the Convertible Subordinated Notes for
principal, premium, if any, and interest and Liquidated Damages,
if any, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Convertible
Subordinated Notes for principal, premium, if any, and interest
and Liquidated Damages, if any, respectively; and
Fourth: to the Company.
The Trustee may fix a special record date and payment date for
any payment to holders of Convertible Subordinated Notes made pursuant to this
section. At least 15 days before any such special record date, the Trustee shall
mail to holders of the Convertible Subordinated Notes a notice that states the
special record date, payment date and amount of such interest to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as a Trustee, a court in its discretion may
require the filing by any party litigant in the suit, other than the Trustee, of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section does not apply to a
suit by the Trustee, a suit by a holder pursuant to Section 6.07 or a suit by
holders of more than 10% in principal amount of the then outstanding Convertible
Subordinated Notes.
ARTICLE VII
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this
Indenture and covenants and agrees to perform the same, as herein expressed.
Whether or not herein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Article VII.
SECTION 7.01. Duties of the Trustee.
(a) If an Event of Default known to the Trustee has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent Person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known
to the Trustee:
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(1) The duties of the Trustee shall be determined solely
by the express provisions of this Indenture and the Trustee need perform
only those duties that are specifically set forth in this Indenture and
no others and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(2) In the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the form required by this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section;
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that is in any way related to the Trustee is subject
to paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any financial liability in the performance
of any of its duties or the exercise of any of its rights and powers hereunder,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk of liability is not reasonably assured
to it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. Rights of the Trustee.
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, security or other document
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believed by it to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter contained therein.
(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 is herein specifically prescribed). In
addition, before the Trustee acts or refrains from acting, it may require an
Officers' Certificate, an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
attorneys and agents and other Persons not regularly in its employ and shall not
be responsible for the misconduct or negligence of any attorney or agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith without negligence or willful misconduct which it
believes to be authorized or within its discretion, rights or powers.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by Officers of the Company.
(f) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder.
(g) 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
discretion of any of the holders of Convertible Subordinated Notes pursuant to
the provisions of this Indenture, unless such holders have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred therein or thereby.
(h) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, security or other
document unless requested in writing to do so by the holders of not less than a
majority in aggregate principal amount of the Convertible Subordinated Notes
then outstanding, provided that if the Trustee determines in its discretion to
make any such investigation, then it shall be entitled, upon reasonable prior
notice and during normal business hours, to examine the books and records and
the premises of the Company, personally or by agent or attorney, and the
reasonable expenses of every such examination shall be paid by the Company or,
if paid by the Trustee or any predecessor Trustee, shall be reimbursed by the
Company upon demand.
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(i) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful misconduct
(j) The Trustee shall not be responsible for the computation of
any adjustment to the Conversion Price or for any determination as to whether an
adjustment is required and shall not be deemed to have knowledge of any
adjustment unless and until it shall have received the notice from the Company
contemplated by Section 12.05(j).
SECTION 7.03. Individual Rights of the Trustee. Subject to Sections 7.10
and 7.11, the Trustee in its individual or any other capacity may become the
owner or pledgee of Convertible Subordinated Notes with the same rights it would
have if it were not the Trustee and may otherwise deal with the Company or an
Affiliate of the Company and receive, collect, hold and retain collections from
the Company with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Convertible Subordinated Notes. It shall not be accountable for the
Company's use of the proceeds from the Convertible Subordinated Notes or any
money paid to the Company or upon the Company's direction under any provision of
this Indenture. It shall not be responsible for the use or application of any
money received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the
Convertible Subordinated Notes or any other document in connection with the sale
of the Convertible Subordinated Notes or pursuant to this Indenture other than
its certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if it is known to the Trustee, the Trustee shall
mail to each holder of a Convertible Subordinated Note a notice of the Default
or Event of Default within 60 days after it occurs. A Default or an Event of
Default shall not be considered known to the Trustee unless it is a Default or
Event of Default in the payment of principal or interest when due under Section
6.01(a), (b) or (d) or the Trustee shall have received notice thereof, in
accordance with this Indenture, from the Company or from the holders of a
majority in principal amount of the outstanding Convertible Subordinated Notes.
Except in the case of a Default or Event of Default in payment of principal of,
premium, if any, or interest or Liquidated Damages, if any, on any Convertible
Subordinated Note, the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interest of the holders of the Convertible Subordinated Notes.
SECTION 7.06. Reports by the Trustee to Holders. Within 60 days after
the reporting date stated in Section 10.10, the Trustee shall mail to holders of
Convertible Subordinated Notes a brief report dated as of such reporting date
that complies with TIA Section 313(a) (but if no event described in TIA Section
313(a) has occurred within twelve months preceding the reporting date, no report
need be transmitted). The Trustee
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also shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by
mail all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to holders of
Convertible Subordinated Notes shall be filed, at the expense of the Company, by
the Trustee with the Commission and each stock exchange or securities market, if
any, on which the Convertible Subordinated Notes are listed. The Company shall
timely notify the Trustee when the Convertible Subordinated Notes are listed or
quoted on any stock exchange or securities market.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time and the Trustee shall be entitled to reasonable
compensation for its acceptance of this Indenture and its services hereunder.
The Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by or on behalf of it in addition to the compensation for its services.
Such expenses may include the reasonable compensation, disbursements and
expenses of the Trustee's agents, counsel and other persons not regularly in its
employ.
The Company shall indemnify the Trustee against any loss,
liability or expense incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture and the trusts
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises, except as set forth in the
next paragraph. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim with counsel designated by the Company, who may be outside
counsel to the Company but shall in all events be reasonably satisfactory to the
Trustee, and the Trustee shall cooperate in the defense. In addition, the
Trustee may retain one separate counsel and, if deemed advisable by such
counsel, local counsel, and the Company shall pay the reasonable fees and
expenses of such separate counsel and local counsel. The indemnification herein
extends to any settlement, provided that the Company will not be liable for any
settlement made without its consent, provided, further, that such consent will
not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against
any loss or liability incurred by the Trustee through its own negligence or
willful misconduct.
The Trustee shall have a lien prior to the Convertible
Subordinated Notes on all money or property held or collected by the Trustee to
secure the Company's payment obligations in this Section 7.07, except that held
in trust to pay principal and interest and Liquidated Damages, if any, on
Convertible Subordinated Notes. Such liens and the Company's obligations under
this Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
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When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(h) or (i) occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. Replacement of the Trustee. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section 7.08.
The Trustee may resign at any time and be discharged from the
trust hereby created by so notifying the Company. The holders of a majority in
principal amount of the then outstanding Convertible Subordinated Notes may
remove the Trustee by so notifying the Trustee and the Company in writing and
may appoint a successor Trustee. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section
7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(3) a Custodian or public officer takes
charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
holders of a majority in principal amount of the then outstanding Convertible
Subordinated Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the holders of at least 10% in principal amount of the then outstanding
Convertible Subordinated Notes may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee after written request by any holder of a
Convertible Subordinated Note who has been a holder for at least six months
fails to comply with Section 7.10, such holder may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a
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notice of its succession to holders of Convertible Subordinated Notes. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, provided that all sums owing to the retiring Trustee
hereunder have been paid and subject to the lien provided for in Section 7.07.
Notwithstanding the replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations under Section 7.07 shall continue for the benefit of
the retiring Trustee with respect to expenses and liabilities incurred by it
prior to such replacement.
Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in the preceding paragraph.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business (including the trust created by this
Indenture) to, another corporation or national banking association, the
resulting, surviving or transferee corporation or national banking association
without any further act shall be the successor Trustee with the same effect as
if the successor Trustee had been named as the Trustee herein.
SECTION 7.10. Eligibility, Disqualification. This Indenture shall always
have a Trustee who satisfies the requirements of TIA Section 310(a)(1). The
Trustee shall always have a combined capital and surplus as stated in Section
10.10. The Trustee is subject to TIA Section 310(b) regarding the
disqualification of a trustee upon acquiring a conflicting interest.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship set forth in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Indenture. When (a) the Company delivers to
the Trustee for cancellation all Convertible Subordinated Notes theretofore
authenticated (other than any other Convertible Subordinated Notes which have
been destroyed, lost or stolen and in lieu of or in substitution for which other
Convertible Subordinated Notes have been authenticated and delivered) and not
theretofore canceled, or (b) all the Convertible Subordinated Notes not
theretofore canceled or delivered to the Trustee for cancellation have become
due and payable, or are by their terms will become due and payable within one
year or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company deposits with the Trustee, in trust, amounts sufficient to pay at
maturity or upon redemption of all of the Convertible Subordinated Notes (other
than any
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Convertible Subordinated Notes which have been mutilated, destroyed, lost or
stolen and in lieu of or in substitution for which other Convertible
Subordinated Notes have been authenticated and delivered) not theretofore
canceled or delivered to the Trustee for cancellation, including principal and
premium, if any, and interest and Liquidated Damages, if any, due or to become
due to such date of maturity or Redemption Date, as the case may be, and if in
either case the Company also pays, or causes 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) rights of registration of transfer, substitution,
replacement and exchange and conversion of Convertible Subordinated Notes, (ii)
rights hereunder of holders of Convertible Subordinated Notes to receive
payments of principal of and premium, if any, and interest, and Liquidated
Damages, if any, on, the Convertible Subordinated Notes, (iii) the obligations
under Sections 2.03 and 8.05 hereof and (iv) the rights, obligations and
immunities of the Trustee hereunder), and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel as required by
Section 10.04 and at the Company's cost and expense, 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 reasonably and 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 Convertible
Subordinated Notes.
SECTION 8.02. Deposited Monies to be Held in Trust by Trustee. Subject
to Section 8.04, all monies deposited with the Trustee pursuant to Section 8.01
shall be held in trust and applied by it to the payment, notwithstanding the
provisions of Article XI, either directly or through the Paying Agent, to the
holders of the particular Convertible Subordinated Notes for the payment or
redemption of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest, and Liquidated
Damages, if any, and premium, if any.
SECTION 8.03. Paying Agent to Repay Monies Held. Upon the satisfaction
and discharge of this Indenture, all monies then held by any Paying Agent (other
than the Trustee) shall, upon the Company's demand, 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 8.04. Return of Unclaimed Monies. Subject to the requirements of
applicable law, any monies deposited with or paid to the Trustee for payment of
the principal of, premium, if any, or interest (including Liquidated Damages) on
Convertible Subordinated Notes and not applied but remaining unclaimed by the
holders thereof for two years after the date upon which the principal of,
premium, if any, or interest (including Liquidated Damages) on such Convertible
Subordinated Notes, as the case may be, have become due and payable, shall be
repaid to the Company by the Trustee on demand; provided, however, that the
Company, or the Trustee at the request of the Company, shall have first caused
notice of such payment to the Company to be mailed to each holder of a
Convertible Subordinated Note entitled thereto no less than 30 days prior to
such payment and all liability of the Trustee shall thereupon cease with respect
to such
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monies; and the holder of any of the Convertible Subordinated 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.
SECTION 8.05. Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money in accordance with Section 8.02 by reason of any order
or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Convertible Subordinated Notes shall be revived and reinstated
as though no deposit had occurred pursuant to Section 8.01 until such time as
the Trustee or the Paying Agent is permitted to apply all such money in
accordance with Section 8.02; provided, however, that if the Company makes any
payment of interest (including Liquidated Damages) on or principal of any
Convertible Subordinated Note following the reinstatement of its obligations,
the Company shall be subrogated to the rights of the holders thereof to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENTS
SECTION 9.01. Without the Consent of Holders. The Company and the
Trustee may amend this Indenture or the Convertible Subordinated Notes without
notice to or the consent of any holder of a Convertible Subordinated Note for
the purposes of:
(a) curing any ambiguity or correcting or supplementing any
defective or inconsistent provision contained in this Indenture or making any
other changes in the provisions of this Indenture which the Company and the
Trustee may deem necessary or desirable provided such amendment does not
materially and adversely affect the legal rights under the Indenture of the
holders of Convertible Subordinated Notes.
(b) providing for uncertificated Convertible Subordinated Notes
in addition to or in place of certificated Convertible Subordinated Notes;
(c) evidencing the succession of another Person to the Company
and providing for the assumption by such successor of the covenants and
obligations of the Company thereunder and in the Convertible Subordinated Notes
as permitted by Section 5.01;
(d) providing for conversion rights and/or repurchase rights of
holders of Convertible Subordinated Notes in the event of consolidation, merger
or sale of all or substantially all of the assets of the Company as required to
comply with Sections 5.01 and/or 12.06;
(e) reducing the Conversion Price;
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(f) making any changes that would provide the holders of the
Convertible Subordinated Notes with any additional rights or benefits or that
does not adversely affect the legal rights under this Indenture of any such
holder; or
(g) complying with the requirements of the Commission in order
to effect or maintain the qualification of the Indenture under the TIA.
SECTION 9.02. With the Consent of Holders. Subject to Section 6.07, the
Company and the Trustee may amend this Indenture or the Convertible Subordinated
Notes with the written consent of the holders of at least a majority in
principal amount of the then outstanding Convertible Subordinated Notes
(including consents obtained in connection with a tender offer or exchange offer
for Convertible Subordinated Notes).
Subject to Sections 6.04 and 6.07, the holders of a majority in
principal amount of the Convertible Subordinated Notes then outstanding may also
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Convertible Subordinated Notes.
However, without the consent of each holder of a Convertible
Subordinated Note affected, an amendment or waiver under this Section may not
(with respect to any Convertible Subordinated Notes held by a non-consenting
holder):
(a) reduce the principal amount of Convertible Subordinated
Notes whose holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or premium on or change the fixed
maturity of any Convertible Subordinated Note or, except as permitted
pursuant to Section 9.01(a), alter the redemption provisions with
respect thereto;
(c) reduce the rate of, or change the time for payment of,
interest, including defaulted interest, or Liquidated Damages on any
Convertible Subordinated Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages on
the Convertible Subordinated Notes (except a rescission of acceleration
of the Convertible Subordinated Notes by the holders of at least a
majority in aggregate principal amount of the Convertible Subordinated
Notes then outstanding and a waiver of the payment default that resulted
from such acceleration);
(e) make the principal of, or premium, if any, or interest or
Liquidated Damages on, any Convertible Subordinated Note payable in
money other than as provided for herein and in the Convertible
Subordinated Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or Events of Default or the rights of
holders of Convertible
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Subordinated Notes to receive payments of principal of, premium, if any,
or interest or Liquidated Damages on the Convertible Subordinated Notes;
(g) waive a redemption payment with respect to any Convertible
Subordinated Notes;
(h) except as permitted herein (including Section 9.01(a)),
increase the Conversion Price or modify the provisions contained herein
relating to conversion of the Convertible Subordinated Notes in a manner
adverse to the holders thereof; or
(i) make any change to the abilities of holders of Convertible
Subordinated Notes to enforce their rights hereunder or the provisions
of clauses (a) through (i) of this Section 9.02.
To secure a consent of the holders of Convertible Subordinated
Notes under this Section, it shall not be necessary for such holders to approve
the particular form of any proposed amendment or waiver, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes
effective, the Company shall mail to holders of Convertible Subordinated Notes a
notice briefly describing the amendment or waiver.
In order to amend any provisions of Article XI, holders of at
least 75% in aggregate principal amount of Convertible Subordinated Notes then
outstanding must consent to such amendment if such amendment would adversely
affect the rights of holders of Convertible Subordinated Notes.
SECTION 9.03. Compliance with the Trust Indenture Act. Every amendment
to this Indenture or the Convertible Subordinated Notes shall be set forth in a
supplemental indenture that complies with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents. Until an amendment or
waiver becomes effective, a consent to it by a holder of a Convertible
Subordinated Note is a continuing consent by the holder and every subsequent
holder of a Convertible Subordinated Note or portion of a Convertible
Subordinated Note that evidences the same debt as the consenting holder's
Convertible Subordinated Note, even if notation of the consent is not made on
any Convertible Subordinated Note. However, any such holder or subsequent holder
may revoke the consent as to his or her Convertible Subordinated Note or portion
of a Convertible Subordinated Note if the Trustee receives the notice of
revocation before the date on which the Trustee receives an Officers'
Certificate certifying that the holders of the requisite principal amount of
Convertible Subordinated Notes have consented to the amendment or waiver.
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The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the holders of Convertible Subordinated
Notes entitled to consent to any amendment or waiver. If a record date is fixed,
then notwithstanding the provisions of the immediately preceding paragraph,
those Persons who were holders of Convertible Subordinated Notes at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to such amendment or waiver or to revoke any consent
previously given, whether or not such Persons continue to be holders after such
record date. No consent shall be valid or effective for more than 90 days after
such record date unless consents from holders of the principal amount of
Convertible Subordinated Notes required hereunder for such amendment or waiver
to be effective shall have also been given and not revoked within such 90-day
period.
After an amendment or waiver becomes effective it shall bind
every holder of a Convertible Subordinated Note, unless it is of the type
described in clauses (a) through (i) of Section 9.02. In such case, the
amendment or waiver shall bind each holder of a Convertible Subordinated Note
who has consented to it and every subsequent holder of a Convertible
Subordinated Note or portion of a Convertible Subordinated Note that evidences
the same debt as the consenting holder's Convertible Subordinated Note.
SECTION 9.05. Notation on or Exchange of Convertible Subordinated Notes.
Convertible Subordinated Notes authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article IX may, and shall if
required by the Trustee, bear a notation in the form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Convertible Subordinated Notes so modified as to conform, in
the opinion of the Company and the Trustee, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for outstanding Convertible Subordinated Notes without
charge to the holders of the Convertible Subordinated Notes, except as specified
in Section 2.06.
SECTION 9.06. Trustee Protected. The Trustee shall sign any amendment or
supplemental indenture authorized pursuant to this Article IX if such amendment
or supplemental indenture does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign it. In signing such amendment or supplemental indenture, the Trustee
shall be entitled to receive, and shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel as conclusive evidence that such
amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE X
GENERAL PROVISIONS
SECTION 10.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with the duties
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imposed by TIA Section 318(c), such duties imposed by such section of the TIA
shall control. If any provision of this Indenture expressly modifies or excludes
any provision of the TIA that may be so modified or excluded, the Indenture
provision so modifying or excluding such provision of the TIA shall be deemed to
apply.
SECTION 10.02. Notices. Any notice or communication by the Company or
the Trustee to the other is duly given if in writing and delivered in person or
mailed by first-class mail, with postage prepaid (registered or certified,
return receipt requested), or sent by facsimile or overnight air couriers
guaranteeing next day delivery, to the other's address as stated in Section
10.10. The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to holders
of Convertible Subordinated Notes) shall be deemed to have been duly given at
the time delivered by hand, if Personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; when transmission is
confirmed, if transmitted by facsimile; and the next Business Day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery. Notwithstanding the foregoing, all notices to the Trustee shall be
effective only upon receipt by a Trust Officer.
Any notice or communication to a holder of a Convertible
Subordinated Note shall be mailed by first-class mail, with postage prepaid, to
his or her address shown on the Register kept by the Registrar. Failure to mail
a notice or communication to a holder or any defect in it shall not affect its
sufficiency with respect to other holders.
If a notice or communication is sent in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company sends a notice or communication to holders of
Convertible Subordinated Notes, it shall send a copy to the Trustee and each
Agent at the same time.
All notices or communications shall be in writing.
SECTION 10.03. Communication by Holders With Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other holders with respect to
their rights under this Indenture or the Convertible Subordinated Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and
substance reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 10.05) stating that, in the opinion
of such person, all conditions
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precedent and covenants, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and
substance reasonably satisfactory to the Trustee (which shall include
the statements set forth in Section 10.05) stating that, in the opinion
of such counsel, all such conditions precedent and covenants have been
complied with.
SECTION 10.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a)(4)) 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 statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such
person, he or she has made such examination or investigation as is
necessary to enable him or her to express an informed opinion as to
whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the
opinion of such person, such condition or covenant has been complied
with.
Any Officers' Certificate may be based, insofar as it relates to
legal matters, upon an Opinion of Counsel, unless such Officer knows that the
opinion with respect to the matters upon which his or her certificate may be
based as aforesaid is erroneous. Any Opinion of Counsel may be based, insofar as
it relates to factual matters, upon certificates, statements or opinions of, or
representations by an officer or officers of the Company, or other Persons or
firms deemed appropriate by such counsel, unless such counsel knows that the
certificates, statements or opinions or representations with respect to the
matters upon which his or her opinion may be based as aforesaid are erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may
be based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representation by an accountant (who may be an employee of the
Company), or firm of accountants, unless such Officer or counsel, as the case
may be, knows that the certificate or opinion or representation with respect to
the accounting matters upon which his or her certificate, statement or opinion
may be based as aforesaid is erroneous.
SECTION 10.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by, or a meeting of, holders of Convertible
Subordinated
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Notes. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07. Legal Holidays. A "Legal Holiday" is a Saturday, a Sunday
or a day on which banking institutions in the City of New York, the city in
which the Corporate Trust Office of the Trustee is located or the City of San
Jose, California are not required to be open, and a "Business Day" is any day
that is not a Legal Holiday. If a payment date is a Legal Holiday at a place of
payment, payment may be made at that place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening period. If
any date specified in this Indenture, including, without limitation, a
Redemption Date under Paragraph 5 of Convertible Subordinated Notes, is a Legal
Holiday, then such date shall be the next succeeding Business Day.
SECTION 10.08. No Recourse Against Others. No director, officer,
employee or stockholder, as such, of the Company from time to time shall have
any liability for any obligations of the Company under the Convertible
Subordinated Notes or this Indenture or for any claim based on, in respect of,
or by reason of such obligations or their creation. Each holder by accepting a
Convertible Subordinated Note waives and releases all such liability. This
waiver and release are part of the consideration for the Convertible
Subordinated Notes. Each of such directors, officers, employees and stockholders
is a third party beneficiary of this Section 10.08.
SECTION 10.09. Counterparts. This Indenture may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
SECTION 10.10. Other Provisions. The Company initially appoints the
Trustee as Paying Agent, Registrar and authenticating agent.
The reporting date for Section 7.06 is March 1 of each year. The
first reporting date is the March 1 following the issuance of Convertible
Subordinated Notes hereunder.
The Trustee shall always have, or shall be a Subsidiary of a
bank or bank holding company which has, a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
Amkor Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: General Counsel's Office
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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The Trustee's address is:
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
attention: Corporate Trust Department (Amkor Technology, Inc.
5.75% Convertible Notes due 2006)
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
SECTION 10.11. Governing Law. The internal laws of the State of New York
shall govern this Indenture and the Convertible Subordinated Notes, without
regard to the conflict of laws provisions thereof.
SECTION 10.12. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such other indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.13. Successors. All agreements of the Company in this
Indenture and the Convertible Subordinated Notes shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
SECTION 10.14. Severability. In case any provision in this Indenture or
in the Convertible Subordinated Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.15. Table of Contents, Headings, Etc. The Table of Contents,
Cross-Reference Table 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.
ARTICLE XI
SUBORDINATION
SECTION 11.01. Agreement to Subordinate. The Company agrees, and each
holder of Convertible Subordinated Notes by accepting a Convertible Subordinated
Note agrees, that the indebtedness evidenced by the Convertible Subordinated
Note is subordinated in right of payment, to the extent and in the manner
provided in this Article XI, to the prior payment in full in cash or payment
satisfactory to holders of Senior Debt of all Senior Debt (whether outstanding
on the Issue Date or thereafter created, incurred, assumed or guaranteed), and
that the subordination is for the benefit of the holders of Senior Debt. The
Company agrees, and each holder of Convertible Subordinated Notes by accepting a
Convertible Subordinated Note agrees, that the indebtedness evidenced by
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the Convertible Subordinated Note is pari passu in right of payment to the
Existing Convertible Subordinated Notes.
SECTION 11.02. Liquidation; Dissolution; Bankruptcy. Upon any
distribution to creditors of the Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property, in an assignment for the
benefit of creditors or any marshaling of the Company's assets and liabilities:
(1) holders of Senior Debt shall be entitled
to receive payment in full of all Obligations due in respect of such
Senior Debt (including interest and Liquidated Damages, if any, after
the commencement of any such proceeding at the rate specified in the
applicable Senior Debt) in cash or other payment satisfactory to the
holders of the Senior Debt before holders of Convertible Subordinated
Notes shall be entitled to receive any payment with respect to the
Convertible Subordinated Notes; and
(2) until all Senior Debt is paid in full in
cash or other payment satisfactory to the holders of the Senior Debt,
any distribution to which holders of Convertible Subordinated Notes
would be entitled but for this Article XI shall be made to holders of
Senior Debt, as their interests may appear.
SECTION 11.03. Default on Senior Debt and/or Designated Senior Debt. The
Company may not make any payment or distribution to the Trustee or any holder of
Convertible Subordinated Notes in respect of Obligations with respect to the
Convertible Subordinated Notes and may not acquire from the Trustee or any
holder of Convertible Subordinated Notes any Convertible Subordinated Notes
until all Senior Debt has been paid in full in cash or other payment
satisfactory to the holders of the Senior Debt if:
(i) a default in the payment of any
principal of, premium, if any, interest, rent or other Obligations in
respect of Senior Debt occurs and is continuing beyond any applicable
grace period in the agreement, indenture or other document governing
such Senior Debt; or
(ii) a default, other than a payment default,
on Designated Senior Debt occurs and is continuing that then permits
holders of such Designated Senior Debt to accelerate its maturity and
the Trustee receives a notice of the default (a "Payment Blockage
Notice") from a Person who may give it pursuant to Section 11.11 hereof.
If the Trustee receives any Payment Blockage Notice pursuant to
Section 11.03 (ii) hereof, no subsequent Payment Blockage Notice shall be
effective for purposes of such Section unless and until at least 365 days shall
have elapsed since the effectiveness of the immediately prior Payment Blockage
Notice. No nonpayment default that existed or was continuing on the date of
delivery of any Payment Blockage
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Notice to the Trustee shall be, or be made, the basis for a subsequent Payment
Blockage Notice.
The Company may and shall resume payments on and distributions
in respect of the Convertible Subordinated Notes and may acquire them upon the
earlier of:
(1) in the case of a payment default, upon
the date upon which the default is cured or waived or ceases to exist,
or
(2) in the case of a nonpayment default
referred to in Section 11.03(ii) hereof, the earlier of the date upon
which the default is cured or waived ceases to exist or 179 days after
notice is received if the maturity of such Designated Senior Debt has
not been accelerated,
if this Article XI otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
SECTION 11.04. Acceleration of Convertible Subordinated Notes. In the
event of the acceleration of the Convertible Subordinated Notes because of an
Event of Default, the Company may not make any payment or distribution to the
Trustee or any holder of Convertible Subordinated Notes in respect of
Obligations with respect to Convertible Subordinated Notes and may not acquire
or purchase from the Trustee or any holder of Convertible Subordinated Notes any
Convertible Subordinated Notes until all Senior Debt has been paid in full in
cash or other payment satisfactory to the holders of Senior Debt or such
acceleration is rescinded in accordance with the terms of this Indenture.
If payment of the Convertible Subordinated Notes is accelerated
because of an Event of Default, the Company or the Trustee shall promptly notify
holders of Senior Debt or trustee(s) of such Senior Debt of the acceleration.
SECTION 11.05. When Distribution Must Be Paid Over. In the event that
the Trustee, any holder of Convertible Subordinated Notes or any other Person
receives any payment or distributions of assets of the Company of any kind with
respect to the Convertible Subordinated Notes in contravention of any terms
contained in this Indenture, whether in cash, property or securities, including,
without limitation by way of set-off or otherwise, then such payment shall be
held by the recipient in trust for the benefit of holders of Senior Debt, and
shall be immediately paid over and delivered to the holders of Senior Debt or
the representative(s), to the extent necessary to make payment in full of all
Senior Debt remaining unpaid, after giving effect to any concurrent payment or
distribution or provision therefor, to or for the holders of Senior Debt;
provided that the foregoing shall apply to the Trustee only if the Trustee has
actual knowledge (as determined in accordance with Section 11.11) that such
payment or distribution is prohibited by this Indenture.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform only such obligations on the part of the Trustee as are
specifically set forth in
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this Article XI, and no implied covenants or obligations with respect to the
holders of Senior Debt shall be read into this Indenture against the Trustee.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt, and shall not be liable to any such holders if the Trustee shall
pay over or distribute to or on behalf of holders of Convertible Subordinated
Notes or the Company or any other Person money or assets to which any holders of
Senior Debt shall be entitled by virtue of this Article XI, except if such
payment is made as a result of the willful misconduct or gross negligence of the
Trustee.
SECTION 11.06. Notice by Company. The Company shall promptly notify the
Trustee of any facts known to the Company that would cause a payment of any
Obligations with respect to the Convertible Subordinated Notes or the purchase
of any Convertible Subordinated Notes by the Company to violate this Article XI,
but failure to give such notice shall not affect the subordination of the
Convertible Subordinated Notes to the Senior Debt as provided in this Article
XI.
SECTION 11.07. Subrogation. After all Senior Debt is paid in full and
until the Convertible Subordinated Notes are paid in full, holders of
Convertible Subordinated Notes shall be subrogated (equally and ratably with all
other indebtedness pari passu with the Convertible Subordinated Notes) to the
rights of holders of Senior Debt to receive distributions applicable to Senior
Debt to the extent that distributions otherwise payable to the holders of
Convertible Subordinated Notes have been applied to the payment of Senior Debt.
A distribution made under this Article XI to holders of Senior Debt that
otherwise would have been made to holders of Convertible Subordinated Notes is
not, as between the Company and holders of Convertible Subordinated Notes, a
payment by the Company on the Convertible Subordinated Notes.
SECTION 11.08. Relative Rights. This Article XI defines the relative
rights of holders of Convertible Subordinated Notes and holders of Senior Debt.
Nothing in this Indenture shall:
(1) impair, as between the Company and
holders of Convertible Subordinated Notes, the obligation of the
Company, which is absolute and unconditional, to pay principal of,
premium, if any, and interest (including Liquidated Damages) on the
Convertible Subordinated Notes in accordance with their terms;
(2) affect the relative rights of holders of
Convertible Subordinated Notes and creditors (other than with respect to
Senior Debt) of the Company, other than their rights in relation to
holders of Senior Debt; or
(3) prevent the Trustee or any holder of
Convertible Subordinated Notes from exercising its available remedies
upon a Default or Event of Default, subject to the rights of holders and
owners of Senior Debt to receive distributions and payments otherwise
payable to holders of Convertible Subordinated Notes.
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If the Company fails because of this Article XI to pay principal
of or interest (including Liquidated Damages) on a Convertible Subordinated Note
on the due date, the failure is still a Default or Event of Default.
SECTION 11.09. Subordination May Not Be Impaired by Company. No right of
any holder of Senior Debt to enforce the subordination of the indebtedness
evidenced by the Convertible Subordinated Notes shall be impaired by any act or
failure to act by the Company or any holder of Convertible Subordinated Notes or
by the failure of the Company or any such holder to comply with this Indenture.
SECTION 11.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Debt, the
distribution may be made and the notice given to their Representative.
Upon any payment or distribution of assets of the Company
referred to in this Article XI, the Trustee and the holders of Convertible
Subordinated Notes shall be entitled to rely upon any order or decree made by
any court of competent jurisdiction or upon any certificate of such
Representative or of the liquidating trustee or agent or other Person making any
distribution to the Trustee or to the holders of Convertible Subordinated Notes
for the purpose of ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article XI.
SECTION 11.11. Rights of Trustee and Paying Agent. Notwithstanding the
provisions of this Article XI or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts that
would prohibit the making of any payment or distribution by the Trustee (other
than pursuant to Section 11.04), and the Trustee may continue to make payments
on the Convertible Subordinated Notes, unless a Trust Officer shall have
received at least two Business Days prior to the date of such payment or
distribution written notice of facts that would cause such payment or
distribution with respect to the Convertible Subordinated Notes to violate this
Article XI. Only the Company or a Representative may give the notice.
Nothing in this Article XI shall impair the claims of, or
payments to, the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold
Senior Debt with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights.
SECTION 11.12. Authorization to Effect Subordination. Each holder of a
Convertible Subordinated Note by the holder's acceptance thereof authorizes and
directs the Trustee on the holder's behalf to take such action as may be
necessary or appropriate to effectuate the subordination as provided in this
Article XI, and appoints the Trustee to act as the holder's attorney-in-fact for
any and all such purposes. If the Trustee does not
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file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, the holders of any Senior Debt or
their Representatives are hereby authorized to file an appropriate claim for and
on behalf of the holders of the Convertible Subordinated Notes.
SECTION 11.13. Article Applicable to Paying Agents. In case at any time
any Paying Agent other than the Trustee shall have been appointed by the Company
and be then acting hereunder, the term "Trustee" as used in this Article XI
shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article XI in
addition to or in place of the Trustee; provided, however, that the second and
third paragraphs of Section 11.11 shall not apply to the Company or any
Subsidiary of the Company if it or such Subsidiary acts as Paying Agent.
SECTION 11.14. Senior Debt Entitled to Rely. The holders of Senior Debt
shall have the right to rely upon this Article XI, and no amendment or
modification of the provisions contained herein shall diminish the rights of
such holders unless such holders shall have agreed in writing thereto.
SECTION 11.15. Permitted Payments. Notwithstanding anything to the
contrary in this Article XI, the holders of Convertible Subordinated Notes may
receive and retain at any time on or prior to the Maturity Date (i) securities
that are subordinated to at least the same extent as the Convertible
Subordinated Notes to (a) Senior Debt and (b) any securities issued in exchange
for Senior Debt and (ii) payments and other distributions made from any trust
created pursuant to Section 8.01 hereof.
ARTICLE XII
CONVERSION OF CONVERTIBLE SUBORDINATED NOTES
SECTION 12.01. Right to Convert. Subject to and upon compliance with the
provisions of this Indenture, each holder of Convertible Subordinated Notes
shall have the right, at his or her option, at any time on or before the close
of business on the last trading day prior to the Maturity Date (except that, (a)
with respect to any Convertible Subordinated Note or portion thereof which is
called for redemption prior to such date, such right shall terminate, except as
provided in the fourth paragraph of Section 12.02, before the close of business
on the last trading day preceding the Redemption Date (unless the Company
defaults in payment of the Redemption Price in which case the conversion right
will terminate at the close of business on the trading day preceding the date
such default is cured) and (b) with respect to any Convertible Subordinated Note
or portion thereof subject to a duly completed election for repurchase, such
right shall terminate on or before the close of business on the Designated Event
Offer Termination Date (unless the Company defaults in the payment due upon
repurchase or such holder elects to withdraw the submission of such election to
repurchase)) to convert the principal
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amount of any Convertible Subordinated Note held by such holder, or any portion
of such principal amount which is $1,000 or an integral multiple thereof, into
that number of fully paid and non-assessable shares of Common Stock (as such
shares shall then be constituted) obtained by dividing the principal amount of
the Convertible Subordinated Note or portion thereof to be converted by the
Conversion Price in effect at such time, by surrender of the Convertible
Subordinated Note so to be converted in whole or in part in the manner provided
in Section 12.02. A holder of Convertible Subordinated Notes is not entitled to
any rights of a holder of Common Stock until such holder of Convertible
Subordinated Notes has converted his or her Convertible Subordinated Notes to
Common Stock, and only to the extent such Convertible Subordinated Notes are
deemed to have been converted to Common Stock under this Article XII.
SECTION 12.02. Exercise of Conversion Privilege; Issuance of Common
Stock on Conversion; No Adjustment for Interest or Dividends. To exercise, in
whole or in part, the conversion privilege with respect to any Convertible
Subordinated Note, the holder of such Convertible Subordinated Note shall
surrender such Convertible Subordinated Note, duly endorsed, at an office or
agency maintained by the Company pursuant to Section 4.04, accompanied by the
funds, if any, required by the penultimate paragraph of this Section 12.02, and
shall give written notice of conversion in the form provided on the Convertible
Subordinated Notes (or such other notice which is acceptable to the Company) to
the office or agency that the holder of Convertible Subordinated Notes elects to
convert such Convertible Subordinated Note or such portion thereof specified in
said notice. Such notice shall also state the name or names (with address or
addresses) in which the certificate or certificates for shares of Common Stock
which are issuable on such conversion shall be issued, and shall be accompanied
by transfer taxes, if required pursuant to Section 12.07. Each such Convertible
Subordinated Note surrendered for conversion shall, unless the shares issuable
on conversion are to be issued in the same name as the registration of such
Convertible Subordinated Note, be duly endorsed by, or be accompanied by
instruments of transfer in form satisfactory to the Company duly executed by,
the holder of Convertible Subordinated Notes or his or her duly authorized
attorney.
As promptly as practicable after satisfaction of the
requirements for conversion set forth above, the Company shall issue and shall
deliver to such holder at the office or agency maintained by the Company for
such purpose pursuant to Section 4.04, a certificate or certificates for the
number of full shares of Common Stock issuable upon the conversion of such
Convertible Subordinated Note or portion thereof in accordance with the
provisions of this Article XII and a check or cash in respect of any fractional
interest in respect of a share of Common Stock arising upon such conversion, as
provided in Section 12.03 (which payment, if any, shall be paid no later than
five Business Days after satisfaction of the requirements for conversion set
forth above). Certificates representing shares of Common Stock will not be
issued or delivered unless all taxes and duties, if any, payable by the holder
have been paid. In case any Convertible Subordinated Note of a denomination of
an integral multiple greater than $1,000 is surrendered for partial conversion,
and subject to Section 2.02, the Company
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shall execute, and the Trustee shall authenticate and deliver to the holder of
the Convertible Subordinated Note so surrendered, without charge to him or her,
a new Convertible Subordinated Note or Convertible Subordinated Notes in
authorized denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Convertible Subordinated Note.
Each conversion shall be deemed to have been effected as to any
such Convertible Subordinated Note (or portion thereof) on the date on which the
requirements set forth above in this Section 12.02 have been satisfied as to
such Convertible Subordinated Note (or portion thereof), and the Person in whose
name any certificate or certificates for shares of Common Stock are issuable
upon such conversion shall be deemed to have become on said date the holder of
record of the shares represented thereby; provided, however, that any such
surrender on any date when the Company's stock transfer books are closed shall
constitute the Person in whose name the certificates are to be issued as the
record holder thereof for all purposes on the next succeeding day on which such
stock transfer books are open, but such conversion shall be at the Conversion
Price in effect on the date upon which such Convertible Subordinated Note is
surrendered.
Any Convertible Subordinated Note or portion thereof surrendered
for conversion during the period from the close of business on the Regular
Record Date for any interest payment through the close of business on the last
trading day immediately preceding such Interest Payment Date shall (unless such
Convertible Subordinated Note or portion thereof being converted has been called
for redemption pursuant to a notice of redemption mailed by the Company to the
holders in accordance with the provisions of Section 3.04) be accompanied by
payment, in funds acceptable to the Company, of an amount equal to the interest
and Liquidated Damages, if any, otherwise payable on such Interest Payment Date
on the principal amount being converted; provided however, that no such payment
need be made if there exists at the time of conversion a default in the payment
of interest or Liquidated Damages, if applicable, on the Convertible
Subordinated Notes. An amount equal to such payment shall be paid by the Company
on such Interest Payment Date to the holder of such Convertible Subordinated
Note at the close of business on such Regular Record Date; provided, however,
that if the Company defaults in the payment of interest or Liquidated Damages,
if applicable, on such Interest Payment Date, such amount shall be paid to the
Person who made such required payment. Except as provided above in this Section
12.02, no adjustment shall be made for interest and Liquidated Damages, if any,
accrued on any Convertible Subordinated Note converted or for dividends on any
shares issued upon the conversion of such Convertible Subordinated Note as
provided in this Article XII.
SECTION 12.03. Cash Payments in Lieu of Fractional Shares. No fractional
shares of Common Stock or scrip representing fractional shares shall be issued
upon conversion of Convertible Subordinated Notes. If more than one Convertible
Subordinated Note shall be surrendered for conversion at one time by the same
holder, the number of full shares which shall be issuable upon conversion shall
be computed on the basis of the aggregate principal amount of the Convertible
Subordinated Notes (or
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specified portions thereof to the extent permitted hereby) so surrendered for
conversion. If any fractional share of stock otherwise would be issuable upon
the conversion of any Convertible Subordinated Note or Convertible Subordinated
Notes, the Company shall make an adjustment therefor in cash based upon the
Current Market Price of the Common Stock on the last trading day prior to the
date of conversion.
SECTION 12.04. Conversion Price. The conversion price shall be as
specified in the form of Convertible Subordinated Note attached as Exhibit A
hereto, subject to adjustment as provided in this Article XII.
SECTION 12.05. Adjustment of Conversion Price. The Conversion Price
shall be adjusted from time to time by the Company as follows:
(a) If the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of
Common Stock, the Conversion Price in effect at the opening of business
on the date following the Record Date (as defined in Section 12.05(g))
fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business on
the Record Date fixed for such determination and the denominator shall
be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such reduction to
become effective immediately after the opening of business on the day
following the Record Date. If any dividend or distribution of the type
described in this Section 12.05(a) is declared but not so paid or made,
the Conversion Price shall again be adjusted to the Conversion Price
which would then be in effect if such dividend or distribution had not
been declared.
(b) If the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately reduced, and, conversely, if the outstanding shares of
Common Stock shall be combined into a smaller number of shares of Common
Stock, the Conversion Price in effect at the opening of business on the
day following the day upon which such combination becomes effective
shall be proportionately increased, such reduction or increase, as the
case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.
(c) If the Company shall issue rights or warrants to all or
substantially all holders of its outstanding shares of Common Stock
entitling them to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price (as defined in
Section 12.05(g)) on the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants, the
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Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect at the
opening of business on the date after such Record Date by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the Record Date plus the number
of shares which the aggregate offering price of the total number of
shares so offered would purchase at such Current Market Price, and of
which the denominator shall be the number of shares of Common Stock
outstanding on the close of business on the Record Date plus the total
number of additional shares of Common Stock so offered for subscription
or purchase. Such adjustment shall become effective immediately after
the opening of business on the day following the Record Date fixed for
determination of stockholders entitled to receive such rights or
warrants. To the extent that shares of Common Stock are not delivered
pursuant to such rights or warrants, upon the expiration or termination
of such rights or warrants the Conversion Price shall be readjusted to
be the Conversion Price which would then be in effect had the
adjustments made upon the issuance of such rights or warrants been made
on the basis of delivery of only the number of shares of Common Stock
actually delivered. If such rights or warrants are not so issued, the
Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such Record Date fixed for the
determination of stockholders entitled to receive such rights or
warrants had not been fixed. In determining whether any rights or
warrants entitle the holders to subscribe for or purchase shares of
Common Stock at less than such Current Market Price, and in determining
the aggregate offering price of such shares of Common Stock, there shall
be taken into account any consideration received for such rights or
warrants, with the value of such consideration, if other than cash, to
be determined by the Board of Directors.
(d) If the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock shares of any class of capital stock
of the Company (other than any dividends or distributions to which
Section 12.05(a) applies) or evidences of its indebtedness, cash or
other assets (including securities, but excluding (i) any rights or
warrants of a type referred to in Section 12.05(c) and (ii) dividends
and distributions paid exclusively in cash) (the foregoing hereinafter
in this Section 12.05(d) called the "Securities"), then, in each such
case, the Conversion Price shall be reduced so that the same shall be
equal to the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the Record Date (as
defined in Section 12.05(g)) with respect to such distribution by a
fraction of which the numerator shall be the Current Market Price
(determined as provided in Section 12.05(g)) on such date less the fair
market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors) on such date of the portion of the Securities so
distributed applicable to one share of Common Stock and the denominator
shall be such Current Market Price, such reduction to become effective
immediately prior to the opening of business on the
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day following the Record Date; provided, however, that in the event the
then fair market value (as so determined) of the portion of the
Securities so distributed applicable to one share of Common Stock is
equal to or greater than the Current Market Price on the Record Date, in
lieu of the foregoing adjustment, adequate provision shall be made so
that each holder of Convertible Subordinated Notes shall have the right
to receive upon conversion of a Convertible Subordinated Note (or any
portion thereof) the amount of Securities such holder would have
received had such holder converted such Convertible Subordinated Note
(or portion thereof) immediately prior to such Record Date. If such
dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be
in effect if such dividend or distribution had not been declared. If the
Board of Directors determines the fair market value of any distribution
for purposes of this Section 12.05(d) by reference to the actual or when
issued trading market for any securities comprising all or part of such
distribution, it must in doing so consider the prices in such market
over the same period used in computing the Current Market Price pursuant
to Section 12.05(g) to the extent possible.
Notwithstanding any other provision of this Section 12.05(d) to
the contrary, rights, warrants, evidences of indebtedness, other
securities, cash or other assets (including, without limitation, any
rights distributed pursuant to any stockholder rights plan) shall be
deemed not to have been distributed for purposes of this Section
12.05(d) if the Company makes proper provision so that each holder of
Convertible Subordinated Notes who converts a Convertible Subordinated
Note (or any portion thereof) after the Record Date fixed for
determination of stockholders entitled to receive such distribution
shall be entitled to receive upon such conversion, in addition to the
shares of Common Stock issuable upon such conversion, the amount and
kind of such distributions that such holder would have been entitled to
receive if such holder had, immediately prior to such determination
date, converted such Convertible Subordinated Note into Common Stock.
Rights or warrants distributed by the Company to all holders of
Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's capital stock (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 shares of Common Stock; (ii) are not exercisable;
and (iii) are also issued in respect of future issuances of Common
Stock, shall be deemed not to have been distributed for purposes of this
Section 12.05(d) (and no adjustment to the Conversion Price under this
Section 12.05(d) shall 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 to the Conversion
Price under this Section 12.05(d) shall be made. If any such rights or
warrants, including any such existing rights or warrants distributed
prior to the Issue Date, are subject to subsequent events,
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upon the occurrence of each of which such rights or warrants shall
become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the occurrence of each such event
shall be deemed to be such date of issuance and Record Date with respect
to new rights or warrants (and a termination or expiration of the
existing rights or warrants without exercise by the holder thereof). In
addition, in the event of any distribution (or deemed distribution) of
rights or warrants, or any Trigger Event with respect thereto, that was
counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Price under this Section 12.05 was made,
(1) in the case of any such rights or warrants which shall all have been
redeemed or repurchased without exercise by any holders thereof, the
Conversion Price 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
share redemption or repurchase price received by a holder or holders of
Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of
Common Stock as of the date of such redemption or repurchase, and (2) in
the case of such rights or warrants which shall have expired or been
terminated without exercise by any holders thereof, the Conversion Price
shall be readjusted as if such rights and warrants had not been issued.
For purposes of this Section 12.05(d) and Sections 12.05(a) and
(c), any dividend or distribution to which this Section 12.05(d) is
applicable that also includes shares of Common Stock, or rights or
warrants to subscribe for or purchase shares of Common Stock to which
Section 12.05(c) applies (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets,
shares of capital stock, rights or warrants other than such shares of
Common Stock or rights or warrants to which Section 12.05(c) applies
(and any Conversion Price reduction required by this Section 12.05(d)
with respect to such dividend or distribution shall then be made)
immediately followed by (2) a dividend or distribution of such shares of
Common Stock or such rights or warrants (and any further Conversion
Price reduction required by Sections 12.05(a) and (c) with respect to
such dividend or distribution shall then be made, except that (A) the
Record Date of such dividend or distribution shall be substituted as
"the Record Date fixed for the determination of stockholders entitled to
receive such dividend or other distribution", "Record Date fixed for
such determination" and "Record Date" within the meaning of Section
12.05(a) and as "the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants", "the Record
Date fixed for the determination of the stockholders entitled to receive
such rights or warrants" and "such Record Date" within the meaning of
Section 12.05(c) and (B) any shares of Common Stock included in such
dividend or distribution shall not be deemed "outstanding at the close
of business on the date fixed for such determination" within the meaning
of Section 12.05(a)).
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(e) If the Company shall, by dividend or otherwise, distribute
cash to all holders of its Common Stock (excluding any cash that is
distributed upon a merger or consolidation to which Section 12.06
applies or as part of a distribution referred to in Section 12.05(d)) in
an aggregate amount that, combined together with (1) the aggregate
amount of any other such all-cash distributions to all holders of its
Common Stock within the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to this
Section 12.05(e) has been made, and (2) the aggregate of any cash plus
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors) of consideration payable in respect of any tender
offer by the Company or any of its subsidiaries for all or any portion
of the Common Stock (as contemplated in Section 12.05(f) hereof)
concluded within the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to Section
12.05(f) has been made, exceeds 15% of the product of the Current Market
Price (determined as provided in Section 12.05(g)) on the Record Date
with respect to such distribution times the number of shares of Common
Stock outstanding on such date, then, and in each such case, immediately
after the close of business on such date, the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to the close of
business on such Record Date by a fraction (i) the numerator of which
shall be equal to the Current Market Price on the Record Date less an
amount equal to the quotient of (x) the excess of such combined amount
over such 15% and (y) the number of shares of Common Stock outstanding
on the Record Date and (ii) the denominator of which shall be equal to
the Current Market Price on such Record Date; provided, however, that if
the portion of the cash so distributed applicable to one share of Common
Stock is equal to or greater than the Current Market Price of the Common
Stock on the Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder of Convertible Subordinated
Notes shall have the right to receive upon conversion of a Convertible
Subordinated Note (or any portion thereof) the amount of cash such
holder would have received had such holder converted such Convertible
Subordinated Note (or portion thereof) immediately prior to such Record
Date. If such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such dividend or distribution had not
been declared. Any cash distribution to all holders of Common Stock as
to which the Company makes the election permitted by Section 12.05(m)
and as to which the Company has complied with the requirements of such
Section shall be treated as not having been made for all purposes of
this Section 12.05(e).
(f) If a tender offer made by the Company or any of its
subsidiaries for all or any portion of the Common Stock expires and such
tender offer (as amended upon the expiration thereof) requires the
payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of
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Purchased Shares (as defined below)) of an aggregate consideration
having a fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a resolution of
the Board of Directors) that, combined together with (1) the aggregate
of the cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors), as of the expiration of such
tender offer, of consideration payable in respect of any other tender
offers, by the Company or any of its subsidiaries for all or any portion
of the Common Stock, expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no adjustment
pursuant to this Section 12.05(f) has been made and (2) the aggregate
amount of any such all-cash distributions to all holders of the Common
Stock (as contemplated in Section 12.05(e) hereof) within 12 months
preceding the expiration of such tender offer and in respect of which no
adjustment pursuant to Section 12.05(e) has been made, exceeds 15% of
the product of the Current Market Price (determined as provided in
Section 12.05(g)) as of the last time (the "Expiration Time") tenders
could have been made pursuant to such tender offer (as it may be
amended) times the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time, then, and in
each such case, immediately prior to the opening of business on the day
after the date of the Expiration Time, the Conversion Price shall be
adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to close of
business on the date of the Expiration Time by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time multiplied by the
Current Market Price of the Common Stock on the trading day next
succeeding the Expiration Time and the denominator shall be the sum of
(x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender offer) of all shares
validly tendered and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) on the Expiration
Time and the Current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time, such reduction (if any) to become
effective immediately prior to the opening of business on the day
following the Expiration Time. If the Company is obligated to purchase
shares pursuant to any such tender offer, but the Company is permanently
prevented by applicable law from effecting any such purchases or all
such purchases are rescinded, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such tender offer had not been made. If the application of this Section
12.05(f) to any tender offer would result in an increase in the
Conversion Price, no adjustment shall be made for such tender offer
under this Section 12.05(f).
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(g) For purposes of this Section 12.05, the following terms
shall have the meaning indicated:
(1) "Closing Price" with respect to any
securities on any day means the closing price on such day or, if no such
sale takes place on such day, the average of the reported high and low
prices on such day, in each case on the Nasdaq National Market or New
York Stock Exchange, as applicable, or, if such security is not listed
or admitted to trading on such national market or exchange, on the
principal national securities exchange or quotation system on which such
security is quoted or listed or admitted to trading, or, if not quoted
or listed or admitted to trading on any national securities exchange or
quotation system, the average of the high and low prices of such
security on the over-the-counter market on the day in question as
reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available, in such
manner as furnished by any New York Stock Exchange member firm selected
from time to time by the Board of Directors for that purpose, or a price
determined in good faith by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of
Directors.
(2) "Current Market Price" means the average
of the daily Closing Prices per share of Common Stock for the 10
consecutive trading days immediately prior to the date in question;
provided, however, that (1) if the "ex" date (as hereinafter defined)
for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Price
pursuant to Sections 12.05(a), (b), (c), (d), (e) or (f) occurs during
such 10 consecutive trading days, the Closing Price for each trading day
prior to the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the same fraction by which the
Conversion Price is so required to be adjusted as a result of such other
event, (2) if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to
the Conversion Price pursuant to Section 12.05(a), (b), (c), (d), (e) or
(f) occurs on or after the "ex" date for the issuance or distribution
requiring such computation and prior to the day in question, the Closing
Price for each trading day on and after the "ex" date for such other
event shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Price is so required
to be adjusted as a result of such other event, and (3) if the "ex" date
for the issuance or distribution requiring such computation is prior to
the day in question, after taking into account any adjustment required
pursuant to clause (1) or (2) of this proviso, the Closing Price for
each trading day on or after such "ex" date shall be adjusted by adding
thereto the amount of any cash and the fair market value (as determined
by the Board of Directors in a manner consistent with any determination
of such value for purposes of Sections 12.05(d) or (f), whose
determination shall be conclusive and described in a resolution of the
Board of Directors) of the evidences of indebtedness, shares of
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capital stock or assets being distributed applicable to one share of
Common Stock as of the close of business on the day before such "ex"
date. For purposes of any computation under Section 12.05(f), the
Current Market Price on any date shall be deemed to be the average of
the daily Closing Prices per share of Common Stock for such day and the
next two succeeding trading days; provided, however, that if the "ex"
date for any event (other than the tender offer requiring such
computation) that requires an adjustment to the Conversion Price
pursuant to Section 12.05(a), (b), (c), (d), (e) or (f) occurs on or
after the Expiration Time for the tender or exchange offer requiring
such computation and prior to the day in question, the Closing Price for
each trading day on and after the "ex" date for such other event shall
be adjusted by multiplying such Closing Price by the reciprocal of the
fraction by which the Conversion Price is so required to be adjusted as
a result of such other event. For purposes of this paragraph, the term
"ex" date, (1) when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades regular way on the
relevant exchange or in the relevant market from which the Closing Price
was obtained without the right to receive such issuance or distribution,
(2) when used with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the Common Stock trades
regular way on such exchange or in such market after the time at which
such subdivision or combination becomes effective, and (3) when used
with respect to any tender or exchange offer means the first date on
which the Common Stock trades regular way on such exchange or in such
market after the Expiration Time of such offer. Notwithstanding the
foregoing, whenever successive adjustments to the Conversion Price are
called for pursuant to this Section 12.05, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 12.05 and to avoid unjust or
inequitable results as determined in good faith by the Board of
Directors.
(3) "fair market value" shall mean the
amount which a willing buyer would pay a willing seller in an arm's
length transaction.
(4) "Record Date" shall mean, with respect
to any dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash, securities
or other property or in which the Common Stock (or other applicable
security) is exchanged 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).
(5) "trading day" shall mean (x) if the
applicable security is listed or admitted for trading on the New York
Stock Exchange or another national securities exchange, a day on which
the New York Stock Exchange or another national securities exchange is
open for business or (y) if the applicable security is quoted on the
Nasdaq National Market, a day on which
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trades may be made thereon or (z) if the applicable security is not so
listed, admitted for trading or quoted, any day other than a Saturday or
Sunday or a day on which banking institutions in the State of New York
are authorized or obligated by law or executive order to close.
(h) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 12.05(a), (b), (c),
(d), (e) and (f), as the Board of Directors considers to be advisable to
avoid or diminish any income tax to holders of Common Stock or rights to
purchase Common Stock resulting from any dividend or distribution of
stock (or rights to acquire stock) or from any event treated as such for
income tax purposes.
The Company from time to time may, to the extent permitted by
law, reduce the Conversion Price by any amount for any period of at
least 20 days, if the Board of Directors has made a determination that
such reduction would be in the Company's best interests, which
determination shall be conclusive and described in a resolution of the
Board of Directors. The reduction in Conversion Price shall be
irrevocable during this period. Whenever the Conversion Price is reduced
pursuant to the preceding sentence, the Company shall mail to the
holders of Convertible Subordinated Notes at his or her last address
appearing on the Register of holders maintained for that purpose a
notice of the reduction at least 15 days prior to the date the reduced
Conversion Price takes effect, and such notice shall state the reduced
Conversion Price and the period during which it will be in effect.
(i) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least
1% in such price; provided, however, that any adjustments which by
reason of this Section 12.05(i) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article XII shall be made by the Company and
shall be made to the nearest cent or to the nearest one hundredth of a
share, as the case may be.
No adjustment need be made for a change in the par value or no
par value of the Common Stock.
(j) Whenever the Conversion Price 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 Price after such adjustment and setting forth a
brief statement of the facts requiring such adjustment. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Price setting forth the adjusted Conversion
Price and the date on which each adjustment becomes effective and shall
mail such notice of such adjustment of the Conversion Price to each
holder of Convertible Subordinated Notes at his or her last address
appearing on the Register of holders maintained for that purpose within
20 days of the
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effective date of such adjustment. Failure to deliver such notice shall
not affect the legality or validity of any such adjustment.
(k) In any case in which this Section 12.05 provides that an
adjustment shall become effective immediately after a Record Date for an
event, the Company may defer until the occurrence of such event issuing
to the holder of any Convertible Subordinated Note converted after such
Record Date and before the occurrence of such event the additional
shares of Common Stock issuable upon such conversion by reason of the
adjustment required by such event over and above the Common Stock
issuable upon such conversion before giving effect to such adjustment.
(l) For purposes of this Section 12.05, the number of shares of
Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect
of scrip certificates issued in lieu of fractions of shares of Common
Stock. The Company shall not pay any dividend or make any distribution
on shares of Common Stock held in the treasury of the Company.
(m) In lieu of making any adjustment to the Conversion Price
pursuant to Section 12.05(e), the Company may elect to reserve an amount
of cash for distribution to the holders of Convertible Subordinated
Notes upon the conversion of the Convertible Subordinated Notes so that
any such holder converting Convertible Subordinated Notes will receive
upon such conversion, in addition to the shares of Common Stock and
other items to which such holder is entitled, the full amount of cash
which such holder would have received if such holder had, immediately
prior to the Record Date for such distribution of cash, converted its
Convertible Subordinated Notes into Common Stock, together with any
interest accrued with respect to such amount, in accordance with this
Section 12.05(m). The Company may make such election by providing an
Officers' Certificate to the Trustee to such effect on or prior to the
payment date for any such distribution and depositing with the Trustee
on or prior to such date an amount of cash equal to the aggregate amount
that the holders of Convertible Subordinated Notes would have received
if such holders had, immediately prior to the Record Date for such
distribution, converted all of the Convertible Subordinated Notes into
Common Stock. Any such funds so deposited by the Company with the
Trustee shall be invested by the Trustee in U.S. Government Obligations
with a maturity not more than three (3) months from the date of
issuance. Upon conversion of Convertible Subordinated Notes by a holder
thereof, such holder shall be entitled to receive, in addition to the
Common Stock issuable upon conversion, an amount of cash equal to the
amount such holder would have received if such holder had, immediately
prior to the Record Date for such distribution, converted its
Convertible Subordinated Note into Common Stock, along with such
holder's pro-rata share of any accrued interest earned as a consequence
of the investment of such funds. Promptly after making an election
pursuant to this Section 12.05(m), the Company shall give or shall cause
to be given notice to all holders
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of Convertible Subordinated Notes of such election, which notice shall
state the amount of cash per $1,000 principal amount of Convertible
Subordinated Notes such holders shall be entitled to receive (excluding
interest) upon conversion of the Convertible Subordinated Notes as a
consequence of the Company having made such election.
SECTION 12.06. Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur: (i) any reclassification or change
of the outstanding shares of Common Stock (other than a change in par value, or
from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation, merger or
combination of the Company with another corporation as a result of which holders
of Common Stock shall be entitled to receive stock, securities or other property
or assets (including cash) with respect to or in exchange for such Common Stock,
or (iii) any sale or conveyance of the properties and assets of the Company as
an entirety or substantially as an entirety to any other corporation as a result
of which holders of Common Stock shall be entitled to receive stock, securities
or other property or assets (including cash) with respect to or in exchange for
such Common Stock, then the Company or the successor or purchasing corporation,
as the case may be, shall execute with the Trustee a supplemental indenture
(which shall comply with the TIA as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required to so
comply) providing that the Convertible Subordinated Notes shall be convertible
into the kind and amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance by a holder of a number
of shares of Common Stock issuable upon conversion of the Convertible
Subordinated Notes (assuming, for such purposes, a sufficient number of
authorized shares of Common Stock available to convert all such Convertible
Subordinated Notes) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance assuming such holder of
Common Stock did not exercise his or her rights of election, if any, as to the
kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance (provided that, if
the kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance is not the same
for each share of Common Stock in respect of which such rights of election have
not been exercised ("non-electing share"), then, for the purposes of this
Section 12.06, the kind and amount of securities, cash or other property
receivable upon such consolidation, merger, statutory exchange, sale or
conveyance for each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
XII. If, in the case of any such reclassification, change, consolidation,
merger, combination, sale or conveyance, the stock or other securities and
assets receivable thereupon by a holder of shares of Common Stock includes
shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, consolidation, merger,
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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 Convertible Subordinated Notes as
the Board of Directors shall reasonably consider necessary by reason of the
foregoing.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each holder of Convertible Subordinated
Notes at his or her address appearing on the Register of holders for that
purpose within 20 days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.
The above provisions of this Section 12.06 shall similarly apply
to successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 12.06 applies to any event or occurrence,
Section 12.05 shall not apply.
SECTION 12.07. Taxes on Shares Issued. The issue of stock certificates
on conversions of Convertible Subordinated Notes shall be made without charge to
the converting holder for any tax in respect of the issue thereof. The Company
shall not, however, be required to pay any tax which may be payable in respect
of any transfer involved in the issue and delivery of stock in any name other
than that of the holder of any Convertible Subordinated Note converted, and the
Company shall not be required to issue or deliver any such stock certificate
unless and until the Person or Persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
SECTION 12.08. Reservation of Shares; Shares to Be Fully Paid; Listing
of Common Stock. The Company shall provide, free from preemptive rights, out of
its authorized but unissued shares or shares held in treasury, sufficient shares
to provide for the conversion of the Convertible Subordinated Notes from time to
time as such Convertible Subordinated Notes are presented for conversion.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the Convertible Subordinated Notes, the
Company shall take all corporate action which may, in the opinion of its
counsel, be necessary in order that the Company may validly and legally issue
shares of such Common Stock at such adjusted Conversion Price; provided,
however, that no shares of Common Stock shall be required to be issued at a
Conversion Price less than the par value of such Common Stock.
The Company covenants that all shares of Common Stock issued
upon conversion of Convertible Subordinated Notes will be fully paid and
non-assessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.
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The Company further covenants that as long as the Common Stock
is quoted on the Nasdaq National Market, or its successor, the Company shall
cause all Common Stock issuable upon conversion of the Convertible Subordinated
Notes to be eligible for such quotation in accordance with, and at the times
required under, the requirements of such market, and if at any time the Common
Stock becomes listed on the New York Stock Exchange or any other national
securities exchange, the Company shall cause all Common Stock issuable upon
conversion of the Convertible Subordinated Notes to be so listed and kept
listed.
SECTION 12.09. Responsibility of Trustee. The Trustee shall not at any
time be under any duty of responsibility to any holders of Convertible
Subordinated Notes to determine whether any facts exist which may require any
adjustment of the Conversion Price, 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 shall not be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common Stock, or of
any securities or property, which may at any time be issued or delivered upon
the conversion of any Convertible Subordinated Note; and the Trustee makes no
representations with respect thereto. Subject to the provisions of Section 7.01,
the Trustee shall not be responsible for any failure of the Company to issue,
transfer or deliver any shares of Common Stock or stock certificates or other
securities or property or cash upon the surrender of any Convertible
Subordinated Note for the purpose of conversion or to comply with any of the
duties, responsibilities or covenants of the Company contained in this Article
XII. Without limiting the generality of the foregoing, the Trustee shall not
have any responsibility to determine the correctness of any provisions contained
in any supplemental indenture entered into pursuant to Section 12.06 relating
either to the kind or amount of shares of stock or securities or property
(including cash) receivable by holders of Convertible Subordinated Notes upon
the conversion of their Convertible Subordinated Notes after any event referred
to in such Section 12.06 or to any adjustment to be made with respect thereto,
but, subject to the provisions of Section 7.01, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate and Opinion of Counsel (which the
Company shall be obligated to file with the Trustee prior to the execution of
any such supplemental indenture) with respect thereto.
SECTION 12.10. Notice to Holders Prior to Certain Actions. If
(a) the Company declares a dividend (or any other distribution)
on its Common Stock (other than in cash out of retained earnings or
other than a dividend that results in an adjustment in the Conversion
Price pursuant to Section 12.05 as to which the Company has made an
election in accordance with Section 12.05(m)); or
(b) the Company authorizes the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any
share of any class of Common Stock or any other rights or warrants; or
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(c) there is any reclassification of the Common Stock (other
than a subdivision or combination of outstanding Common Stock, 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 stockholders of the
Company is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or
(d) there is any voluntary or involuntary dissolution,
liquidation or winding-up of the Company;
then the Company shall cause to be filed with the Trustee and to be mailed to
each holder of Convertible Subordinated Notes at his or her address appearing on
the Register maintained for that purpose as promptly as possible but in any
event at least 15 days prior to the applicable date hereinafter specified, 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 Common Stock 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 Common Stock of record
shall be entitled to exchange their Common Stock 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 12.11. Restriction on Common Stock Issuable Upon Conversion.
(a) Shares of Common Stock to be issued upon conversion of
Convertible Subordinated Notes prior to the effectiveness of a Shelf
Registration Statement shall be physically delivered in certificated form to the
holders converting such Securities and the certificate representing such shares
of Common Stock shall bear the Restricted Common Stock Legend unless removed in
accordance with section 12.11(c).
(b) If (i) shares of Common Stock to be issued upon conversion
of a Convertible Subordinated Note prior to the effectiveness of a Shelf
Registration Statement are to be registered in a name other than that of the
holder of such Convertible Subordinated Note or (ii) shares of Common Stock
represented by a certificate bearing the Restricted Common Stock Legend are
transferred subsequently by such holder, then, unless the Shelf Registration
Statement has become effective and such shares are being transferred pursuant to
the Shelf Registration Statement, the holder must deliver to the transfer agent
for the Common Stock a certificate in substantially the form of Exhibit E as to
compliance with the restrictions on transfer applicable to such shares of Common
Stock and neither the transfer agent nor the registrar for the Common Stock
shall be required to register any transfer of such Common Stock not so
accompanied by a properly completed certificate.
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(c) Except in connection with a Shelf Registration Statement, if
certificates representing shares of Common Stock are issued upon the
registration of transfer, exchange or replacement of any other certificate
representing shares of Common Stock bearing the Restricted Common Stock Legend,
or if a request is made to remove such Restricted Common Stock Legend from
certificates representing shares of Common Stock, the certificates so issued
shall bear the Restricted Common Stock Legend, or the Restricted Common Stock
Legend shall not be removed, as the case may be, unless there is delivered to
the Company such satisfactory evidence, which, in the case of a transfer made
pursuant to Rule 144 under the Securities Act, may include an opinion of counsel
pursuant to the laws in the State of New York, as may be reasonably required by
the Company, that neither the legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A, Rule 144 or Regulation S under the Securities Act or that such
shares of Common Stock are securities that are not "restricted" within the
meaning of Rule 144 under the Securities Act. Upon provision to the Company of
such reasonably satisfactory evidence, the Company shall cause the transfer
agent for the Common Stock to countersign and deliver certificates representing
shares of Common Stock that do not bear the legend.
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed and attested, all as of the date first above written, signifying
their agreements contained in this Indenture.
AMKOR TECHNOLOGY, INC.
By: /s/ Xxxxxxx Xxxxx
-----------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxxx X. Ring
-----------------------------------
Name: Xxxxxxx X. Ring
Title: Assistant Vice President
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EXHIBIT A
(Face of Security)
[Global Securities Legend]
[The following legend shall appear on the face of each Global
Security:
THIS CONVERTIBLE SUBORDINATED NOTE IS A GLOBAL SECURITY WITHIN
THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE
NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY
THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
CONVERTIBLE SUBORDINATED NOTE FOR ALL PURPOSES.]
[The following legend shall appear on the face of each Global
Security for which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"),
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 THE AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OR 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.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
REGISTERED CONVERTIBLE SUBORDINATED NOTES IN DEFINITIVE REGISTERED FORM IN THE
LIMITED CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OR SUCH SUCCESSOR DEPOSITARY.]
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE
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HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
COMPANY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
(X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUE HEREOF (OR ANY PREDECESSOR
SECURITY HEREOF) OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE
MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING
THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN
(1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT
TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION
(AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (4) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION AND THAT, PRIOR TO
SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER MAY BE
OBTAINED FROM THE TRUSTEE), (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT
OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS
AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER OR (2) AN INSTITUTIONAL ACCREDITED INVESTOR AND THAT IT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3)
NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER)
REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS
SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT AS
PERMITTED BY THE SECURITIES ACT.
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No. ____ $ ________
CUSIP ________
AMKOR TECHNOLOGY, INC.
5.75% CONVERTIBLE SUBORDINATED NOTE DUE 2006
promises to pay to _____________________________ or registered assigns, the
principal sum of _______________ on June 1, 2006
Interest Payment Dates: June 1 and December 1, commencing December 1, 2001
Regular Record Dates: May 15 and November 15
Dated:
AMKOR TECHNOLOGY, INC.
By:
--------------------------------
Name:
Title:
This is one of the Convertible Subordinated
Notes described in the within-mentioned
Indenture:
STATE STREET BANK AND TRUST
COMPANY,
as Trustee
By:
-----------------------------
Authorized Signatory
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(Back of Security)
AMKOR TECHNOLOGY, INC.
5.75% CONVERTIBLE SUBORDINATED NOTE DUE 2006
1. INTEREST. Amkor Technology, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Convertible
Subordinated Note at the rate per annum shown above. The Company will pay
interest semi-annually in arrears on June 1 and December 1 of each year,
beginning December 1, 2001. Interest on the Convertible Subordinated Notes will
accrue from the most recent Interest Payment Date to which interest has been
paid or, if no interest has been paid, from May 25, 2001. Interest (including
any Liquidated Damages) will be computed on the basis of a 360-day year composed
of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest (and
Liquidated Damages, if any) on the Convertible Subordinated Notes (except
defaulted interest) to the Person in whose name each Convertible Subordinated
Note is registered at the close of business on the May 15 or November 15
immediately preceding the relevant Interest Payment Date (each a "Regular Record
Date") (other than with respect to a Convertible Subordinated Note or portion
thereof called for redemption on a Redemption Date, or repurchased in connection
with a Designated Event on a repurchase date, during the period from the close
of business on a Regular Record Date to (but excluding) the next succeeding
Interest Payment Date, in which case accrued interest (and Liquidated Damages,
if any) shall be payable (unless such Convertible Subordinated Note or portion
thereof is converted) to the holder of the Convertible Subordinated Note or
portion thereof redeemed or repurchased in accordance with the applicable
redemption or repurchase provisions of the Indenture). Holder must surrender
Convertible Subordinated Notes to a Paying Agent to collect principal payments.
The Company will pay the principal of, premium, if any, and interest (including
Liquidated Damages, if any) on the Convertible Subordinated Notes at the office
or agency of the Company maintained for such purpose, in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. Until otherwise designated by the Company, the Company's office
or agency maintained for such purpose will be the principal Corporate Trust
Office of the Trustee (as defined below). However, the Company may pay
principal, premium, if any, and interest (including Liquidated Damages, if any)
by check payable in such money, and may mail such check to the holders of the
Convertible Subordinated Notes at their respective addresses as set forth in the
Register of holders of Convertible Subordinated Notes.
3. PAYING AGENT AND REGISTRAR. State Street Bank and Trust
Company (together with any successor Trustee under the Indenture referred to
below, the "Trustee"), will act as Paying Agent and Registrar. The Company may
change the Paying Agent, Registrar or co-registrar without prior notice. Subject
to certain limitations in the Indenture, the Company or any of its subsidiaries
may act in any such capacity.
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0. INDENTURE. The Company issued the Convertible Subordinated
Notes under an Indenture dated as of May 25, 2001 (the "Indenture") between the
Company and the Trustee. The terms of the Convertible Subordinated Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb) (the
"TIA") as in effect on the Issue Date. The Convertible Subordinated Notes are
subject to, and qualified by, all such terms, certain of which are summarized
hereon, and holders are referred to the Indenture and the TIA for a statement of
such terms. However, to the extent any provision of any Convertible Subordinated
Note conflicts with the express provisions of this Indenture, the provisions of
this Indenture shall govern and be controlling. The Convertible Subordinated
Notes are unsecured general obligations of the Company limited to (except as
otherwise provided in the Indenture) up to $250,000,000 in aggregate principal
amount, unless an election has been made as set forth in Article II of the
Indenture to increase such aggregate principal amount by an amount not to exceed
$50,000,000. Capitalized terms not defined below have the same meaning as is
given to them in the Indenture.
5. OPTIONAL REDEMPTION. On or after June 4, 2004, the Company
shall have the option to redeem the Convertible Subordinated Notes, in whole or
from time to time in part, at the following Redemption Prices (expressed as
percentages of principal amount), if redeemed during the twelve month period
beginning June 1 of each year indicated (June 4, 2004 through May 31, 2005, in
the case of the first such year) plus accrued and unpaid interest (and
Liquidated Damages, if any) to, but excluding, the Redemption Date:
YEAR REDEMPTION PRICE
---- ----------------
2004........................................... 102.300%
2005........................................... 101.150%
and 100% at June 1, 2006.
Notice of redemption will be mailed by first class mail at least
15 days but not more than 60 days before the Redemption Date to each holder of
Convertible Subordinated Notes to be redeemed at his or her registered address.
Convertible Subordinated Notes in denominations larger than $1,000 may be
redeemed in part but only in integral multiples of $1,000. If less than all the
Convertible Subordinated Notes are to be redeemed, the Trustee shall select the
Convertible Subordinated Notes to be redeemed by a method that complies with the
requirements of the principal national securities exchange, if any, on which the
Convertible Subordinated Notes are listed or quoted, or, if the Convertible
Subordinated Notes are not so listed, on a pro rata basis by lot or by any other
method that the Trustee considers fair and appropriate. On and after the
Redemption Date, interest (and Liquidated Damages, if any) ceases to accrue on
Convertible Subordinated Notes or portions thereof called for redemption (unless
the Company defaults in the payment of the Redemption Price). If this
Convertible Subordinated Note is redeemed on a date which is also an Interest
Payment Date, the interest payment (and Liquidated Damages, if any) due on such
Interest Payment Date
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will be paid to the Person in whose name this Convertible Subordinated Note is
registered at the close of business on such Regular Record Date.
6. DESIGNATED EVENT. Upon a Designated Event, the Company shall
make a Designated Event Offer to repurchase all outstanding Convertible
Subordinated Notes at a price equal to 101% of the aggregate principal amount of
the Convertible Subordinated Notes, plus accrued and unpaid interest (and
Liquidated Damages, if any) to, but excluding, the date of repurchase, such
offer to be made as provided in the Indenture. To accept the Designated Event
Offer, the holder hereof must comply with the terms thereof, including
surrendering this Convertible Subordinated Note, with the "Option of Holder to
Elect Repurchase" portion hereof completed, to the Company, a depositary, if
appointed by the Company, or a Paying Agent, at the address specified in the
notice of the Designated Event Offer mailed to holders as provided in the
Indenture, prior to termination of the Designated Event Offer.
7. SUBORDINATION. The Company's payment of the principal of,
premium, if any, and interest (including Liquidated Damages, if any) on the
Convertible Subordinated Notes is subordinated to the prior payment in full of
the Company's Senior Debt as set forth in the Indenture. Each holder of
Convertible Subordinated Notes by his or her acceptance hereof covenants and
agrees that all payments of the principal of, premium, if any, and interest
(including Liquidated Damages, if any) on the Convertible Subordinated Notes by
the Company shall be subordinated in accordance with the provisions of Article
XI of the Indenture, and each holder of Convertible Subordinated Notes accepts
and agrees to be bound by such provisions. The Company agrees, and each holder
of Convertible Subordinated Notes by accepting a Convertible Subordinated Note
agrees, that the indebtedness evidenced by the Convertible Subordinated Note is
pari passu in right of payment to the Existing Convertible Subordinated Notes.
8. DENOMINATIONS, TRANSFER, EXCHANGE. The Convertible
Subordinated Notes are in registered form without coupons in denominations of
$1,000 and integral multiples of $1,000. The transfer of Convertible
Subordinated Notes may be registered and Convertible Subordinated Notes may be
exchanged as provided in the Indenture. As a condition of transfer, the
Registrar and the Trustee may require a holder, among other things, to furnish
appropriate endorsements and transfer documents and the Company may require a
holder to pay any taxes and fees required by law or permitted by the Indenture.
The Company or the Registrar need not exchange or register the transfer of any
Convertible Subordinated Note or portion of a Convertible Subordinated Note
selected for redemption or submitted for repurchase. Also, the Company or the
Registrar need not exchange or register the transfer of any Convertible
Subordinated Note for a period of 15 days before a selection of Convertible
Subordinated Notes to be redeemed.
9. PERSONS DEEMED OWNERS. The registered holder of a Convertible
Subordinated Note may be treated as its owner for all purposes.
10. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Company and the Trustee may amend the Indenture or the Convertible Subordinated
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Notes with the written consent of the holders of at least a majority in
principal amount of the then outstanding Convertible Subordinated Notes
(including consents obtained in connection with tender offer or exchange offer
for Convertible Subordinated Notes) and any existing default may be waived with
the consent of the holders of a majority in principal amount of the then
outstanding Convertible Subordinated Notes.
Without the consent of any holder of a Convertible Subordinated
Note, the Indenture or the Convertible Subordinated Notes may be amended by the
Company and the Trustee to: (a) cure any ambiguity or correct or supplement any
defective or inconsistent provision contained in the Indenture, or make any
other changes in the provisions of the Indenture which the Company and the
Trustee may deem necessary or desirable provided such amendment does not
materially and adversely affect the legal rights under the Indenture of the
holders of Convertible Subordinated Notes; (b) provide for uncertificated
Convertible Subordinated Notes in addition to or in place of certificated
Convertible Subordinated Notes; (c) evidence the succession of another Person to
the Company and providing for the assumption by such successor of the covenants
and obligations of the Company thereunder and in the Convertible Subordinated
Notes as permitted by Section 5.01 of the Indenture; (d) provide for conversion
rights and/or repurchase rights of holders of Convertible Subordinated Notes in
the event of consolidation, merger or sale of all or substantially all of the
assets of the Company as required to comply with Sections 5.01 and/or 12.06 of
the Indenture; (e) reduce the Conversion Price; (f) make any change that would
provide any additional rights or benefits to the holders of Convertible
Subordinated Notes or that does not adversely affect the legal rights under the
Indenture of any such holder; or (g) comply with the requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the TIA.
Without the consent of each holder affected, an amendment or
waiver may not (with respect to any Convertible Subordinated Notes held by a
non-consenting holder): (a) reduce the principal amount of Convertible
Subordinated Notes whose holders must consent to an amendment, supplement or
waiver; (b) reduce the principal of, or premium on, or change the fixed maturity
of any Convertible Subordinated Note or, except as permitted pursuant to clause
(a) of the immediately preceding paragraph, alter the provisions with respect to
the redemption of the Convertible Subordinated Notes; (c) reduce the rate of or
change the time for payment of interest, including defaulted interest, or
Liquidated Damages on any Convertible Subordinated Notes; (d) waive a Default or
Event of Default in the payment of principal of or premium, if any, or interest
or Liquidated Damages on the Convertible Subordinated Notes (except a rescission
of acceleration of the Convertible Subordinated Notes by the holders of at least
a majority in aggregate principal amount of the Convertible Subordinated Notes
and a waiver of the payment default that resulted from such acceleration); (e)
make the principal of, or premium, if any, or interest or Liquidated Damages on,
any Convertible Subordinated Note payable in money other than as provided for in
the Indenture and in the Convertible Subordinated Notes; (f) make any change in
the provisions of the Indenture relating to waivers of past Defaults or the
rights of holders of Convertible Subordinated Notes to
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receive payments of principal of, premium, if any, or interest or Liquidated
Damages on the Convertible Subordinated Notes; (g) waive a redemption payment
with respect to any Convertible Subordinated Note; (h) make any change in the
foregoing amendment and waiver provisions, or (i) except as permitted by the
Indenture (including Section 9.01(a)), increase the Conversion Price or modify
the provisions of the Indenture relating to conversion of the Convertible
Subordinated Notes in a manner adverse to the holders thereof. In addition, any
amendment to the provisions of Article XI of the Indenture (which relate to
subordination) will require the consent of the holders of at least 75% in
aggregate principal amount of the Convertible Subordinated Notes then
outstanding if such amendment would adversely affect the rights of holders of
Convertible Subordinated Notes.
11. DEFAULTS AND REMEDIES. An Event of Default is: (a) default
in payment of the principal of, or premium, if any, on the Convertible
Subordinated Notes, when due at maturity, upon repurchase, upon acceleration or
otherwise, whether or not such payment is prohibited by the subordination
provisions of the Indenture; (b) default for 30 days or more in payment of any
installment of interest or Liquidated Damages on the Convertible Subordinated
Notes, whether or not such payment is prohibited by the subordination provisions
of the Indenture; (c) default by the Company for 60 days or more after notice in
the observance or performance of any other covenants in the Indenture; (d)
default in the payment of the Designated Event Payment in respect of the
Convertible Subordinated Notes on the date therefor, whether or not such payment
is prohibited by the subordination provisions of the Indenture; (e) failure to
provide timely notice of a Designated Event; (f) failure of the Company or any
Material Subsidiary to make any payment at maturity, including any applicable
grace period, in respect of indebtedness for borrowed money of, or guaranteed or
assumed by, the Company or any Material Subsidiary which payment is in an amount
in excess of $20,000,000 and continuance of such failure for 30 days after
notice; (g) default by the Company or any Material Subsidiary with respect to
any such indebtedness, which default results in the acceleration of such
indebtedness of an amount in excess of $20,000,000 without such indebtedness
having been paid or discharged or such acceleration having been cured, waived,
rescinded, or annulled for 30 days after notice; or (h) certain events involving
bankruptcy, insolvency or reorganization of the Company or any Material
Subsidiary. If an Event of Default occurs and is continuing, the Trustee or the
holders of at least 25% in principal amount of the then outstanding Convertible
Subordinated Notes may declare the unpaid principal of, premium, if any, and
accrued and unpaid interest and Liquidated Damages, if any, on all Convertible
Subordinated Notes then outstanding to be due and payable immediately, except
that in the case of an Event of Default arising from certain events of
bankruptcy, insolvency, or reorganization with respect to the Company all
outstanding Convertible Subordinated Notes become due and payable without
further action or notice. Holders of Convertible Subordinated Notes may not
enforce the Indenture or the Convertible Subordinated Notes except as provided
in the Indenture. The Trustee may require an indemnity satisfactory to it before
it enforces the Indenture or the Convertible Subordinated Notes. Subject to
certain limitations, holders of a majority in principal amount of the then
outstanding Convertible Subordinated Notes may direct
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the Trustee in its exercise of any trust or power. The Trustee may withhold from
holders notice of any continuing default (except a default in payment of
principal, premium, if any, or interest or Liquidated Damages, if applicable) if
it determines that withholding notice is in their interests. The Company must
furnish annual compliance certificates to the Trustee.
12. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee or any of its
Affiliates, in their individual or any other capacities, may make or continue
loans to or guaranteed by, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not Trustee.
13. NO RECOURSE AGAINST OTHERS. No director, officer, employee
or stockholder, as such, of the Company shall have any liability for any
obligations of the Company under the Convertible Subordinated Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each holder by accepting a Convertible
Subordinated Note waives and releases all such liability. The waiver and release
are part of the consideration for the Convertible Subordinated Notes.
14. AUTHENTICATION. This Convertible Subordinated Note shall not
be valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
15. ABBREVIATIONS. Customary abbreviations may be used in the
name of a holder or an assignee, such as: TEN CO = tenants in common, TEN ENT =
tenants by the entireties, JT TEN = joint tenants with right of survivorship and
not as tenants in common, CUST = Custodian and U/G/M/A = Uniform Gifts to Minors
Act.
16. CONVERSION. Subject to and upon compliance with the
provisions of the Indenture, the registered holder of this Convertible
Subordinated Note has the right at any time on or before the close of business
on the last trading day prior to the Maturity Date (or in case this Convertible
Subordinated Note or any portion hereof is (a) called for redemption prior to
such date, before the close of business on the last trading day preceding the
Redemption Date (unless the Company defaults in payment of the Redemption Price
in which case the conversion right will terminate at the close of business on
the trading day preceding the date such default is cured) or (b) subject to a
duly completed election for repurchase, on or before the close of business on
the Designated Event Offer Termination Date (unless the Company defaults in
payment due upon repurchase or such holder elects to withdraw the submission of
such election to repurchase ) to convert the principal amount hereof, or any
portion of such principal amount which is $1,000 or an integral multiple
thereof, into that number of fully paid and non-assessable shares of common
stock of the Company ("Common Stock") obtained by dividing the principal amount
of the Convertible Subordinated Note or portion thereof to be converted by the
conversion price of $35.00 per share, as adjusted from time to time as provided
in the Indenture (the "Conversion Price"), upon surrender of this Convertible
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Subordinated Note to the Company at the office or agency maintained for such
purpose (and at such other offices or agencies designated for such purpose by
the Company), accompanied by written notice of conversion duly executed (and if
the shares of Common Stock to be issued on conversion are to be issued in any
name other than that of the registered holder of this Convertible Subordinated
Note by instruments of transfer, in form satisfactory to the Company, duly
executed by the registered holder or its duly authorized attorney) and, in case
such surrender shall be made during the period from the close of business on the
Regular Record Date immediately preceding any Interest Payment Date through the
close of business on the last trading day immediately preceding such Interest
Payment Date (unless this Convertible Subordinated Note or the portion thereof
being converted has been called for redemption on a date in such period), also
accompanied by payment, in funds acceptable to the Company, of an amount equal
to the interest and Liquidated Damages, if any, otherwise payable on such
Interest Payment Date on the principal amount of this Convertible Subordinated
Note then being converted. Subject to the aforesaid requirement for a payment in
the event of conversion after the close of business on a Regular Record Date
immediately preceding an Interest Payment Date, no adjustment shall be made on
conversion for interest or Liquidated Damages accrued hereon or for dividends on
Common Stock delivered on conversion. The right to convert this Convertible
Subordinated Note is subject to the provisions of the Indenture relating to
conversion rights in the case of certain consolidations, mergers, or sales or
transfers of substantially all the Company's assets.
The Company shall not issue fractional shares or scrip
representing fractions of shares of Common Stock upon any such conversion, but
shall make an adjustment therefor in cash based upon the current market price of
the Common Stock on the last trading day prior to the date of conversion.
17. REGISTRATION AGREEMENT. The holder of this Convertible
Subordinated Note is entitled to the benefits of a Registration Agreement, dated
May 25, 2001, between the Company and the Initial Purchasers (the "Registration
Agreement"). Pursuant to the Registration Agreement the Company has agreed for
the benefit of the holders of the Convertible Subordinated Notes and the Common
Stock issued upon conversion of the Convertible Subordinated Notes, that (i) it
will, at its cost, within 90 days after the Issue Date, file a shelf
registration statement (the "Shelf Registration Statement") with the Securities
and Exchange Commission (the "Commission") with respect to resales of the
Convertible Subordinated Notes and the Common Stock issuable upon conversion
thereof, (ii) the Company will use its reasonable efforts to cause such Shelf
Registration Statement to be declared effective under the Securities Act within
210 days after the Issue Date and (iii) the Company will keep such Shelf
Registration Statement continuously effective under the Securities Act until the
earliest of (a) the second anniversary of the Issue Date or, if later, the
second anniversary of the last date on which any Convertible Subordinated Notes
are issued upon exercise of the Initial Purchasers' over-allotment option, (b)
the date on which the Convertible Subordinated Notes or the Common Stock issued
or issuable upon conversion thereof may be sold by non-affiliates of the Company
pursuant to paragraph (k) of Rule 144 (or any successor
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provision then in force) promulgated by the Commission under the Securities Act,
(c) the date as of which all the Convertible Subordinated Notes or the Common
Stock issued or issuable upon conversion thereof have been transferred pursuant
to Rule 144 under the Securities Act (or any successor provision then in force)
promulgated by the Commission under the Securities Act and (d) the date as of
which all the Convertible Subordinated Notes or the Common Stock issued or
issuable upon conversion thereof have been sold pursuant to the Shelf
Registration Statement.
If the Shelf Registration Statement (i) is not filed with the
Commission on or prior to 90 days, or has not been declared effective by the
Commission within 210 days, after the Issue Date, or (ii) is filed and declared
effective but shall thereafter cease to be effective (without being succeeded
immediately by a replacement shelf registration statement filed and declared
effective) or usable (including as a result of a Suspension Period) for the
offer and sale of Transfer Restricted Securities for a period of time which
shall exceed 60 days in the aggregate in any 12-month period during the period
beginning on the Issue Date and ending on the second anniversary of the Issue
Date or, if later, the second anniversary of the last date on which any
Convertible Subordinated Notes are issued upon exercise of the Initial
Purchasers' over-allotment option, (each such event referred to in clauses (i)
and (ii) being referred to herein as a "Registration Default"), the Company will
pay Liquidated Damages to each holder of Transfer Restricted Securities that has
complied with its obligations under the Registration Agreement. The amount of
Liquidated Damages payable during any period in which a Registration Default
shall have occurred and be continuing is that amount which is equal to
one-quarter of one percent (25 basis points) per annum per $1,000 principal
amount of Securities and $2.50 per annum per 28.5714 shares of Common Stock
(subject to adjustment in the event of a stock split, stock recombination, stock
dividend and the like) constituting Transfer Restricted Securities for the first
90 days during which a Registration Default has occurred and is continuing and
one-half of one percent (50 basis points) per annum per $1,000 principal amount
of Convertible Subordinated Notes and $5.00 per annum per 28.5714 shares of
Common Stock (subject to adjustment as set forth above) constituting Transfer
Restricted Securities for any additional days during which such Registration
Default has occurred and is continuing. The Company will pay all accrued
Liquidated Damages by wire transfer of immediately available funds or by federal
funds check on each Damages Payment Date (as defined in the Registration
Agreement). Following the cure of a Registration Default, Liquidated Damages
will cease to accrue with respect to such Registration Default.
"Transfer Restricted Securities" means each Convertible
Subordinated Note and each share of Common Stock issuable or issued on
conversion thereof until the date on which such Convertible Subordinated Note or
share, as the case may be, (i) has been transferred pursuant to the Shelf
Registration Statement or another registration statement covering such
Convertible Subordinated Note or share which has been filed with the Commission
pursuant to the Securities Act, in either case after such registration statement
has become effective and while such registration statement is effective under
the Securities Act, (ii) has been transferred pursuant to Rule 144 under the
Securities Act
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(or any similar provision then in force), or (iii) may be sold or transferred
pursuant to paragraph (k) of Rule 144 (or any successor provision then in force)
promulgated by the Commission under the Securities Act.
Pursuant to the Registration Agreement, the Company may suspend
the use of the prospectus which is a part of the Shelf Registration Statement
for a period not to exceed 30 days in any three-month period or for three
periods not to exceed an aggregate of 90 days in any twelve-month period (any
such period being referred to as a "Suspension Period") under certain
circumstances; provided that the existence of a Suspension Period will not
prevent the occurrence of a Registration Default or otherwise limit the
obligation of the Company to pay Liquidated Damages.
The above description of certain provisions of the Registration
Agreement is qualified by reference to, and is subject in its entirety to, the
more complete description thereof contained in the Registration Agreement.
The Company will furnish to any holder upon written request and
without charge a copy of the Indenture and the Registration Agreement. Requests
may be made to: Corporate Secretary, Amkor Technology, Inc., 0000 Xxxxxxxxxx
Xxxxx, Xxxx Xxxxxxx, XX 00000.
X-00
00
XXXXXXXX XX XXXXXXXXX OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global
Note or Definitive Note for an interest in this Global Note, have been made:
Date of Transfer Amount of Decrease Amount of Increase Principal Amount of Signature of
in Principal Amount in Principal Amount this Global Note Authorized Signatory
of this Global Note of this Global Note following such of Trustee or
increase or decrease Registrar
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FORM OF CONVERSION NOTICE
To: AMKOR TECHNOLOGY, INC.
The undersigned registered owner of the Convertible Subordinated
Note hereby irrevocably exercises the option to convert this Convertible
Subordinated Note, or portion hereof (which is $1,000 or an integral multiple
thereof) below designated, into shares of Common Stock of Amkor Technology, Inc.
in accordance with the terms of the Indenture referred to in this Convertible
Subordinated Note, and directs that the shares issuable and deliverable upon the
conversion, together with any check in payment for fractional shares and
Convertible Subordinated 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 shares or any portion of this
Convertible Subordinated 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 by the undersigned
on account of interest, Liquidated Damages and taxes accompanies this
Convertible Subordinated Note.
Dated:
Fill in for registration of shares if to be delivered, and
Convertible Subordinated Notes if to be issued, other than
to and in the name of the registered holder
(Please Print):
-------------------------------------------------------
(Name)
-------------------------------------------------------
(Street Address)
-------------------------------------------------------
(City, State and Zip Code)
Signature Guarantee:
-------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
---------------------------------------------------------------
Signature(s)
Principal amount to be converted (if less than all):
$___,000
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---------------------------------------------------------------
Social Security or other Taxpayer Identification Number
[Signatures must be guaranteed by an eligible Guarantor Institution (banks,
brokers, dealers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if shares are to be issued, or
Convertible Subordinated Notes are to be delivered, other than to and in the
name of the registered holder(s).]
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ASSIGNMENT FORM
To assign this Convertible Subordinated Note, fill in the form below:
(I) or (we) assign and transfer this Convertible Subordinated Note to
-------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
-------------------------------------------------------------
-------------------------------------------------------------
-------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ agent to transfer
this Convertible Subordinated Note on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
-------------------------------------------------------
(Sign exactly as your name appears on the
other side of this Convertible Subordinated Note)
Date:
----------------------------------
Medallion Signature Guarantee:
----------------------------------
[FOR INCLUSION ONLY IF THIS CONVERTIBLE SUBORDINATED NOTE BEARS A RESTRICTED
SECURITIES LEGEND] In connection with any transfer of any of the Convertible
Subordinated Notes evidenced by this certificate which are "restricted
securities" (as defined in Rule 144 (or any successor thereto) under the
Securities Act), the undersigned confirms that such Convertible Subordinated
Notes are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to and in compliance with Rule 144A
under the Securities Act of 1933; or
(3) [ ] pursuant to and in compliance with Regulation S
under the Securities Act of 1933; or
(4) [ ] to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933) that has furnished
to the Trustee a signed letter containing
certain representations and agreements (the form
of which letter can be obtained from the
Trustee); or
(5) [ ] pursuant to an exemption from registration under
the Securities Act of 1933 provided by Rule 144
thereunder.
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Unless one of the boxes is checked, the Registrar will refuse to
register any of the Convertible Subordinated Notes evidenced by
this certificate in the name of any Person other than the
registered holder thereof; provided, however, that if box (3),
(4) or (5) is checked, the Trustee may require, prior to
registering any such transfer of the Convertible Subordinated
Notes, such certifications and other information, and if box (5)
is checked such legal opinions, as the Company has reasonably
requested in writing, by delivery to the Trustee of a standing
letter of instruction, to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act
of 1933; provided that this paragraph shall not be applicable to
any Convertible Subordinated Notes which are not "restricted
securities" (as defined in Rule 144 (or any successor thereto)
under the Securities Act).
Your Signature:
--------------------------------------------------------
(Sign exactly as your name appears on the
other side of this Convertible Subordinated Note)
Date:
----------------------------------
Medallion Signature Guarantee:
------------------------------------------
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OPTION OF HOLDER TO ELECT REPURCHASE
If you wish to have this Convertible Subordinated Note
repurchased by the Company pursuant to Section 4.06 of the Indenture, as the
case may be, check the Box:
If you wish to have a portion of this Convertible Subordinated
Note purchased by the Company pursuant to Section 4.06 of the Indenture, state
the amount (in multiples of $1,000): $_____.
Date: Your Signature:
(Sign exactly as your name appears on the other side of this Convertible
Subordinated Note)
Medallion Signature Guarantee:
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EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM GLOBAL SECURITY OR DEFINITIVE SECURITY
TO DEFINITIVE SECURITY
(Transfers pursuant to ss. 2.06(a)(i) or ss. 2.06(a)(ii) of the Indenture)
State Street Bank and Trust Company, as Registrar
Attn: Corporate Trust Department
Re: Amkor Technology, Inc. 5.75% Convertible Subordinated
Notes Due 2006 (the "Convertible Subordinated Notes)
Reference is hereby made to the Indenture dated as of May 25,
2001 (the "Indenture") between Amkor Technology, Inc. and State Street Bank and
Trust Company, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given them in the Indenture.
This letter relates to U.S. $__________ aggregate principal
amount of Convertible Subordinated Notes which are held [in the form of a
[Definitive] [Global Security (CUSIP No. _____________)]* in the name of [name
of transferor] (the "Transferor") to effect the transfer of the Convertible
Subordinated Notes.
In connection with such request, and in respect of such
Convertible Subordinated Notes, the Transferor does hereby certify that such
Convertible Subordinated Notes are being transferred in accordance with (i) the
transfer restrictions set forth in the Convertible Subordinated Notes and the
Indenture and (ii) to a transferee that the Transferor reasonably believes is an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the U.S. Securities Act of 1933, as amended) (an
"Institutional Accredited Investor") which is acquiring such Convertible
Subordinated Notes for its own account or for one or more accounts, each of
which is an Institutional Accredited Investors, over which it exercises sole
investment discretion and (iii) in accordance with applicable securities laws of
any state of the United States.
[Name of Transferor],
By:
Name:
Title:
Dated:
--------------------------------
* Insert, if appropriate.
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EXHIBIT C
FORM OF ACCREDITED INVESTOR TRANSFEREE CERTIFICATE
(Transfers pursuant to ss. 2.06(a)(i) and ss. 2.06(a)(ii))
State Street Bank and Trust Company, as Registrar
Attn: Corporate Trust Department
Re: Amkor Technology, Inc. 5.75% Convertible Subordinated
Notes Due 2006 (the "Convertible Subordinated Notes")
Reference is hereby made to the Indenture dated as of May 25,
2001 (the "Indenture") between Amkor Technology, Inc., a Delaware corporation
(the "Company"), and State Street Bank and Trust Company, as Trustee (the
"Trustee"). Capitalized terms used but not defined herein shall have the
meanings given them in the Indenture.
In connection with our proposed purchase of $___________________
aggregate principal amount of the Convertible Subordinated Notes, which are
convertible into shares of common stock ("Common Stock") of the Company, we
confirm that:
We understand that the Convertible Subordinated Notes and the Common Stock
issuable upon conversion thereof have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We understand and agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated, (x)
that such Convertible Subordinated Notes are being transferred to us in a
transaction not involving any public offering within the meaning of the
Securities Act, (y) that if we should resell, pledge or otherwise transfer any
such Convertible Subordinated Notes or any shares of Common Stock issuable upon
conversion thereof prior to the later of (I) the expiration of the holding
period under Rule 144(k) (or any successor thereto) under the Securities Act
which is applicable to such Convertible Subordinated Notes or shares of Common
Stock, as the case may be, or (II) within three months after we cease to be an
affiliate (within the meaning of Rule 144 under the Securities Act) of the
Company, such Convertible Subordinated Notes or the Common Stock issuable upon
conversion thereof may be resold, pledged or transferred only (i) to the
Company, (ii) so long as such Convertible Subordinated Notes are eligible for
resale pursuant to Rule 144A under the Securities Act ("Rule 144A"), to a Person
whom we reasonably believe is a "qualified institutional buyer" (as defined in
Rule 144A) ("QIB") that purchases for its own account or for the account of a
QIB to whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A (as indicated by the box checked by the transferor
C-1
97
on the Assignment Form on the reverse of the certificate for the Convertible
Subordinated Notes), it being understood that the Common Stock is not eligible
for resale pursuant to Rule 144A, (iii) in an offshore transaction (as defined
in Regulation S under the Securities Act) in accordance with Regulation S under
the Securities Act (as indicated by the box checked by the transferor on the
Assignment Form on the reverse of the certificate for the Convertible
Subordinated Notes or on a comparable Assignment Form for the Common Stock
issuable upon conversion thereof), (iv) to an institution that is an "accredited
investor" as defined in Rule 501 (a) (1), (2), (3) or (7) under the Securities
Act (an "Institutional Accredited Investor") (as indicated by the box checked by
the transferor on the Assignment Form on the reverse of the certificate for the
Convertible Subordinated Notes or on a comparable Assignment Form for the Common
Stock issuable upon conversion thereof) that is acquiring the securities for its
own account or for the account of one or more other Institutional Accredited
Investors over which it exercises sole investment discretion and that prior to
such transfer, delivers a signed letter to the Company and the Trustee (or the
transfer agent in the case of Common Stock issuable upon conversion thereof)
certifying that it and each such account is such an Institutional Accredited
Investor and is acquiring the Convertible Subordinated Notes or the Common Stock
issuable upon conversion thereof for investment purposes and not for
distribution and agreeing to the restrictions on transfer of the Convertible
Subordinated Notes or the Common Stock issuable upon conversion thereof, (v)
pursuant to an exemption from registration under the Securities Act provided by
Rule 144 (if applicable) under the Securities Act (as indicated by the box
checked transferor on the Assignment Form on the reverse of the certificate for
the Convertible Subordinated Notes or a comparable Assignment Form for the
Common Stock issuable upon conversion thereof), or (vi) pursuant to an effective
registration statement under the Securities Act, in each case in accordance with
any applicable securities laws of any state of the United States, and we will
notify any purchaser of the Convertible Subordinated Notes or the Common Stock
issuable upon conversion thereof from us of the above resale restrictions, if
then applicable. We further understand that in connection with any transfer of
the Convertible Subordinated Notes or the Common Stock issuable upon conversion
thereof (other than a transfer pursuant to clause (vi) above) by us that the
Company and the Trustee (or the transfer agent in the case of Common Stock
issuable upon conversion thereof) may request, and if so requested we will
furnish, such certificates and other information and, in the case of a transfer
pursuant to clause (v) above, a legal opinion as they may reasonably require to
confirm that any such transfer complies with the foregoing restrictions.
Finally, we understand that in any case we will not directly or indirectly
engage in any hedging transactions with regard to the Convertible Subordinated
Notes or the Common Stock issuable upon conversion of the Convertible
Subordinated Notes except as permitted by the Securities Act.
2. We are able to fend for ourselves in connection with our
purchase of the Convertible Subordinated Notes, we have such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Convertible Subordinated Notes, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment and can afford the complete loss of such investment.
3. We understand that the Company and others will rely upon
the truth and accuracy of the foregoing acknowledgments, representations,
agreements and
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warranties and we agree that if any of the acknowledgments, representations,
agreements or warranties made or deemed to have been made by us by our purchase
of the Convertible Subordinated Notes, for our own account or for one or more
accounts as to each of which we exercise sole investment discretion, are no
longer accurate, we shall promptly notify the Company.
4. With respect to the certificates representing
Convertible Subordinated Notes we are purchasing, we understand that such
certificates will be in definitive registered form and that the notification
requirement referred to in 1 above requires that, until the expiration of the
holding period with respect to sales of the Convertible Subordinated Notes under
clause (k) of Rule 144 under the Securities Act, such Convertible Subordinated
Notes will bear a legend substantially to the following effect:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE EXPIRATION OF THE
SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO)
OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144
UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE
COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION
(AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (4) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION AND THAT, PRIOR TO
SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER MAY BE
OBTAINED FROM THE TRUSTEE), (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT
OR (6) PURSUANT TO AN
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EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER OR
(2) AN INSTITUTIONAL ACCREDITED INVESTOR AND THAT IT IS HOLDING THIS SECURITY
FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3) NOT A U.S. PERSON AND IS
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE
SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY,
ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS SECURITY OR ANY COMMON
STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT AS PERMITTED BY THE
SECURITIES ACT."
5. With respect to certificates representing shares of
Common Stock issuable upon conversion of the Convertible Subordinated Notes, we
understand that the notification requirement referred to in 1 above requires
that, until the expiration of the holding period with respect to sales of such
Common Stock under clause (k) of Rule 144 under the Securities Act, such
certificates will bear a legend substantially to the effect set forth as Exhibit
D to the Indenture and that a copy of such legend may be obtained from the
Trustee.
6. We are acquiring the Convertible Subordinated Notes
purchased by us for investment purposes, and not for distribution, for our own
account or for one or more accounts as to each of which we exercise sole
investment discretion and we are and each such account is an Institutional
Accredited Investor.
7. You and the Company are entitled to rely on this letter
and you and the Company are irrevocably authorized to produce this letter or a
copy hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
(Name of Purchaser)
By:
Dated:
C-4
000
XXXXXXX X
XXXX XX XXXXXXXXXX XXXXXX STOCK LEGEND
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING
THIS SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT
BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE EXPIRATION OF THE
SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO)
OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144
UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE
COMPANY, (2) IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (3) TO
AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION, AND THAT, PRIOR TO SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE
TRANSFER AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE
FORM OF WHICH LETTER MAY BE OBTAINED FROM THE COMPANY OR THE TRANSFER AGENT),
(4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) AN INSTITUTIONAL ACCREDITED
INVESTOR AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT
FOR DISTRIBUTION OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH
(k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE
HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING
TRANSACTION WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES
ACT."
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101
EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OF RESTRICTED COMMON STOCK
(Transfers pursuant to ss. 12.11(c) of the Indenture)
[NAME AND ADDRESS OF COMMON STOCK TRANSFER AGENT]
Re: Amkor Technology, Inc. 5.75% Convertible Subordinated Notes
Due 2006 (the "Convertible Subordinated Notes")
Reference is hereby made to the Indenture dated as of May 21,
2001 (the "Indenture") between Amkor Technology, Inc. and State Street Bank and
Trust Company, as Trustee. Capitalized terms used but not defined herein shall
have the meanings given them in the Indenture.
This letter relates to _________ shares of Common Stock
represented by the accompanying certificate(s) that were issued upon conversion
of Convertible Subordinated Notes and which are held in the name of [name of
transferor] (the "Transferor") to effect the transfer of such Common Stock.
In connection with the transfer of such shares of Common Stock,
the undersigned confirms that such shares of Common Stock are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to and in compliance with Regulation S
under the Securities Act of 1933; or
(3) [ ] to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under
the Securities Act of 1933) that has furnished
to the transfer agent a signed letter containing
certain representations and agreements (the form
of which letter can be obtained from the Company
or transfer agent); or
(4) [ ] pursuant to an exemption from registration under
the Securities Act of 1933 provided by Rule 144
thereunder.
Unless one of the boxes is checked, the transfer agent will
refuse to register any of the Common Stock evidenced by this certificate in the
name of any Person other than the registered holder thereof; provided, however,
that if box (2), (3) or (4) is checked, the transfer agent may require, prior to
registering any such transfer of the Common Stock such certifications and other
information, and if box (4) is checked such
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legal opinions, as the Company has reasonably requested in writing, by delivery
to the transfer agent of a standing letter of instruction, to confirm that such
transfer is being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1933.
[Name of Transferor],
By
Name:
Title:
Dated:
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TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS.......................................................................1
SECTION 1.01.Definitions.......................................................................1
SECTION 1.02.Other Definitions.................................................................9
SECTION 1.03.Incorporation by Reference of Trust Indenture Act................................10
SECTION 1.04.Rules of Construction............................................................10
ARTICLE II THE CONVERTIBLE SUBORDINATED NOTES...............................................11
SECTION 2.01.Form and Dating..................................................................11
SECTION 2.02.Execution and Authentication.....................................................12
SECTION 2.03.The Trustee Registrar, Paying Agent and Conversion Agent.........................13
SECTION 2.04.Paying Agent To Hold Money in Trust..............................................13
SECTION 2.05.Holder Lists.....................................................................14
SECTION 2.06.Transfer and Exchange............................................................14
SECTION 2.07.Replacement Convertible Subordinated Notes.......................................18
SECTION 2.08.Outstanding Convertible Subordinated Notes.......................................19
SECTION 2.09.When Treasury Convertible Subordinated Notes Disregarded.........................19
SECTION 2.10.Temporary Convertible Subordinated Notes.........................................19
SECTION 2.11.Cancellation.....................................................................20
SECTION 2.12.Defaulted Interest...............................................................21
SECTION 2.13.CUSIP Number.....................................................................21
SECTION 2.14.Regulation S.....................................................................21
ARTICLE III REDEMPTION.......................................................................21
SECTION 3.01.Optional Redemption..............................................................22
SECTION 3.02.Notices to Trustee...............................................................22
SECTION 3.03.Selection of Convertible Subordinated Notes To Be Redeemed.......................22
SECTION 3.04.Notice of Redemption.............................................................23
SECTION 3.05.Effect of Notice of Redemption...................................................24
SECTION 3.06.Deposit of Redemption Price......................................................24
SECTION 3.07.Convertible Subordinated Notes Redeemed in Part..................................25
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 3.08.Conversion Arrangement on Call for Redemption....................................25
ARTICLE IV COVENANTS........................................................................26
SECTION 4.01.Payment of Convertible Subordinated Notes........................................26
SECTION 4.02.Commission Reports...............................................................26
SECTION 4.03.Compliance Certificate...........................................................26
SECTION 4.04.Maintenance of Office or Agency..................................................27
SECTION 4.05.Continued Existence..............................................................27
SECTION 4.06.Repurchase Upon Designated Event.................................................27
SECTION 4.07.Appointments to Fill Vacancies in Trustee's Office...............................30
SECTION 4.08.Stay, Extension and Usury Laws...................................................30
SECTION 4.09.Taxes............................................................................30
SECTION 4.10.Liquidated Damages...............................................................31
ARTICLE V SUCCESSORS.......................................................................31
SECTION 5.01.When the Company May Merge, Etc..................................................31
SECTION 5.02.Successor Corporation Substituted................................................32
SECTION 5.03.Purchase Option on Change of Control.............................................32
ARTICLE VI DEFAULTS AND REMEDIES............................................................32
SECTION 0.00.Xxxxxx of Default................................................................32
SECTION 6.02.Acceleration.....................................................................35
SECTION 6.03.Other Remedies...................................................................35
SECTION 6.04.Waiver of Past Defaults..........................................................35
SECTION 6.05.Control by Majority..............................................................36
SECTION 6.06.Limitation on Suits..............................................................36
SECTION 6.07.Rights of Holders To Receive Payment.............................................37
SECTION 6.08.Collection Suit by Trustee.......................................................37
SECTION 6.09.Trustee May File Proofs of Claim.................................................37
SECTION 6.10.Priorities.......................................................................37
SECTION 6.11.Undertaking for Costs............................................................38
ARTICLE VII THE TRUSTEE......................................................................38
SECTION 7.01.Duties of the Trustee............................................................38
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 7.02.Rights of the Trustee............................................................39
SECTION 7.03.Individual Rights of the Trustee.................................................41
SECTION 7.04.Trustee's Disclaimer.............................................................41
SECTION 7.05.Notice of Defaults...............................................................41
SECTION 7.06.Reports by the Trustee to Holders................................................41
SECTION 7.07.Compensation and Indemnity.......................................................42
SECTION 7.08.Replacement of the Trustee.......................................................43
SECTION 7.09.Successor Trustee by Merger, etc.................................................44
SECTION 7.10.Eligibility, Disqualification....................................................44
SECTION 7.11.Preferential Collection of Claims Against Company................................44
ARTICLE VIII SATISFACTION AND DISCHARGE OF INDENTURE..........................................44
SECTION 8.01.Discharge of Indenture...........................................................44
SECTION 8.02.Deposited Monies to be Held in Trust by Trustee..................................45
SECTION 8.03.Paying Agent to Repay Monies Held................................................45
SECTION 8.04.Return of Unclaimed Monies.......................................................45
SECTION 8.05.Reinstatement....................................................................46
ARTICLE IX AMENDMENTS.......................................................................46
SECTION 9.01.Without the Consent of Holders...................................................46
SECTION 9.02.With the Consent of Holders......................................................47
SECTION 9.03.Compliance with the Trust Indenture Act..........................................48
SECTION 9.04.Revocation and Effect of Consents................................................48
SECTION 9.05.Notation on or Exchange of Convertible Subordinated Notes........................49
SECTION 9.06.Trustee Protected................................................................49
ARTICLE X GENERAL PROVISIONS...............................................................49
SECTION 00.00.Xxxxx Indenture Act Controls....................................................49
SECTION 10.02.Notices.........................................................................50
SECTION 10.03.Communication by Holders With Other Holders.....................................50
SECTION 10.04.Certificate and Opinion as to Conditions Precedent..............................50
SECTION 10.05.Statements Required in Certificate or Opinion...................................51
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 10.06.Rules by Trustee and Agents.....................................................51
SECTION 00.00.Xxxxx Holidays..................................................................52
SECTION 00.00.Xx Recourse Against Others......................................................52
SECTION 10.09.Counterparts....................................................................52
SECTION 10.10.Other Provisions................................................................52
SECTION 10.11.Governing Law...................................................................53
SECTION 00.00.Xx Adverse Interpretation of Other Agreements...................................53
SECTION 10.13.Successors......................................................................53
SECTION 10.14.Severability....................................................................53
SECTION 10.15.Table of Contents, Headings, Etc................................................53
ARTICLE XI SUBORDINATION....................................................................53
SECTION 11.01.Agreement to Subordinate........................................................53
SECTION 11.02.Liquidation; Dissolution; Bankruptcy............................................54
SECTION 11.03.Default on Senior Debt and/or Designated Senior Debt............................54
SECTION 11.04.Acceleration of Convertible Subordinated Notes..................................55
SECTION 11.05.When Distribution Must Be Paid Over.............................................55
SECTION 11.06.Notice by Company...............................................................56
SECTION 11.07.Subrogation.....................................................................56
SECTION 11.08.Relative Rights.................................................................56
SECTION 11.09.Subordination May Not Be Impaired by Company....................................57
SECTION 11.10.Distribution or Notice to Representative........................................57
SECTION 11.11.Rights of Trustee and Paying Agent..............................................57
SECTION 11.12.Authorization to Effect Subordination...........................................57
SECTION 11.13.Article Applicable to Paying Agents.............................................58
SECTION 11.14.Senior Debt Entitled to Rely....................................................58
SECTION 11.15.Permitted Payments..............................................................58
ARTICLE XII CONVERSION OF CONVERTIBLE SUBORDINATED NOTES.....................................58
SECTION 12.01.Right to Convert................................................................58
SECTION 12.02.Exercise of Conversion Privilege; Issuance of Common Stock on Conversion;
No Adjustment for Interest or Dividends.........................................59
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TABLE OF CONTENTS
(CONTINUED)
PAGE
SECTION 00.00.Xxxx Payments in Lieu of Fractional Shares......................................60
SECTION 12.04.Conversion Price................................................................61
SECTION 12.05.Adjustment of Conversion Price..................................................61
SECTION 12.06.Effect of Reclassification, Consolidation, Merger or Sale.......................71
SECTION 12.07.Taxes on Shares Issued..........................................................72
SECTION 12.08.Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock.........72
SECTION 12.09.Responsibility of Trustee.......................................................73
SECTION 12.10.Notice to Holders Prior to Certain Actions......................................73
SECTION 12.11.Restriction on Common Stock Issuable Upon Conversion............................74
v
