EXHIBIT 4.1
-----------
L-1 IDENTITY SOLUTIONS, INC.
AS ISSUER,
AND
THE BANK OF NEW YORK,
AS TRUSTEE
3.75% CONVERTIBLE SENIOR NOTES DUE 2027
INDENTURE
DATED AS OF MAY 17, 2007
TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
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........................................................11
ARTICLE II
THE SECURITIES
Section 2.01 Title; Amount and Issue of Securities; Principal and Interest................11
Section 2.02 Form of Securities...........................................................12
Section 2.03 Legends......................................................................13
Section 2.04 Execution and Authentication.................................................17
Section 2.05 Registrar and Paying Agent...................................................18
Section 2.06 Paying Agent to Hold Money in Trust..........................................19
Section 2.07 Holder Lists.................................................................19
Section 2.08 General Provisions Relating to Transfer and Exchange.........................19
Section 2.09 Book-Entry Provisions for the Global Securities..............................20
Section 2.10 Special Transfer Provisions..................................................22
Section 2.11 Mutilated, Destroyed, Lost or Wrongfully Taken Securities....................23
Section 2.12 Outstanding Securities.......................................................24
Section 2.13 Temporary Securities.........................................................24
Section 2.14 Cancellation.................................................................24
Section 2.15 Payment of Interest; Defaulted Interest......................................25
Section 2.16 Computation of Interest......................................................26
Section 2.17 CUSIP and ISIN Numbers.......................................................26
ARTICLE III
COVENANTS
Section 3.01 Payment of Securities........................................................26
Section 3.02 Maintenance of Office or Agency..............................................27
Section 3.03 Corporate Existence..........................................................27
Section 3.04 Payment of Taxes and Other Claims............................................27
Section 3.05 Compliance Certificate.......................................................27
Section 3.06 Further Instruments and Acts.................................................28
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Section 3.07 Statement by Officers as to Default..........................................28
Section 3.08 Additional Interest..........................................................28
ARTICLE IV
SUCCESSOR COMPANY
Section 4.01 Consolidation, Merger and Sale of Assets.....................................28
ARTICLE V
REPORTING OBLIGATIONS
Section 5.01 Reporting Obligations........................................................29
Section 5.02 Reporting in Compliance with TIA.............................................30
ARTICLE VI
REDEMPTION OF SECURITIES
Section 6.01 Optional Redemption..........................................................30
Section 6.02 Election to Redeem; Notice to Trustee........................................30
Section 6.03 Selection by Trustee of Securities to Be Redeemed............................30
Section 6.04 Notice of Redemption.........................................................31
Section 6.05 Deposit of Redemption Price..................................................32
Section 6.06 Securities Payable on Redemption Date........................................32
Section 6.07 Securities Redeemed in Part..................................................32
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.01 Events of Default............................................................33
Section 7.02 Acceleration.................................................................35
Section 7.03 Sole Remedy for Failure to Report............................................35
Section 7.04 Other Remedies...............................................................35
Section 7.05 Waiver of Past Defaults......................................................36
Section 7.06 Control by Majority..........................................................36
Section 7.07 Limitation on Suits..........................................................36
Section 7.08 Rights of Holders to Receive Payment.........................................37
Section 7.09 Collection Suit by Trustee...................................................37
Section 7.10 Trustee May File Proofs of Claim.............................................37
Section 7.11 Priorities...................................................................37
Section 7.12 Restoration of Rights and Remedies...........................................38
Section 7.13 Undertaking of Costs.........................................................38
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ARTICLE VIII
TRUSTEE
Section 8.01 Duties of Trustee............................................................38
Section 8.02 Rights of Trustee............................................................39
Section 8.03 Individual Rights of Trustee.................................................41
Section 8.04 Trustee's Disclaimer.........................................................41
Section 8.05 Notice of Defaults...........................................................41
Section 8.06 Reports by Trustee to Holders................................................41
Section 8.07 Compensation and Indemnity...................................................41
Section 8.08 Replacement of Trustee.......................................................42
Section 8.09 Successor Trustee by Merger..................................................43
Section 8.10 Eligibility; Disqualification................................................43
Section 8.11 Preferential Collection of Claims Against Company............................43
ARTICLE IX
DISCHARGE OF INDENTURE
Section 9.01 Discharge of Liability on Securities.........................................44
Section 9.02 Reinstatement................................................................44
Section 9.03 Officers' Certificate; Opinion of Counsel....................................45
ARTICLE X
AMENDMENTS
Section 10.01 Without Consent of Holders...................................................45
Section 10.02 With Consent of Holders......................................................46
Section 10.03 Compliance with Trust Indenture Act..........................................47
Section 10.04 Revocation and Effect of Consents and Waivers................................47
Section 10.05 Notation on or Exchange of Securities........................................47
Section 10.06 Trustee to Sign Amendments...................................................47
ARTICLE XI
PURCHASE AT THE OPTION OF HOLDERS UPON A FUNDAMENTAL CHANGE; PURCHASE AT THE OPTION OF
HOLDERS
Section 11.01 Purchase at the Option of the Holder Upon a Fundamental Change...............48
Section 11.02 Purchase of Securities at the Option of the Holder...........................50
Section 11.03 Further Conditions and Procedures for Purchase at the Option of the
Holder Upon a Fundamental Change and Purchase of Securities at the
Option of the Holder.........................................................51
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ARTICLE XII
CONVERSION
Section 12.01 Conversion of Securities.....................................................55
Section 12.02 Adjustments to Conversion Rate and the Incremental Share Factor..............61
Section 12.03 Adjustment to Common Stock Delivered Upon Certain Fundamental Changes........68
Section 12.04 Conversion After a Public Acquirer Change of Control.........................69
Section 12.05 Effect of Recapitalizations, Reclassifications, and Changes of Common
Stock........................................................................70
Section 12.06 Responsibility of Trustee....................................................72
Section 12.07 Stockholder Rights Plan......................................................73
Section 12.08 No Stockholder Rights........................................................73
Section 12.09 Withholding Taxes for Adjustments in Conversation Rate.......................73
ARTICLE XIII
[RESERVED]
ARTICLE XIV
MISCELLANEOUS
Section 14.01 Trust Indenture Act Controls.................................................73
Section 14.02 Notices......................................................................73
Section 14.03 Communication by Holders with other Holders..................................74
Section 14.04 Certificate and Opinion as to Conditions Precedent...........................74
Section 14.05 Statements Required in Certificate or Opinion................................75
Section 14.06 When Securities Are Disregarded..............................................75
Section 14.07 Rules by Trustee, Paying Agent and Registrar.................................75
Section 14.08 Legal Holidays...............................................................75
Section 14.09 Governing Law................................................................75
Section 14.10 No Recourse Against Others...................................................75
Section 14.11 Successors...................................................................76
Section 14.12 Multiple Originals...........................................................76
Section 14.13 Qualification of Indenture...................................................76
Section 14.14 Table of Contents; Headings..................................................76
Section 14.15 Severability Clause..........................................................76
Section 14.16 Calculations.................................................................76
Section 14.17 Waiver of Jury Trial.........................................................76
Section 14.18 Force Majeure................................................................77
SCHEDULE A Additional Shares
EXHIBIT A Form of the Security
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INDENTURE dated as of May 17, 2007, among L-1 IDENTITY SOLUTIONS,
INC., a Delaware corporation (together with its successors and assigns, the
"COMPANY"), and THE BANK OF NEW YORK, a New York Banking corporation, as Trustee
(the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's 3.75%
Convertible Senior Notes due 2027 (the "SECURITIES") on the date hereof.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
------------------------------------------
Section 1.01 Definitions.
"ADDITIONAL INTEREST" means all amounts, if any, payable pursuant to
Section 2 of the Registration Rights Agreement and Section 7.03 hereof.
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling, controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"APPLICABLE CONVERSION RATE" means, for each $1,000 principal amount
of Securities to be converted, the sum of the Daily Conversion Rate Fractions
for each day during the 25 VWAP Trading Days during the Observation Period.
"BANKRUPTCY LAW" means Title 11 of the United States Code or any
similar federal or state law for the relief of debtors.
"BASE CONVERSION PRICE" means, per $1,000 principal amount of
Securities, a dollar amount determined by dividing $1,000 by the Base Conversion
Rate.
"BASE CONVERSION RATE" means initially 31.25, subject to adjustment
pursuant to Section 12.02.
"BENEFICIAL OWNER" means any Person who is considered a beneficial
owner of a security in accordance with Rule 13d-3 promulgated by the SEC under
the Exchange Act.
"BOARD OF DIRECTORS" means as to any Person, the board of directors
of such Person or any duly authorized committee thereof.
"BUSINESS DAY" means each day that is not a Saturday, Sunday or
other day on which banking institutions in New York, New York are authorized or
required by law to close.
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
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interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"COMMON EQUITY" of any Person means Capital Stock of such Person
that is generally entitled to (1) vote in the election of directors of such
Person or (2) if such Person is not a corporation, vote or otherwise participate
in the selection of the governing body, partners, managers or others that will
control the management or policies of such Person.
"COMMON STOCK" means the Company's common stock, par value $0.001
per share.
"COMPANY" has the meaning set forth in the introductory paragraph to
this Indenture.
"CORPORATE TRUST OFFICE" means the principal office of the Trustee
at which at any time its corporate trust business shall be administered, which
office at the dated hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 8 West, New
York, New York 10286, Attention: Corporate Trust Administration, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Company).
"CUSTODIAN" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"CONVERSION AGENT" means the office or agency appointed by the
Company where Securities may be presented for conversion. The Conversion Agent
appointed by the Company shall initially be the Trustee.
"DAILY CONVERSION VALUE" means, for each of the 25 consecutive VWAP
Trading Days during the Observation Period, 4% of the product of (1) the
Applicable Conversion Rate and (2) the Daily VWAP of a share of Common Stock on
such VWAP Trading Day.
"DAILY CONVERSION RATE FRACTION" means on any date: (i) if the Daily
VWAP on such date is less than or equal to the Base Conversion Price, the Daily
Conversion Rate Fraction for such Securities will be equal to the Base
Conversion Rate, as may be adjusted pursuant to Section 12.02, divided by 25; or
(ii) if the Daily VWAP is greater than the Base Conversion Price, the Daily
Conversion Rate Fraction will be equal to the following:
Base (Daily VWAP - Base Conversion Price) Incremental
Conversion + ------------------------------------ X Share Factor
Rate Daily VWAP Factor
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25
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"DAILY SETTLEMENT AMOUNT," means, for each of the 25 VWAP Trading
Days during the Observation Period:
(A) cash equal to the lesser of $40 and the Daily Conversion
Value; and
(B) to the extent the Daily Conversion Value exceeds $40, a number
of shares of Common Stock equal to (A) the difference between
the Daily Conversion Value and $40, divided by (B) the Daily
VWAP for such VWAP Trading Day.
"DAILY VWAP" means, for each of the 25 consecutive VWAP Trading Days
during the Observation Period, the per share volume-weighted average price as
displayed under the heading "Bloomberg VWAP" on Bloomberg page "ID.N (EQUITY)
VAP (GO)" (or its equivalent successor if such page is not available) in respect
of the period from 9:30 a.m. to 4:00 p.m. (New York City time) on such VWAP
Trading Day (or if such volume-weighted average price is unavailable, or if such
page or its equivalent is unavailable, (i) the (a) price of each trade in the
Common Stock multiplied by the number of shares in each such trade (b) divided
by the total shares traded, in each case during such VWAP Trading Day during the
regular trading session on the principal U.S. national or regional securities
exchange on which the Common Stock is listed or traded or (ii) if such price is
unavailable, the market value of one share of Common Stock on such VWAP Trading
Day using a volume-weighted method as determined by a nationally recognized
independent investment banking firm retained for such purpose by the Company).
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DEFINITIVE SECURITIES" means certificated Securities that are not
Global Securities.
"DTC" means The Depository Trust Company, its nominees and their
respective successors and assigns, or such other depository institution
hereinafter appointed by the Company pursuant to the terms of this Indenture.
"EX-DIVIDEND DATE" means, in respect of an issuance, dividend or
distribution to holders of Common Stock, the first date on which Common Stock
trades on the applicable exchange or in the applicable market, regular way,
without the right to receive the issuance, dividend or distribution in question.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"FAIR MARKET VALUE" means the amount that a willing buyer would pay
a willing seller in an arm's length transaction.
A "FUNDAMENTAL CHANGE" shall be deemed to have occurred if any of
the following occurs:
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(1) any "person" or "group" within the meaning of Section 13(d) of
the Exchange Act, other than the Company, any Subsidiary of
the Company or any employee benefit plan of the Company or any
such Subsidiary, files a Schedule TO or any other schedule,
form or report under the Exchange Act disclosing that such
person or group has become the Beneficial Owner of Common
Equity of the Company representing more than 50% of the
ordinary voting power of the Company's Common Equity; provided
that this clause (1) shall not apply to a merger of the
Company with or into a wholly-owned subsidiary of a
corporation that, immediately following the transaction or
series of transactions, has a class of common stock traded on
a U.S. national or regional securities exchange if immediately
following the transaction or series of transactions (a) the
holders of the Common Stock immediately prior to the
transaction are entitled to exercise, directly or indirectly,
50% or more of the voting power of all shares of capital stock
entitled to vote generally in the election of directors of
such parent corporation and (b) such parent corporation fully
and unconditionally guarantees all obligations of such
continuing or surviving corporation under the Securities and
this Indenture on a senior basis on terms and pursuant to a
supplemental indenture reasonably satisfactory to the Trustee;
(2) consummation of any share exchange, consolidation or merger of
the Company pursuant to which the Common Stock will be
converted into cash, securities or other property or any sale,
lease or other transfer (in one transaction or a series of
transactions) of all or substantially all of the assets of the
Company and its Subsidiaries, taken as a whole, to any Person
other than one of the Company's Subsidiaries; provided,
however, that a transaction where the holders of more than 50%
of all classes of the Company's Common Equity immediately
prior to such transaction own, directly or indirectly, more
than 50% of all classes of Common Equity of the continuing or
surviving entity or transferee or parent thereof immediately
after such event shall not be a Fundamental Change; or
(3) the Common Stock (or other Common Equity into which the
Securities are then convertible) ceases to be listed on a U.S.
national or regional securities exchange for a period of 30
consecutive Scheduled Trading Days,
provided, however, that a Fundamental Change described in clauses (1) or (2) of
the definition above shall not be deemed to have occurred if at least 90% of the
consideration received or to be received by the holders of Common Stock,
excluding cash payments for fractional shares and cash payments in respect of
statutory dissenters' rights, in connection with the transaction or transactions
constituting the Fundamental Change described in clauses (1) or (2) consists of
shares of common stock traded on a U.S. national or regional securities
exchange, or which shall be so traded when issued or converted in connection
with such Fundamental Change as described in clauses (1) or (2) of the
definition above (such securities being referred to as "PUBLICLY TRADED
SECURITIES") and as a result of such transaction or transactions the Securities
become Publicly Traded Securities into such consideration, excluding cash
4
payments for fractional shares and cash payments in respect of statutory
dissenters' rights.
"FUNDAMENTAL CHANGE PURCHASE NOTICE" has the meaning set forth in
Section 11.01(b).
"GAAP" means generally accepted accounting principles in the United
States of America set forth in the opinions and pronouncements of the (i) Public
Company Accounting Oversight Board, (ii) statements and pronouncements of the
Financial Accounting Standards Board, (iii) in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession as in effect from time to time and (iv) the rules and regulations of
the SEC governing to inclusion of financial statements in periodic reports
required to be filed pursuant to Section 13 of the Exchange Act, including
opinions and pronouncements in staff accounting bulletins and similar written
statements from the accounting staff of the SEC.
"GLOBAL SECURITIES" means certificated Securities in global form,
without interest coupons, substantially in the form of Exhibit A hereto and
registered in the name of DTC or a nominee of DTC.
"HOLDER" means the Person in whose name a Security is registered in
the Securities Register.
"INCREMENTAL SHARE FACTOR" means, initially 14, subject to
adjustment pursuant to Section 12.04.
"INDENTURE" means this Indenture, as amended or supplemented from
time to time.
"INITIAL PURCHASERS" means the several initial purchasers named in
Schedule I to the Purchase Agreement.
"INTEREST PAYMENT DATE" has the meaning set forth in Exhibit A
attached hereto.
"ISSUE DATE" means May 17, 2007.
"LAST REPORTED SALE PRICE" of the Common Stock on any date means the
closing sale price per share of the Common Stock on that date as reported in the
composite transactions for the principal U.S. national or regional securities
exchange on which the Common Stock is listed for trading. If the Common Stock is
not listed for trading on a U.S. national or regional securities exchange on the
relevant date, the Last Reported Sale Price shall be the mid-point of the last
quoted bid and ask prices for the Common Stock in the over-the-counter market on
the relevant date as reported by the National Quotation Bureau or similar
organization. If the Common Stock is not so quoted, the Last Reported Sale Price
shall be the average of the midpoint of the last bid and ask prices for the
Common Stock on the relevant date from each of at least three nationally
recognized independent investment banking firms (which may include one or more
Initial Purchasers or their Affiliates) selected by the Company for this
purpose.
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"MAJORITY OWNER" of a Person means the Person having "beneficial
ownership" (as defined in Rule 13(d)(3) under the Exchange Act) of more than 50%
of the total voting power of all shares of the respective Person's Common
Equity.
"OBSERVATION PERIOD" means, with respect to any Security, the 25
consecutive VWAP Trading Day period beginning on and including the third Trading
Day immediately following the related Conversion Date for such Security;
provided that with respect to any related Conversion Date for such Security
occurring after (i) the date of issuance by the Company of a notice of
redemption pursuant to Section 6.04, or (ii) the 28th Scheduled Trading Day
prior to the Maturity Date, the Observation Period shall be the 25 consecutive
VWAP Trading Days beginning on and including the 28th Scheduled Trading Day
prior to the applicable Redemption Date or Maturity Date, respectively.
"OFFERING MEMORANDUM" means the offering memorandum, dated May 10,
2007, relating to the offering by the Company of the Securities.
"OFFICER" means, with respect to any Person, the Chairman of the
Board (if an executive officer), the Chief Executive Officer, the President, the
Chief Operating Officer, the Chief Financial Officer, the Chief Administrative
Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary
or any Vice President of such Person (or, if the Person is a limited liability
company, its managing member).
"OFFICERS' CERTIFICATE" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be, in the case of the
Officers' Certificate referred to in Section 3.05 hereof, the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Section 14.05 hereof.
"OPINION OF COUNSEL" means a written opinion from legal counsel. The
counsel may be an employee of or counsel to the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
limited liability company, government or any agency or political subdivision
hereof or any other entity.
"PREFERRED STOCK", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however designated)
which is preferred as to the payment of dividends, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"PUBLIC ACQUIRER CHANGE OF CONTROL" means a Fundamental Change of
the type set forth in clause (2) in the definition thereof (after giving effect
to the proviso to the definition) in which the acquirer has a class of Common
Equity traded on any U.S. national securities exchange or which will be so
traded when issued or convertible in connection with such Fundamental Change
(the "PUBLIC ACQUIRER COMMON STOCK"). If an acquirer does not itself have a
class of Common Equity satisfying the foregoing requirement, it shall be deemed
to have Public Acquirer Common Stock if a corporation that directly or
6
indirectly is the Majority Owner of the acquirer has a class of Common Equity
satisfying the foregoing requirement; in such case, all references to Public
Acquirer Common Stock shall refer to such class of Common Equity.
"PURCHASE AGREEMENT" means the Purchase Agreement dated as of May
10, 2007 among the Company, L-1 Holding Co. and the representatives of the
Initial Purchasers relating to the initial purchase and sale of the Securities.
"QIB" means any "qualified institutional buyer" (as such term is
defined in Rule 144A).
"RECORD DATE" means, in respect of an issuance, dividend or
distribution to holders of Common Stock, the date fixed for determination of
holders of Common Stock entitled to receive such issuance, dividend or
distribution.
"REDEMPTION DATE" means, with respect to any redemption of
Securities, the date of redemption with respect thereto.
"REDEMPTION PRICE" has the meaning set forth in Section 6.01(b).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of the Issue Date among the representatives of the Initial
Purchasers and the Company.
"REGULAR RECORD DATE" for the payment of interest on the Securities
(including Additional Interest, if any), means the May 1 (whether or not a
Business Day) immediately preceding an Interest Payment Date on May 15 and the
November 1 (whether or not a Business Day) immediately preceding an Interest
Payment Date on November 15.
"RULE 144A" means Rule 144A under the Securities Act.
"SCHEDULED TRADING DAY" means a day that is scheduled to be a
Trading Day on the primary U.S. national securities exchange or market on which
the Common Stock is listed or admitted to trading.
"SEC" means the United States Securities and Exchange Commission.
"SECURITIES" has the meaning ascribed to it in the second
introductory paragraph of this Indenture.
"SECURITIES ACT" means the Securities Act of 1933 (15 U.S.C. xx.xx.
77a - 77aa), as amended, and the rules and regulations of the SEC promulgated
thereunder.
"SECURITIES CUSTODIAN" means the custodian with respect to the
Global Security (as appointed by DTC), or any successor Person thereto and shall
initially be the Trustee.
"SHELF REGISTRATION STATEMENT" shall have the meaning contemplated
by and in accordance with the terms of the Registration Rights Agreement.
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"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"STATED MATURITY" means May 15, 2027.
"STOCK PRICE" means, in respect of a Fundamental Change, the price
per share of Common Stock paid in connection with such Fundamental Change, which
shall be equal to (i) if such Fundamental Change is a transaction set forth in
clause (2) of the definition thereof, and holders of Common Stock receive only
cash in such transaction, the cash amount paid per share of Common Stock and
(ii) in all other cases, the average of the Last Reported Sale Prices of the
Common Stock over the five Trading Day period ending on the Trading Day
preceding the Effective Date of such Fundamental Change.
"SUBSIDIARY" means, with respect to any Person, (a) any corporation,
association or other business entity of which more than 50% of the total Common
Equity 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), (b) any partnership (i) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of such Person or (ii)
the only general partners of which are such Person or of one or more
Subsidiaries of such Person (or any combination thereof) and (c) any other
Person whose results for financial reporting purposes are consolidated with
those of such Person in accordance with GAAP.
"TIA" or "TRUST INDENTURE ACT" means the Trust Indenture Act of 1939
(15 U.S.C. xx.xx. 77aaa-77bbbb), as in effect on the date of this Indenture,
except as provided in Section 10.03.
"TRADING DAY" means any day during which (i) trading in the Common
Stock generally occurs on the principal U.S. national or regional securities
exchange in which the Common Stock is listed for trading and (ii) there is no
Market Disruption Event. "MARKET DISRUPTION EVENT" means, for the purpose of the
definition of Trading Day, the occurrence or existence during the one half-hour
period ending on the scheduled close of trading on the principal U.S. national
or regional securities exchange on which the Common Stock is listed for trading
of any material suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the stock exchange or
otherwise) in the Common Stock or in any options contracts or future contracts
relating to the Common Stock on the principal exchange on which such options or
futures are traded.
"TRADING PRICE" of the Securities on any date of determination means
the average of the secondary market bid quotations per $1,000 principal amount
of the Securities (exclusive of accrued interest) obtained by the Trustee for
$5,000,000 principal amount of the Securities at approximately 3:30 p.m., New
York City time, on such determination date from three independent nationally
recognized securities dealers selected by the Company (which may include one or
more Initial Purchasers or their Affiliates); provided that, if three such bids
cannot reasonably be obtained by the Trustee but two such bids are obtained,
then the average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Trustee, that one bid shall be used. If the
Trustee cannot reasonably obtain on any Trading Day at least one bid for
8
$5,000,000 principal amount of the Securities from an independent nationally
recognized securities dealer, then the Trading Price per $1,000 principal amount
of Securities for such Trading Day will be deemed to be less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the Applicable
Conversion Rate for such Trading Day.
"TRUST OFFICER" shall mean, when used with respect to the Trustee,
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"TRUSTEE" means the party named as such in this Indenture until a
successor replaces it and, thereafter, means the successor.
"UCC" means the Uniform Commercial Code as in effect in the State of
New York.
"VWAP TRADING DAY" means any Scheduled Trading Day on which (i)
there is no VWAP Market Disruption Event and (ii) the New York Stock Exchange
or, if the Common Stock is not quoted on the New York Stock Exchange, the
principal U.S. national or regional securities exchange on which the Common
Stock is listed or traded, is open for trading or, if the Common Stock is not so
listed, admitted for trading or quoted, any Business Day. A "VWAP TRADING DAY"
only includes those Scheduled Trading Days that have a scheduled closing time of
4:00 p.m., New York City time, or the then standard closing time for regular
trading on the relevant exchange or trading system. "VWAP MARKET DISRUPTION
EVENT" means, for purpose of the definition of VWAP Trading Day, (i) failure by
the primary U.S. national securities exchange or market on which the Common
Stock is listed or admitted to trading to open for trading during its regular
trading session or (ii) the occurrence or existence prior to 1:00 p.m., New York
City time, on any Scheduled Trading Day for the Common Stock for an aggregate
one half-hour period of any suspension or limitation imposed on trading (by
reason of movements in price exceeding limits permitted by the stock exchange or
otherwise) in the Common Stock or in any options contracts or future contracts
relating to the Common Stock.
Section 1.02 Other Definitions.
TERM DEFINED IN SECTION
-------------------------------------------------- ---------------------------
"Additional Shares" 12.03(a)
"Agent Members" 2.09(a)
"Authenticating Agent" 2.04
"Company Notice" 11.03(a)
"Company Notice Date" 11.03(a)
"Company Order" 2.04
"Daily Settlement Amount" 12.01(d)
"Daily Conversion Value" 12.01(d)
"Daily VWAP" 12.01(d)
9
TERM DEFINED IN SECTION
-------------------------------------------------- ---------------------------
"Defaulted Interest" 2.15
"Designated Institution" 12.01(f)
"Effective Date" 12.03(b)
"Event of Default" 7.01
"Conversion Date" 12.01(c)
"Conversion Obligation" 12.01(d)(i)
"Fundamental Change Purchase Date" 11.01
"Fundamental Change Purchase Notice" 11.01(b)
"Fundamental Change Purchase Price" 11.01
"Global Security Legend" 2.03(iv)
"Legal Holiday" 14.08
"Measurement Period" 12.01(a)(ii)
"Paying Agent" 2.05
"Purchase Date" 11.02(a)
"Purchase Notice" 11.02(a)
"Purchase Price" 11.02(a)
"Redemption Price" 6.01(b)
"Reference Property" 12.05
"Registrar" 2.05
"Relevant Date" 12.01(d)(iii)
"Reorganization Event" 12.05
"Restricted Securities" 2.03
"Restricted Securities Legend" 2.03
"Securities Register" 2.05
"Special Interest Payment Date" 2.15(a)
"Special Record Date" 2.15(a)
"Spin-Off" 12.02(c)
"Successor Company" 4.01(a)
Section 1.03 Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the TIA which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"COMMISSION" means the SEC.
"INDENTURE SECURITIES" means the Securities.
"INDENTURE SECURITY HOLDER" means a Holder.
"INDENTURE TO BE QUALIFIED" means this Indenture.
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee.
"OBLIGOR" on the Securities means the Company, and any other
successor obligor on the Securities.
10
All other TIA terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by SEC rule
have the meanings assigned to them by such definitions.
Section 1.04 Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in
the plural include the singular;
(f) the principal amount of any non-interest bearing or
other discount security at any date shall be the principal amount thereof that
would be shown on a balance sheet of the issuer dated such date prepared in
accordance with GAAP; and
(g) the principal amount of any Preferred Stock shall be the
greater of (i) the maximum liquidation value of such Preferred Stock and (ii)
the maximum mandatory redemption or mandatory repurchase price with respect to
such Preferred Stock.
ARTICLE II
THE SECURITIES
--------------
Section 2.01 Title; Amount and Issue of Securities; Principal and
Interest. (a) The Securities shall be known and designated as the "3.75%
Convertible Senior Notes due 2027" of the Company. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is initially limited to $175,000,000, except for Securities
authenticated and delivered upon registration of, transfer of, or in exchange
for, or in lieu of other Securities pursuant to Section 2.03, 2.04, 2.08, 2.09,
2.10, 2.11, 2.13, 6.07, 10.05, 11.03, or 12.01; provided that additional
Securities may be issued in an unlimited aggregate principal amount from time to
time thereafter as set forth pursuant to Section 2.04 but only if any such
additional Securities are considered part of the same issue of Securities as the
Securities issued and sold pursuant to the Offering Memorandum for U.S. federal
income tax purposes. The Securities shall be issuable in denominations of $1,000
or multiples thereof.
(b) The Securities shall mature on May 15, 2027 unless
earlier converted, redeemed or repurchased in accordance with the provisions
hereof.
(c) Interest on the Securities shall accrue from and
including the date specified on the face of such Securities until the principal
thereof is paid or made available for payment. Interest shall be payable
11
semiannually in arrears on May 15 and November 15 in each year, commencing
November 15, 2007.
(d) A Holder of any Security at 5:00 p.m., New York City
time, on a Regular Record Date shall be entitled to receive interest (including
any Additional Interest), on such Security on the corresponding Interest Payment
Date, notwithstanding the conversion of such Securities at any time after the
close of business on such Regular Record Date. Securities surrendered for
conversion during the period after 5:00 p.m., New York City time, on any Regular
Record Date to 9:00 a.m., New York City time, on the corresponding Interest
Payment Date must be accompanied by payment of an amount equal to the interest
(including any Additional Interest) that the Holder is to receive on the
Securities. Notwithstanding the foregoing, no such payment of interest
(including any Additional Interest) need be made by any converting Holder (i) if
the Company has called the Securities for redemption, (ii) if the Company
specified a Fundamental Change Purchase Date that is after a Regular Record Date
and on or prior to the third Scheduled Trading Day following the corresponding
Interest Payment Date, or (iii) to the extent of any overdue interest (including
any Additional Interest) existing at the time of conversion of such Security.
Except as described above, no interest or Additional Interest on converted
Securities will be payable by the Company on any Interest Payment Date
subsequent to the date of conversion, and delivery of shares of Common Stock or
the combination of cash and shares of Common Stock, if applicable, pursuant to
Article 12 hereunder, together with any cash payment for any fractional share,
upon conversion will be deemed to satisfy in full the Company's obligation to
pay the principal amount of the Securities and accrued and unpaid interest and
Additional Interest, if any, to, but not including, the related Conversion Date.
(e) Principal of, and interest (including Additional
Interest, if any) on, Global Securities shall be payable to DTC in immediately
available funds.
(f) Principal of Definitive Securities shall be payable at
the office or agency of the Company maintained for such purpose, which initially
shall be the Corporate Trust Office of the Trustee. Interest (including
Additional Interest, if any), on Definitive Securities will be payable (i) to
Holders having an aggregate principal amount of $5,000,000 or less, by check
mailed to the Holders of these Securities and (ii) to Holders having an
aggregate principal amount of more than $5,000,000, either by check mailed to
each Holder or, upon application by a Holder to the Registrar not later than the
relevant Regular Record Date, by wire transfer in immediately available funds to
such Holder's account within the United States, which application shall remain
in effect until the Holder notifies, in writing, the Registrar to the contrary.
Section 2.02 Form of Securities.
(a) Except as otherwise provided pursuant to this Section
2.02, the Securities are issuable in fully registered form without coupons in
substantially the form of Exhibit A hereto, with such applicable legends as are
provided for in Section 2.03. The Securities are not issuable in bearer form.
The terms and provisions contained in the form of Security shall constitute, and
are hereby expressly made, a part of this Indenture and to the extent
applicable, the Company and the Trustee, by their execution and delivery of this
Indenture, expressly agree to such terms and provisions and to be bound thereby.
Any of the Securities may have such letters, numbers or other marks of
12
identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Securities may be
listed or designated for issuance, or to conform to usage.
(b) The Securities shall be issued initially in the form of
one or more permanent Global Securities, with the applicable legends as provided
in Section 2.03. Each Global Security shall be duly executed by the Company and
authenticated and delivered by the Trustee, and shall be registered in the name
of DTC or its nominee and retained by the Trustee, as Securities Custodian, at
its Corporate Trust Office, for credit to the accounts of the Agent Members
holding the Securities evidenced thereby. The aggregate principal amount of the
Global Securities may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as Securities Custodian, and of DTC or its
nominee, as hereinafter provided.
Section 2.03 Legends. Each Security issued hereunder shall, upon
issuance, bear the legend set forth in Section 2.03(i), and each Common Stock
certificate representing shares of the Common Stock issued upon conversion of
any Security issued hereunder, shall, upon issuance, unless as otherwise set
forth below, bear the legend set forth in Section 2.03(ii) (each such legend, a
"RESTRICTED SECURITIES LEGEND"), and such legend shall not be removed except as
provided in Section 2.03(iii). Each Security that bears or is required to bear
the Restricted Securities Legend set forth in Section 2.03(i) (together with
each Common Stock certificate representing shares of the Common Stock issued
upon conversion of such Security that bears or is required to bear the
Restricted Securities Legend set forth in Section 2.03(ii), collectively, the
"RESTRICTED SECURITIES") shall be subject to the restrictions on transfer set
forth in this Section 2.03 (including the Restricted Securities Legend set forth
below), and the Holder of each such Restricted Security, by such Holder's
acceptance thereof, shall be deemed to have agreed to be bound by all such
restrictions on transfer.
As used in Section 2.03, the term "transfer" encompasses any sale,
pledge, transfer or other disposition whatsoever of any Restricted Security.
(i) Restricted Securities Legend for Securities.
Except as provided in Section 2.03(iii), any certificate evidencing such
Security (and all Securities issued in conversion therefor or substitution
thereof, other than stock certificates representing shares of the Common
Stock, if any, issued upon conversion thereof which shall bear the legend
set forth in Section 2.03(ii), if applicable) shall bear a Restricted
Securities Legend in substantially the following form:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
13
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")); (2) AGREES ON ITS OWN
BEHALF AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR ANY OF
THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY, PRIOR TO THE
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY
UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO
BE EFFECTIVE AT THE TIME OF SUCH TRANSFER), (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, IN COMPLIANCE
WITH RULE 144A TO A PERSON IT REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A OR (D) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUER'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, AND IN ANY CASE A CERTIFICATION AND/OR OTHER
INFORMATION SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT IT WILL
DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(B)
ABOVE OR UPON ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION)."
(ii) Restricted Securities Legend for the Common Stock
Issued Upon Conversion of the Securities. Each stock certificate
representing Common Stock issued upon conversion of Securities bearing a
Restricted Securities Legend will, subject to the availability of a Shelf
Registration Statement and registration thereunder as set forth in the
Registration Rights Agreement, bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE OR
OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR
14
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
SUCH REGISTRATION. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF,
(1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT ("RULE 144A")); (2) AGREES ON ITS OWN
BEHALF, AND ON BEHALF OF ANY INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED
SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO
THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS SECURITY
UNDER RULE 144(k) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION),
ONLY (A) TO THE ISSUER, (B) PURSUANT TO A REGISTRATION STATEMENT THAT HAS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO
BE EFFECTIVE AT THE TIME OF SUCH TRANSFER) OR (C) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE ISSUER'S AND THE TRANSFER AGENT'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, AND IN ANY CASE A CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM; AND (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE REMOVED
UPON THE EARLIER OF THE TRANSFER OF THIS SECURITY PURSUANT TO CLAUSE 2(B)
ABOVE OR UPON ANY TRANSFER OF THIS SECURITY UNDER RULE 144 UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION)."
(iii) Removal of the Restricted Securities Legends. The
Restricted Securities Legend may be removed from any Security or any
Common Stock certificate representing shares of the Common Stock issued
upon conversion of any Security if there is delivered to the Company such
satisfactory evidence, which may include an opinion of independent
counsel, as may be reasonably required by the Company, that neither such
legend nor the restrictions on transfer set forth therein are required to
ensure that transfers of such Security or shares of the Common Stock
issued upon conversion of Securities, as the case may be, will not violate
the registration requirements of the Securities Act or the qualification
requirements under any state securities laws. Upon provision of such
satisfactory evidence, at the written direction of the Company, (x) in the
case of a Security, the Trustee shall authenticate and deliver in exchange
for such Security another Security or Securities having an equal aggregate
principal amount that do not bear such legend or (y) in the case of a
Common Stock certificate representing shares of the Common Stock, the
transfer agent for the Common Stock shall authenticate and deliver in
exchange for the Common Stock certificate or certificates representing
15
such shares of Common Stock bearing such legend, one or more new Common
Stock certificates representing a like aggregate number of shares of
Common Stock that do not bear such legend. If the Restricted Securities
Legend has been removed from a Security or Common Stock certificates
representing shares of the Common Stock issued upon conversion of any
Security as provided above, no other Security issued in exchange for all
or any part of such Security, or no other Common Stock certificates issued
in exchange for such Common Stock, shall bear such legend, unless the
Company has reasonable cause to believe that such other Security is a
"restricted security" (or such shares of Common Stock are "restricted
securities") within the meaning of Rule 144 and instructs the Trustee in
writing to cause a Restricted Securities Legend to appear thereon.
Any Security (or Security issued in conversion or substitution
therefor) as to which the conditions for removal of the Restricted Securities
Legend set forth in Section 2.03(i) as set forth therein have been satisfied
may, upon surrender of such Security for exchange to the Registrar in accordance
with the provisions of Section 2.08, be exchanged for a new Security or
Securities, of like tenor and aggregate principal amount, which shall not bear
the Restricted Securities Legend required by Section 2.03(i).
Any Common Stock certificate representing shares of Common Stock
issued upon conversion of any Security as to which the conditions for removal of
the Restricted Securities Legend set forth in Section 2.03(ii) have been
satisfied may, upon surrender of the Common Stock certificates representing such
shares of Common Stock for exchange in accordance with the procedures of the
transfer agent for the Common Stock, be exchanged for a new Common Stock
certificate or certificates representing a like aggregate number of shares of
Common Stock, which shall not bear the Restricted Securities Legend.
(iv) Global Security Legend. Each Global Security shall
also bear the following legend (the "GLOBAL SECURITY LEGEND") on the face
thereof:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK,
NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
16
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET
FORTH IN THE INDENTURE REFERRED TO IN THE TERMS OF SECURITIES ATTACHED
HERETO."
(v) Legend for Definitive Securities. Definitive
Securities, in addition to the legend set forth in Section 2.03(i), will
also bear a legend substantially in the following form:
"THIS SECURITY WILL NOT BE ACCEPTED IN EXCHANGE FOR A BENEFICIAL INTEREST
IN A GLOBAL SECURITY UNLESS THE HOLDER OF THIS SECURITY, SUBSEQUENT TO
SUCH EXCHANGE, WILL HOLD NO SECURITIES."
Section 2.04 Execution and Authentication. One Officer shall sign
the Securities for the Company by manual or facsimile signature. If an Officer
whose signature is on a Security no longer holds that office at the time the
Trustee authenticates the Security, the Security shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of the
Trustee manually authenticates the Security. The signature of the Trustee on a
Security shall be conclusive evidence that such Security has been duly and
validly authenticated and issued under this Indenture. A Security shall be dated
the date of its authentication.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities executed by the Company in
an unlimited aggregate principal amount to the Trustee for authentication,
together with a written order of the Company signed by two Officers or by an
Officer and an Assistant Secretary of the Company (the "COMPANY ORDER") for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as in
this Indenture provided and not otherwise. All Securities issued on the Issue
Date shall be identical in all respects with any such Securities authenticated
and delivered thereafter, other than issue dates, the date from which interest
accrues, appropriate CUSIP numbers or other identifying notations and any
changes relating thereto. Notwithstanding anything to the contrary contained in
this Indenture, subject to Section 2.12, all Securities issued under this
Indenture shall vote and consent together on all matters as one class and no
series of Securities will have the right to vote or consent as a separate class
on any matter.
The Trustee may appoint an agent (the "AUTHENTICATING AGENT")
reasonably acceptable to the Company to authenticate the Securities. Initially,
the Trustee will act as the Authenticating Agent. Any such instrument shall be
evidenced by an instrument signed by a Trust Officer of the Trustee, a copy of
which shall be furnished to the Company. Unless limited by the terms of such
appointment, any such Authenticating Agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication by the
17
Trustee includes authentication by the Authenticating Agent. An Authenticating
Agent has the same rights as any Registrar, Paying Agent or agent for service of
notices and demands.
In case the Company, pursuant to Article 4, shall be consolidated or
merged with or into, or shall convey, transfer or lease all or substantially all
of its properties and assets to, any Person, and the Successor Company, if not
the Company, shall have executed an indenture supplemental hereto with the
Trustee pursuant to Article 4, any of the Securities authenticated or delivered
prior to such consolidation, merger, conveyance, transfer or lease may, from
time to time, at the request of the Successor Company, be exchanged for other
Securities executed in the name of the Successor Company with such changes in
phraseology and form as may be appropriate, but otherwise in substance of like
tenor as the Securities surrendered for such exchange and of like principal
amount; and the Trustee, upon Company Order of the Successor Company, shall
authenticate and deliver Securities as specified in such order for the purpose
of such exchange. If Securities shall at any time be authenticated and delivered
in any new name of a Successor Company pursuant to this Section 2.04 in exchange
or substitution for or upon registration of transfer of any Securities, such
Successor Company, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time outstanding for
Securities authenticated and delivered in such new name.
Section 2.05 Registrar and Paying Agent. The Company shall maintain
an office or agency where Securities may be presented for registration of
transfer or for exchange (the "REGISTRAR") and an office or agency where
Securities may be presented for payment (the "PAYING AGENT"). The Registrar
shall keep a register of the Securities and of their transfer and exchange (the
"SECURITIES REGISTER"). The Company may have one or more co-registrars and one
or more additional paying agents. The term "Paying Agent" includes any
additional paying agent and the term "Registrar" includes any co-registrar.
The Company shall enter into an appropriate agency agreement with
any Registrar or Paying Agent not a party to this Indenture, which shall
incorporate the terms of the TIA. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Company shall notify the
Trustee of the name and address of each such agent. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 8.07. The
Company or any of its domestically organized, wholly owned Subsidiaries may act
as Paying Agent, Registrar or transfer agent.
The Company initially appoints the Trustee as Registrar and Paying
Agent for the Securities. The Company may remove any Registrar or Paying Agent
upon written notice to such Registrar or Paying Agent and to the Trustee;
provided, however, that no such removal shall become effective until (i)
acceptance of any appointment by a successor as evidenced by an appropriate
agreement entered into by the Company and such successor Registrar or successor
Paying Agent, as the case may be, and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as Registrar or Paying
Agent until the appointment of a successor in accordance with clause (i) above.
The Registrar or Paying Agent may resign at any time upon written notice to the
Company and the Trustee.
18
Section 2.06 Paying Agent to Hold Money in Trust. By no later than
11:00 a.m., New York City time, on the date on which any principal of, or
interest (including any Additional Interest) on, any Security is due and
payable, the Company shall deposit with the Paying Agent a sum sufficient in
immediately available funds to pay such principal, or interest (including any
Additional Interest), when due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that such Paying Agent shall hold
in trust for the benefit of Holders or the Trustee all money held by such Paying
Agent for the payment of principal of, or interest (including any Additional
Interest) on, the Securities and shall notify the Trustee in writing of any
default by the Company in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money held by it as
Paying Agent and hold it as a separate trust fund. The Company at any time may
require a Paying Agent (other than the Trustee) to pay all money held by it to
the Trustee and to account for any funds disbursed by such Paying Agent. Upon
complying with this Section 2.06, the Paying Agent (if other than the Company or
a Subsidiary) shall have no further liability for the money delivered to the
Trustee. Upon any bankruptcy, reorganization or similar proceeding with respect
to the Company, the Trustee shall serve as Paying Agent for the Securities.
Section 2.07 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 and shall otherwise comply with TIA ss. 312(a).
If the Trustee is not the Registrar, or to the extent otherwise required under
the TIA, the Company shall furnish or cause the Registrar to furnish to the
Trustee, in writing at least five Business Days before each Interest Payment
Date and at such other times as the Trustee may request in writing, a list in
such form and as of such date as the Trustee may reasonably require of the names
and addresses of Holders and the Company shall otherwise comply with TIA ss.
312(a).
Section 2.08 General Provisions Relating to Transfer and Exchange.
The Securities are issuable only in registered form. A Holder may transfer a
Security only by written application to the Registrar stating the name of the
proposed transferee and otherwise complying with the terms of this Indenture. No
such transfer shall be effected until, and such transferee shall succeed to the
rights of a Holder only upon, final acceptance and registration of the transfer
by the Registrar in the Securities Register. Furthermore, any Holder of a Global
Security shall, by acceptance of such Global Security, agree that transfers of
beneficial interests in such Global Security may be effected only through a
book-entry system maintained by the Holder of such Global Security (or its
agent) and that ownership of a beneficial interest in the Global Security shall
be required to be reflected in a book-entry.
When Securities are presented to the Registrar with a request to
register the transfer or to exchange them for an equal aggregate principal
amount of Securities of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its requirements for
such transactions are met (including that such Securities are duly endorsed or
accompanied by a written instrument of transfer duly executed by the Holder
thereof or by an attorney who is authorized in writing to act on behalf of the
Holder). Subject to Section 2.04, to permit registrations of transfers and
exchanges, the Company shall execute and the Trustee shall authenticate
Securities at the Registrar's request. No service charge shall be made for any
registration of transfer or exchange or redemption of the Securities, but the
19
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge required by law or permitted under the terms of this
Indenture.
Neither the Company nor the Registrar shall be required to exchange
or register a transfer of any Securities:
(a) selected for redemption under Article 6 or, if a portion
of any Security is selected for redemption, the portion thereof selected for
redemption;
(b) surrendered for conversion or, if a portion of any
Security is surrendered for conversion, the portion thereof surrendered for
conversion; or
(c) in certificated form for a period of 15 days prior to
mailing a notice of redemption under Article 6.
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 Security (including any transfers between beneficial owners of any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
Section 2.09 Book-Entry Provisions for the Global Securities. (a)
The Global Securities initially shall:
(i) be registered in the name of DTC (or a nominee
thereof);
(ii) be delivered to the Trustee as Securities
Custodian;
(iii) bear the Restricted Securities Legend set forth in
Section 2.03(i); and
(iv) bear the Global Security Legend set forth in
Section 2.03(iv).
Members of, or participants in, DTC ("AGENT MEMBERS") shall have no
rights under this Indenture with respect to any Global Security held on their
behalf by DTC, or the Trustee as its custodian, or under such Global Security,
and DTC may be 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 contained herein shall
prevent the Company, the Trustee or any agent of the Company or Trustee from
giving effect to any written certification, proxy or other authorization
furnished by DTC or impair, as between DTC and the Agent Members, the operation
of customary practices governing the exercise of the rights of a Holder of any
Security.
20
(b) The 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 Securities.
(c) A Global Security may not be transferred, in whole or in
part, to any Person other than DTC (or a nominee thereof) or to a successor
thereof (or such successor's nominee), and no such transfer to any such other
Person may be registered. Beneficial interests in a Global Security may be
transferred in accordance with the rules and procedures of DTC and the
provisions of Section 2.10.
(d) If at any time:
(i) DTC notifies the Company in writing that it is
unwilling or unable to continue to act as depositary for the Global
Securities and a successor depositary for the Global Securities is not
appointed by the Company within 90 days of such notice;
(ii) DTC ceases to be registered as a "clearing agency"
under the Exchange Act and a successor depositary for the Global
Securities is not appointed by the Company within 90 days of such
cessation;
(iii) the Company, at its option, notifies the Trustee
in writing that it elects to cause the issuance of the Definitive
Securities under this Indenture in exchange for all or any part of the
Securities represented by a Global Security or Global Securities, subject
to the procedures of DTC; or
(iv) an Event of Default has occurred and is continuing
and the Registrar has received a request from DTC for the issuance of
Definitive Securities in exchange for such Global Security or Global
Securities;
the Securities Custodian shall surrender such Global Security or Global
Securities to the Trustee for cancellation and the Company shall execute, and
the Trustee, upon receipt of an Officers' Certificate and Company Order for the
authentication and delivery of Securities, shall authenticate and deliver in
exchange for such Global Security or Global Securities, Definitive Securities in
an aggregate principal amount equal to the aggregate principal amount of such
Global Security or Global Securities. Such Definitive Securities shall be
registered in such names as DTC (or any nominee thereof) shall identify in
writing as the beneficial owners of the Securities represented by such Global
Security or Global Securities.
(e) Notwithstanding the foregoing, in connection with any
transfer of beneficial interests in a Global Security to the beneficial owners
thereof pursuant to Section 2.09(d), the Registrar shall reflect on its books
and records the date and a decrease in the principal amount of such Global
Security in an amount equal to the principal amount of the beneficial interests
in such Global Security to be transferred.
21
Section 2.10 Special Transfer Provisions. Unless a Security is no
longer a Restricted Security, the following provisions shall apply to any sale,
pledge or other transfer of such Securities:
(a) Transfer of Securities to a QIB. The following
provisions shall apply with respect to the registration of any proposed transfer
of Securities to a QIB:
(i) If the Securities to be transferred consist of a
beneficial interest in the Global Securities, the transfer of such
interest may be effected only through the book-entry systems maintained by
DTC.
(ii) If the Securities to be transferred consist of
Definitive Securities, the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating (or has otherwise advised the
Company and the Registrar in writing) that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has signed
a certification stating or has otherwise advised the Company and the
Registrar in writing that:
(A) it is purchasing the Securities for its own
account or an account with respect to which it exercises sole investment
discretion;
(B) it and any such account is a QIB within the
meaning of Rule 144A;
(C) it is aware that the sale to it is being made
in reliance on Rule 144A;
(D) it acknowledges that it has received such
information regarding the Company as it has requested pursuant to Rule
144A or has determined not to request such information; and
(E) it is aware that the transferor is relying
upon its foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
(b) General. By its acceptance of any Security bearing the
Restricted Securities Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and agrees
that it will transfer such Security only as provided in this Indenture. The
Registrar shall not register a transfer of any Security unless such transfer
complies with the restrictions on transfer of such Security set forth in this
Indenture. The Registrar shall be entitled to receive and rely on written
instructions from the Company verifying that such transfer complies with such
restrictions on transfer. In connection with any transfer of Securities, each
Holder agrees by its acceptance of the Securities to furnish the Registrar or
the Company such certifications, legal opinions or other information as either
of them may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or a transaction not subject to, the registration
requirements of the Securities Act; provided that the Registrar shall not be
required to determine (but may rely on a determination made by the Company with
22
respect to) the sufficiency of any such certifications, legal opinions or other
information.
The Registrar shall retain copies of all certifications, letters,
notices and other written communications received pursuant to Section 2.09
hereof or this Section 2.10. The Company shall have the right to inspect and
make copies of all such letters, notices or other written communications at any
reasonable time upon the giving of reasonable written notice to the Registrar.
Section 2.11 Mutilated, Destroyed, Lost or Wrongfully Taken
Securities. If a mutilated Security is surrendered to the Registrar or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the requirements of Section 8-405 of the UCC are met,
such that the Holder (i) notifies the Company or the Trustee within a reasonable
time after such Holder has notice of such loss, destruction or wrongful taking
and the Registrar has not registered a transfer prior to receiving such
notification, (ii) makes such request to the Company or Trustee prior to the
Security being acquired by a protected purchaser as defined in Section 8-303 of
the UCC and (iii) satisfies any other reasonable requirements of the Trustee.
Such Holder shall furnish an indemnity bond sufficient in the judgment of the
Company and the Trustee to protect the Company, the Trustee, the Paying Agent
and the Registrar from any loss which any of them may suffer if a Security is
replaced, and, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a protected purchaser, the Company shall execute
and upon Company Order the Trustee shall authenticate and make available for
delivery, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or wrongfully taken Security, a new Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or wrongfully taken
Security has become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 2.11, the
Company may require the payment by the Holder of a sum sufficient to cover any
tax or other governmental charge that may be imposed in relation thereto and any
other expenses (including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant to this Section 2.11 in lieu of
any mutilated, destroyed, lost or wrongfully taken Security shall constitute an
original additional contractual obligation of the Company and any other obligor
upon the Securities, whether or not the mutilated, destroyed, lost or wrongfully
taken Security shall be at any time enforceable by anyone, and shall be entitled
to all benefits of this Indenture equally and ratably with any and all other
Securities duly issued hereunder.
The provisions of this Section 2.11 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or wrongfully taken
Securities.
23
Section 2.12 Outstanding Securities. Securities outstanding at any
time are all Securities authenticated by the Trustee except for those cancelled
by it, those delivered to it for cancellation and those described in this
Section 2.12 as not outstanding. A Security does not cease to be outstanding in
the event the Company or an Affiliate of the Company holds the Security;
provided, however, that (i) for purposes of determining which Securities are
outstanding for consent or voting purposes hereunder, the provisions of Section
14.06 shall apply and (ii) in determining whether the Trustee shall be protected
in making a determination whether the Holders of the requisite principal amount
of outstanding Securities are present at a meeting of Holders of Securities for
quorum purposes or have consented to or voted in favor of any request, demand,
authorization, direction, notice, consent, waiver, amendment or modification
hereunder, or relying upon any such quorum, consent or vote, only Securities
which a Trust Officer of the Trustee actually knows to be held by the Company or
an Affiliate of the Company shall not be considered outstanding.
If a Security is replaced or paid pursuant to Section 2.11, it
ceases to be outstanding unless the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a protected
purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a Redemption Date or at Stated Maturity, money
sufficient to pay all principal and interest payable on that date with respect
to the Securities (or portions thereof) to be redeemed or maturing, as the case
may be, then on and after that date such Securities (or portions thereof) cease
to be outstanding and interest (including any Additional Interest) on them
ceases to accrue.
Section 2.13 Temporary Securities. In the event that Definitive
Securities are to be issued under the terms of this Indenture, until such
Definitive Securities are ready for delivery, the Company may prepare and upon
receipt of a Company Order the Trustee shall authenticate temporary Securities.
Temporary Securities shall be substantially in the form of Definitive Securities
but may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and upon
receipt of a Company Order the Trustee shall authenticate Definitive Securities.
After the preparation of Definitive Securities, the temporary Securities shall
be convertible for Definitive Securities upon surrender of the temporary
Securities at any office or agency maintained by the Company for that purpose
and such exchange shall be without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute,
and the Trustee shall authenticate and make available for delivery in exchange
therefor, one or more Definitive Securities representing an equal principal
amount of Securities. Until so exchanged, the Holder of temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as a
Holder of Definitive Securities.
Section 2.14 Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar, the Conversion Agent
and the Paying Agent shall forward to the Trustee any Securities surrendered to
them for registration of transfer, exchange, conversion or payment. The Trustee
and no one else shall cancel all Securities surrendered for registration of
transfer, exchange, conversion, payment or cancellation and dispose of such
Securities in accordance with its internal policies and customary procedures
including delivery of a certificate upon its request therefor describing such
Securities disposed of (subject to the record retention requirements of the
24
Exchange Act). The Company may not issue new Securities to replace Securities it
has paid for or converted or delivered to the Trustee for cancellation for any
reason other than in connection with a transfer or exchange.
At such time as all beneficial interests in a Global Security have
either been converted for Definitive Securities, transferred, redeemed,
repurchased, converted or canceled, such Global Security shall be returned by
the Securities Custodian to the Trustee for cancellation or retained and
canceled by the Trustee. At any time prior to such cancellation, if any
beneficial interest in a Global Security is exchanged for Definitive Securities,
transferred in exchange for an interest in another Global Security, redeemed,
repurchased, converted or canceled, the principal amount of Securities
represented by such Global Security shall be reduced and an adjustment shall be
made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Security) with respect to such Global Security, by the
Trustee or the Securities Custodian, to reflect such reduction.
Section 2.15 Payment of Interest; Defaulted Interest. Interest
(including any Additional Interest) on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name such Security (or one or more predecessor
Securities) is registered at the close of business on the Regular Record Date
for such payment at the office or agency of the Company maintained for such
purpose pursuant to Section 2.05.
Any interest on any Security which is payable, but is not paid when
the same becomes due and payable and such nonpayment continues for a period of
30 days, shall forthwith cease to be payable to the Holder on the Regular Record
Date, and such interest and (to the extent lawful) interest on such interest at
the rate borne by the Securities (such interest and interest thereon herein
collectively called "DEFAULTED INTEREST") shall be paid by the Company at its
election, in each case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on a Special
Record Date (as defined below) for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Security
and the date (not less than 30 days after such notice) of the proposed payment
(the "SPECIAL INTEREST PAYMENT DATE"), and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a record date (the "SPECIAL RECORD
DATE") for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the Special Interest Payment Date and
not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date, and in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special Record
Date and Special Interest Payment Date therefor to be given in the manner
provided for in Section 14.02, not less than 10 days prior to such Special
25
Record Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date and Special Interest Payment Date therefor having been so
given, such Defaulted Interest shall be paid on the Special Interest Payment
Date to the Persons in whose names the Securities (or their respective
predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice is given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.15, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
(including any Additional Interest) accrued and unpaid, and to accrue, which
were carried by such other Security.
Section 2.16 Computation of Interest. Interest (including any
Additional Interest) on the Securities shall be computed on the basis of a
360-day year of twelve 30-day months.
Section 2.17 CUSIP and ISIN Numbers. The Company in issuing the
Securities may use "CUSIP" and "ISIN" numbers (if then generally in use) and, if
so, the Trustee shall use "CUSIP" and "ISIN" numbers in notices of redemption as
a convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such CUSIP or ISIN numbers. The Company shall promptly notify the
Trustee in writing of any change in the CUSIP and ISIN numbers.
ARTICLE III
COVENANTS
---------
Section 3.01 Payment of Securities. The Company shall promptly pay
the principal of, and interest (including any Additional Interest) on, the
Securities on the dates and in the manner provided in the Securities and in this
Indenture. Principal and interest (including any Additional Interest) shall be
considered paid on the date due if by 11:00 a.m., New York City time, on such
date the Trustee or the Paying Agent holds in accordance with this Indenture
immediately available funds sufficient to pay all principal and interest
(including any Additional Interest) then due.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Securities, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
26
Notwithstanding anything to the contrary contained in this
Indenture, the Company may, to the extent it is required to do so by law, deduct
or withhold income or other similar taxes imposed by the United States of
America from principal or interest (including any Additional Interest) payments
hereunder.
Section 3.02 Maintenance of Office or Agency. The Company will
maintain an office or agency where the Securities may be presented or
surrendered for payment, where, if applicable, the Securities may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served to the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind any such designation. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such other office or agency.
Section 3.03 Corporate Existence. Except as otherwise provided in
Article 4 the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect (i) its existence and (ii) the
material rights (charter and statutory), licenses and franchises of the Company,
except, in the case of clause (ii), to the extent the Company otherwise
reasonably determines it no longer desirable.
Section 3.04 Payment of Taxes and Other Claims. The Company will pay
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (i) all material taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (ii) all lawful claims for labor,
materials and supplies, which, if unpaid, might by law become a material
liability or lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and for which appropriate reserves, if necessary (in the good faith
judgment of management of the Company), are being maintained in accordance with
GAAP or where the failure to effect such payment will not be disadvantageous to
the Holders.
Section 3.05 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, one of the signers of which shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Company, stating that in the course of the performance by the signers of
their duties as Officers of the Company they would normally have knowledge of
any Default or Event of Default and whether or not the signers know of any
Default or Event of Default that occurred during such period. If they do, the
certificate shall describe each Default or Event of Default, its status and the
27
action the Company is taking or proposes to take with respect thereto. The
Company also shall comply with TIA ss. 314(a)(4).
Section 3.06 Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
Section 3.07 Statement by Officers as to Default. The Company shall
deliver to the Trustee, within 30 days after the Company becomes aware of the
occurrence of any Event of Default or Default, an Officers' Certificate setting
forth the details of such events which would constitute an Event of Default or
Default, its status and the action which the Company proposes to take with
respect thereto.
Section 3.08 Additional Interest. If Additional Interest is payable
by the Company pursuant to the Registration Rights Agreement or Section 7.03,
the Company shall deliver to the Trustee an Officers' Certificate to that effect
stating (i) the amount of such Additional Interest that is payable and (ii) the
date on which such Additional Interest is payable. Unless and until a Trust
Officer of the Trustee receives such a certificate, the Trustee may assume
without inquiry that no Additional Interest is payable. If the Company has paid
Additional Interest directly to the persons entitled to it, the Company shall
deliver to the Trustee an Officers' Certificate setting forth the particulars of
such payment.
ARTICLE IV
SUCCESSOR COMPANY
-----------------
Section 4.01 Consolidation, Merger and Sale of Assets. The Company
shall not consolidate with or merge with or into, or convey, transfer or lease
all or substantially all its properties and assets to, another Person, unless:
(a) the resulting, surviving or transferee Person (the
"SUCCESSOR Company"), if not the Company, shall expressly assume, by
supplemental indenture, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the
Securities, this Indenture and, to the extent then still operative, the
Registration Rights Agreement; and
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing.
For purposes of this Section 4.01, the conveyance, transfer or lease
of all or substantially all of the properties and assets of one or more
Subsidiaries of the Company, which properties and assets, if held by the Company
instead of such Subsidiaries, would constitute all or substantially all of the
properties and assets of the Company on a consolidated basis, shall be deemed to
be the transfer of all or substantially all of the properties and assets of the
Company, as applicable.
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The Successor Company will succeed to, and be substituted for, and
may exercise every right and power of the Company under this Indenture and the
Company shall have no further obligation under the Securities, this Indenture
and, to the extent then still operative, the Registration Rights Agreement, but,
in the case of a lease of all or substantially all its properties and assets,
the Company will not be released from the obligation to pay the principal of,
and interest (including any Additional Interest) on, the Securities.
ARTICLE V
REPORTING OBLIGATIONS
---------------------
Section 5.01 Reporting Obligations. (a) The Company shall deliver to
the Trustee, within 15 days after filing with the SEC, copies of its annual
reports and of information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act.
(b) In the event and for as long as the Company is not
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act:
(i) it shall continue to provide the Trustee with
reports containing substantially the same information as would have been
required to be filed with the SEC had the Company continued to have been
subject to such reporting requirements and also mail such documents to
each Holder at such Holder's registered address, upon the request of any
Holder or beneficial holder of the Securities or the Common Stock issued
upon conversion thereof. In such event, such reports shall be provided at
the times the Company would have been required to provide reports had it
continued to have been subject to Section 13 or 15(d) of the Exchange Act;
and
(ii) it shall make available, to each Holder or
beneficial holder of Securities or Common Stock in connection with any
sale thereof and any prospective purchaser of Securities or Common Stock
designated by such Holder or beneficial holder, upon request, the
information required pursuant to Rule 144A(d)(4) under the Securities Act
and it will take such further action as any Holder or beneficial holder of
such Securities or Common Stock may reasonably request, all to the extent
required from time to time to enable such Holder or beneficial holder to
sell its Securities or Common Stock without registration under the
Securities Act within the limitation of the exemption provided by Rule
144A, as such Rule may be amended from time to time.
(c) Delivery of reports, information and other documents
under this Section 5.01 to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
29
Section 5.02 Reporting in Compliance with TIA. The Company also
shall comply with the other provisions of Section 314(a) of the Trust Indenture
Act.
ARTICLE VI
REDEMPTION OF SECURITIES
------------------------
Section 6.01 Optional Redemption.
(a) Prior to May 20, 2012, the Securities shall not be
redeemable.
(b) On or after May 20, 2012, subject to the terms and
conditions of this Article 6, the Company may, at its option, redeem at any time
for cash all or a portion of the Securities, at a price (the "REDEMPTION PRICE")
equal to 100% of the principal amount of Securities to be redeemed, plus accrued
and unpaid interest (including any Additional Interest) to but excluding the
Redemption Date.
(c) In the event that the Redemption Date occurs after a
Regular Record Date for the payment of interest and on or prior to the related
Interest Payment Date, the Redemption Price for any such Securities to be
redeemed shall be 100% of the principal amount of such Securities, and accrued
and unpaid interest (including any Additional Interest) shall be paid to the
Holder on such Regular Record Date.
Section 6.02 Election to Redeem; Notice to Trustee. In case of any
redemption at the election of the Company, the Company shall, on or prior to the
date that is 15 days prior to the date on which notice is given to the Holders
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such Redemption Date and of the principal amount of Securities to be
redeemed and shall deliver to the Trustee such documentation and records as
shall enable the Trustee to select the Securities to be redeemed pursuant to
Section 6.03. Any such notice may be cancelled at any time prior to notice of
such redemption being mailed to any Holder and shall thereby be void and of no
effect.
Section 6.03 Selection by Trustee of Securities to Be Redeemed. If
less than all the Securities are to be redeemed at any time pursuant to this
Article 6, the particular Securities to be redeemed shall be selected by the
Trustee, from the outstanding Securities not previously called for redemption,
by lot or on a pro rata basis among the Securities or by such other method as
the Trustee shall deem fair and appropriate, including any method required by
DTC or any successor depositary (and in such manner as is not prohibited by
applicable legal requirements) and which may provide for the selection for
redemption of portions of the principal of the Securities; provided, however,
that no such partial redemption shall reduce the portion of the principal amount
of a Security not redeemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
30
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount of such Security which has been or is to be redeemed.
If any Securities selected for partial redemption are thereafter
surrendered for conversion in part before termination of the conversion right
with respect to the portion of the Securities so selected, the converted portion
of such Securities shall be deemed (so far as may be), solely for purposes of
determining the aggregate principal amount of Securities to be redeemed by the
Company, to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection. Nothing in this
Section 6.03 shall affect the right of any Holder to convert any Securities
pursuant to Article 12 before the termination of the conversion right with
respect thereto.
Section 6.04 Notice of Redemption. Notice of redemption shall be
given in the manner provided for in Section 14.02 not less than 30 Scheduled
Trading Days nor more than 45 Scheduled Trading Days prior to the Redemption
Date, to the Trustee, the Paying Agent and each Holder of Securities to be
redeemed. The Trustee shall give notice of redemption in the Company's name and
at the Company's expense; provided, however, that the Company shall deliver to
the Trustee an Officers' Certificate, at least 15 calendar days prior to the
date on which notice is required to be given to the Holders (unless shorter
notice shall be satisfactory to the Trustee), requesting that the Trustee give
such notice at the Company's expense and setting forth the information to be
stated in such notice as provided in the following items.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the then current Base Conversion Rate and Share
Incremental Factor for conversion of Securities, and provide a statement that
the Securities called for redemption may be converted at any time before the
close of business on the third Scheduled Trading Day prior to the Redemption
Date, and that Holders who wish to convert Securities must comply with the
relevant procedures;
(d) if less than all outstanding Securities are to be
redeemed, the identification of the particular Securities (or portion thereof)
to be redeemed, as well as the aggregate principal amount of Securities to be
redeemed and the aggregate principal amount of Securities to be outstanding
after such partial redemption;
(e) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed;
(f) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, or the portion thereof, to be
redeemed, and, unless the Company defaults in making the redemption payment,
that interest (including any Additional Interest) on Securities called for
31
redemption (or the portion thereof) will cease to accrue on and after said date;
(g) the place or places where such Securities are to be
surrendered for payment of the Redemption Price;
(h) the name and address of the Paying Agent and the
Conversion Agent;
(i) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price; and
(j) the CUSIP or ISIN number, and that no representation is
made as to the accuracy or correctness of the CUSIP or ISIN number, if any,
listed in such notice or printed on the Securities.
Section 6.05 Deposit of Redemption Price. Prior to 11:00 a.m., New
York City time, on any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 2.06) an amount of
money sufficient to pay the Redemption Price of all the Securities which are to
be redeemed on that date other than Securities or portions of Securities called
for redemption that are beneficially owned by the Company and have been
delivered by the Company to the Trustee for cancellation. Section 6.06
Securities Payable on Redemption Date. Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
unless converted, become due and payable at the Redemption Price, and from and
after such date (unless the Company shall default in the payment of the
Redemption Price or accrued and unpaid interest (including any Additional
Interest)) such Securities shall cease to bear interest or Additional Interest.
Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate borne by the Securities.
Section 6.07 Securities Redeemed in Part. Any Security which is to
be redeemed only in part (pursuant to the provisions of this Article 6) shall be
surrendered at the office or agency of the Company maintained for such purpose
pursuant to Section 3.02 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing), and the Company shall execute, and the
Trustee shall authenticate and make available for delivery to the Holder of such
Security at the expense of the Company, a new Security or Securities, of any
authorized denomination as requested by such Holder, in an aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered; provided that each such new Security will be in a
principal amount of $1,000 or multiple thereof.
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ARTICLE VII
DEFAULTS AND REMEDIES
---------------------
Section 7.01 Events of Default. Each of the following is an "EVENT
OF DEFAULT":
(a) default in any payment of interest (including Additional
Interest) on any Security when the same becomes due and payable, and such
default continues for a period of 30 days;
(b) default in the payment of the principal of any Security
when the same becomes due and payable at its Stated Maturity, upon optional
redemption, upon required repurchase, upon declaration of acceleration or
otherwise;
(c) failure by the Company to comply with its obligation to
convert the Securities in accordance with and within the time period required by
the Indenture, upon exercise of a Holder's conversion right and such failure
continues for a period of 10 days;
(d) failure by the Company to give a Company Notice of the
occurrence of a Fundamental Change to Holders pursuant to Section 11.01 or
notice of a specified corporate transaction (as described in Section
12.01(a)(iv)) or a notice of a Public Acquirer Change of Control (as described
in Section 12.04(c)) to Holders, in each case when due and such failure
continues for 10 days after notice of such failure is received by the Trustee
from any party;
(e) failure by the Company to comply with its obligations
under Article 4;
(f) failure by the Company for a period of 60 days after
written notice from the Trustee or Holders of at least 25% in principal amount
of Securities then outstanding has been received to comply with any obligation,
covenant or agreement in this Indenture or under the Securities (other than
those referred to in Section 7.01(a) through (e) and Section 7.01(g) through
(i));
(g) default by the Company or any Significant Subsidiary of
the Company in the payment of the principal or interest on any mortgage,
agreement or other instrument under which there may be outstanding, or by which
there may be secured or evidenced, any indebtedness for money borrowed in excess
of $15,000,000 in the aggregate of the Company and/or any such Subsidiary,
whether such indebtedness now exists or shall hereafter be created, which
default results (i) in such indebtedness becoming or being declared due and
payable, and such indebtedness shall not have been discharged in full or such
declaration shall not have been rescinded or annulled within 30 days after
written notice of such declaration has been received by the Company or such
Subsidiary from the Trustee (or to the Company and the Trustee from Holders of
at least 25% in principal amount of outstanding Securities), or (ii) from a
failure to pay the principal of any such indebtedness when due and payable at
its Stated Maturity, upon required repurchase, upon declaration or otherwise,
and such defaulted payment shall not have been made, waived or extended within
30 days;
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(h) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of judgment, decree or order
for relief against it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it
or for any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors;
(v) consents to or acquiesces in the institution of a
bankruptcy or an insolvency proceeding against it;
(vi) takes any corporate action to authorize or effect
any of the foregoing; or
(vii) takes any comparable action under any foreign laws
relating to insolvency;
(i) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(ii) appoints a Custodian of the Company for all or
substantially all of the Company's or any Significant Subsidiary's
property; or
(iii) orders the winding up or liquidation of the
Company or Significant Subsidiary; or
and, in each case, the order or decree or relief remains
unstayed and in effect for 90 days; and
(j) there is entered against the Company or any Significant
Subsidiary a final judgment or order for the payment of money in an aggregate
amount exceeding $15,000,000 (to the extent not covered by independent
third-party insurance as to which the insurer does not dispute coverage) and (A)
enforcement proceedings are commenced by any creditor upon such judgment or
order, or (B) there is a period of 30 consecutive days during which a stay of
enforcement of such judgment, by reason of a pending appeal or otherwise, is not
in effect.
The foregoing will constitute Events of Default whatever the reason
for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any
34
court or any order, rule or regulation of any administrative or governmental
body.
Notwithstanding the foregoing, a Default under clause (f) or (g) of
this Section 7.01 will not constitute an Event of Default until the Trustee
notifies the Company (or the Holders of 25% or more in principal amount of the
outstanding Securities notify the Company and the Trustee) of the Default in
writing and the Company does not cure such Default within the time specified in
clause (f) or (g) of this Section 7.01 after receipt of such notice.
Section 7.02 Acceleration. Subject to Section 7.03, if an Event of
Default (other than an Event of Default specified in Section 7.01(h) or Section
7.01(i) above) occurs and is continuing, the Trustee by notice to the Company,
or the Holders of at least 25% in outstanding principal amount of the
outstanding Securities by notice to the Company and the Trustee, may, and the
Trustee at the request of such Holders shall, declare the principal of and
accrued and unpaid interest, if any, and Additional Interest, if any, on all the
Securities to be due and payable. Upon such a declaration, such principal and
accrued and unpaid interest and Additional Interest, if any, shall be due and
payable immediately. If an Event of Default specified in Section 7.01(h) or
Section 7.01(i) above occurs and is continuing, the principal of and accrued and
unpaid interest, if any, and Additional Interest, if any, on all the Securities
outstanding shall be immediately due and payable with no further action by the
Trustee or the Holders.
Section 7.03 Sole Remedy for Failure to Report. Notwithstanding any
other provision of this Indenture, the sole remedy for an Event of Default
relating to the failure to comply with the reporting obligations under Article 5
of this Indenture, and for any failure to comply with the requirements of
Section 314(a)(1) of the TIA, will for the 365 days after the occurrence of such
an Event of Default consist exclusively of the right to receive Additional
Interest on the principal amount of the Securities at a rate equal to 0.50% per
annum. This Additional Interest will be in addition to any Additional Interest
that may accrue as a result of a registration default as described in the
Registration Rights Agreement and will be payable in the same manner and subject
to the same terms as other interest payable under this Indenture. The Additional
Interest will accrue on all outstanding Securities from and including the date
on which an Event of Default relating to a failure to comply with Article 5 or
Section 314(a)(1) of the TIA first occurs to but not excluding the 365th day
thereafter (or such earlier date on which the Event of Default relating to the
reporting obligations under Article 5 or Section 314(a)(1) of the TIA shall have
been cured or waived). On such 365th day (or earlier, if the Event of Default
relating to such reporting obligations is cured or waived prior to such 365th
day), such Additional Interest will cease to accrue and the Securities will be
subject to acceleration and other remedies as provided in this Article 7 if the
Event of Default is continuing. For the avoidance of doubt, the provisions of
this Section 7.03 will not affect the rights of Holders of Securities in the
event of the occurrence of any other Event of Default and will have no effect on
the rights of Holders of Securities under the Registration Rights Agreement.
Section 7.04 Other Remedies. If an Event of Default other than an
Event of Default specified in Section 7.01(f), occurs and is continuing, the
Trustee may pursue any available remedy to collect the payment of principal of,
35
or interest (including any Additional Interest) on, the Securities or to enforce
the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
Section 7.05 Waiver of Past Defaults. The Holders of a majority in
principal amount of the outstanding Securities by notice to the Trustee may (a)
waive, by their consent (including consents obtained in connection with a
purchase of, or tender offer or exchange offer for, Securities), an existing
Default or Event of Default and its consequences except (i) a Default or Event
of Default resulting from the non-payment of the principal of, or interest
(including any Additional Interest) on, a Security, (ii) a Default or Event of
Default resulting from the failure to deliver, upon conversion, shares of Common
Stock or the combination of cash and shares of Common Stock, if any, upon the
conversion of the Security or (iii) a Default or Event of Default in respect of
a provision that under Section 10.02 cannot be amended without the consent of
each Holder affected and (b) rescind any such acceleration with respect to the
Securities and its consequences if (i) rescission would not conflict with any
judgment or decree of a court of competent jurisdiction and (ii) all existing
Events of Default, other than the nonpayment of the principal of, or interest
(including any Additional Interest) on, the Securities that have become due
solely by such declaration of acceleration, have been cured or waived. When a
Default or Event of Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or Event of Default or impair
any consequent right.
Section 7.06 Control by Majority. The Holders of a majority in
principal amount of the outstanding Securities may direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture or,
subject to Sections 8.01 and 8.02, that the Trustee determines is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability; provided, however, that the Trustee may take any other
action deemed proper by the Trustee that is not inconsistent with such
direction.
Section 7.07 Limitation on Suits. Subject to Section 7.08, a Holder
may not pursue any remedy with respect to this Indenture or the Securities
unless:
(a) such Holder has previously given to the Trustee written
notice stating that an Event of Default is continuing;
(b) Holders of at least 25% in principal amount of the
outstanding Securities have requested that the Trustee pursue the remedy;
(c) such Holders have offered to the Trustee security or
indemnity reasonably satisfactory to it against any loss, liability or expense
to be incurred in compliance with such request;
36
(d) the Trustee has not complied with such request within 60
days after receipt of the request and the offer of security or indemnity; and
(e) the Holders of a majority in principal amount of the
outstanding Securities have not given the Trustee a direction that, in the
opinion of the Trustee, is inconsistent with such request within such 60-day
period.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
Section 7.08 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture (including Section 7.07), the right of any
Holder to receive payment of principal of, or interest (including any Additional
Interest) on, the Securities held by such Holder, on or after the respective due
dates expressed in the Securities, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
Section 7.09 Collection Suit by Trustee. If an Event of Default
specified in clauses (a) or (b) of Section 7.01 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 then due and owing (together with
interest on any unpaid interest (including any Additional Interest) to the
extent lawful) and the amounts provided for in Section 8.07.
Section 7.10 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 (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any judicial
proceedings relative to the Company or its respective creditors or properties
and, unless prohibited by law or applicable regulations, may be entitled and
empowered to participate as a member of any official committee of creditors
appointed in such matter, and may vote on behalf of the Holders in any election
of a trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and its counsel, and any other amounts due to the
Trustee under Section 8.07.
Section 7.11 Priorities. If the Trustee collects any money or
property pursuant to this Article 7, it shall pay out the money or property in
the following order:
FIRST: to the Trustee for amounts due under Section 8.07;
SECOND: to Holders for amounts due and unpaid on the Securities
for principal or interest (including any Additional Interest) ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Securities for principal and interest, respectively; and
THIRD: to the Company.
37
The Trustee may fix a record date and payment date for any payment
to Holders pursuant to this Section 7.11. At least 15 days before such record
date, the Company shall mail to each Holder and the Trustee a notice that states
the record date, the payment date and amount to be paid.
Section 7.12 Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted a proceeding to enforce any right or remedy under this
Indenture and the proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to the Holder, then, subject
to any determination in the proceeding, the Company, the Trustee and the Holders
will be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Company, the Trustee and the
Holders will continue as though no such proceeding had been instituted.
Section 7.13 Undertaking of Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees and expenses, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 7.13 does not apply
to a suit by the Trustee, a suit by the Company, a suit by a Holder pursuant to
Section 7.08 or a suit by Holders of more than 10% in outstanding principal
amount of the Securities.
ARTICLE VIII
TRUSTEE
-------
Section 8.01 Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs; provided that if an Event of Default
occurs and is continuing, the Trustee will be under no obligation to exercise
any of the rights or powers under this Indenture at the request or direction of
any of the Holders unless such Holders have offered to the Trustee indemnity or
security reasonably satisfactory to it against loss, liability or expense that
might be incurred in compliance with such request or direction.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates, opinions
or orders furnished to the Trustee and conforming to the requirements of
this Indenture. However, in the case of any such certificates, opinions or
orders which by any provisions hereof are specifically required to be
38
furnished to the Trustee, the Trustee shall examine such certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(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:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section 8.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer of the Trustee unless it is
proved that the Trustee was negligent in ascertaining the pertinent facts;
and
(iii) 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 7.06.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section
8.01.
(e) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing with the
Company.
(f) Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) Every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 8.01 and to the provisions of
the TIA.
(i) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
Section 8.02 Rights of Trustee. Subject to Section 8.01:
(a) The Trustee may conclusively rely on any document
(whether in its original or facsimile form) reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document. The Trustee
shall receive and retain financial reports and statements of the Company as
39
provided herein, but shall have no duty to review or analyze such reports or
statements to determine compliance under covenants or other obligations of the
Company.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in reliance
on an Officers' Certificate and an Opinion of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes
or omits to take in good faith which it believes to be authorized or within its
rights or powers, unless the Trustee's conduct constitutes willful misconduct or
negligence.
(e) The Trustee may consult with counsel of its selection,
and the advice or opinion of counsel with respect to legal matters relating to
this Indenture and the Securities shall be full and complete authorization and
protection from liability in respect to any action taken, omitted or suffered by
it hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be responsible or liable for
special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) resulting from actions taken in
good faith and which the Trustee believes to be authorized or within its rights
or powers, unless the Trustee's conduct constitutes willful misconduct or
negligence.
(g) The rights, privileges, protections, immunities and
benefits given to the Trustee, including its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, Securities Custodian and other Person employed to act
hereunder.
(h) The Trustee may request that the Company deliver a
certificate setting forth the names of individuals and/or titles of Officers
authorized at such time to take specified actions pursuant to this Indenture.
(i) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless an Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
Default or Event of Default is received by an Officer of the Trustee from the
Company or the Holders of 25% in aggregate principal amount of the outstanding
Securities, and such notice references the specific Default or Event of Default,
the Securities and this Indenture.
(j) The Trustee shall not be required to give any bond or
surety in respect of the performance of its power and duties hereunder.
(k) The Trustee shall have no duty to inquire as to the
performance of the Company's covenants herein.
40
Section 8.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent or Registrar may do the
same with like rights. However, the Trustee must comply with Sections 8.10 and
8.11. In addition, the Trustee shall be permitted to engage in transactions with
the Company; provided, however, that if, during the continuance of any Default,
the Trustee acquires any conflicting interest the Trustee must (i) eliminate
such conflict within 90 days of acquiring such conflicting interest, (ii) apply
to the SEC for permission to continue acting as Trustee or (iii) resign.
Section 8.04 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 Securities, shall not be accountable for the Company's use
of the proceeds from the Securities, shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
shall not be responsible for any statement of the Company in this Indenture or
in any document issued in connection with the sale of the Securities or in the
Securities other than the Trustee's certificate of authentication.
Section 8.05 Notice of Defaults. If a Default or Event of Default
occurs and is continuing and if a Trust Officer of the Trustee has actual
knowledge thereof, the Trustee shall mail by first class mail to each Holder at
the address set forth in the Securities Register notice of the Default or Event
of Default within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of, or interest (including any
Additional Interest) on, any Security (including payments pursuant to the
optional redemption or required repurchase provisions of such Security, if any),
the Trustee may withhold the notice if and so long as it determines in good
faith that withholding the notice is in the interests of Holders.
Section 8.06 Reports by Trustee to Holders. Within 60 days after
each November 15 beginning with the November 15 following the date of this
Indenture, the Trustee shall mail to each Holder a brief report dated as of such
November 15 that complies with TIA ss. 313(a), if required by such TIA ss.
313(a). The Trustee also shall comply with TIA ss. 313(b). The Trustee shall
also transmit by mail all reports required by TIA ss. 313(c).
Section 8.07 Compensation and Indemnity. The Company shall pay to
the Trustee from time to time such compensation for its acceptance of this
Indenture and services hereunder as the Company and the Trustee shall from time
to time agree in writing. The Trustee's compensation shall not be limited by any
law on compensation of a trustee of an express trust. In addition to the
compensation the Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred or made by it. Such expenses shall
include the reasonable compensation and out-of-pocket expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Company shall indemnify the Trustee against any and all loss, liability,
damages, claims or expense (including reasonable attorneys' fees and expenses)
incurred by it without negligence or willful misconduct on its part in
connection with the administration of this trust and the performance of its
duties hereunder, including the costs and expenses of enforcing this Indenture
(including this Section 8.07) and of defending itself against any claims
(whether asserted by any Holder, the Company or otherwise). The Trustee shall
notify the Company promptly of any claim of which a Trust Officer of the Trustee
41
has received written notice 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 and the Trustee shall
provide reasonable cooperation at the Company's expense in the defense. The
Trustee may have separate counsel and the Company shall pay the fees and
expenses of such counsel, provided that the Company shall not be required to pay
such fees and expenses if it assumes the Trustee's defense, and, in the
reasonable judgment of outside counsel to the Trustee, there is no conflict of
interest between the Company and the Trustee in connection with such defense.
The Company need not reimburse any expense or indemnify against any loss,
liability or expense determined to have been caused by the Trustee through the
Trustee's own willful misconduct or negligence.
To secure the Company's payment obligations in this Section 8.07,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee other than money or property held in trust to
pay principal of, or interest (including any Additional Interest) on, particular
Securities. Such lien shall survive the satisfaction and discharge of this
Indenture. The Trustee's right to receive payment of any amounts due under this
Section 8.07 shall not be subordinate to any other unsecured liability or debt
of the Company.
The Company's payment obligations pursuant to this Section 8.07
shall survive the discharge of this Indenture and the resignation and removal of
the Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 7.01(h) or Section 7.01(i) with respect to the Company, the
expenses are intended to constitute expenses of administration under any
Bankruptcy Law.
Section 8.08 Replacement of Trustee. The Trustee may resign at any
time by so notifying the Company. The Holders of a majority in principal amount
of the Securities may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 8.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed by the Company or by the
Holders of a majority in principal amount of the Securities and such Holders do
not reasonably promptly appoint a successor Trustee, or if a vacancy exists in
the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Company shall promptly appoint
a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
42
succession to Holders. The retiring Trustee shall, upon payment of its charges,
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 8.07.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
at least 10% in principal amount of the Securities may petition, at the
Company's expense, any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 8.10, unless the
Trustee's duty to resign is stayed as provided in TIA ss. 310(b), any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section 8.08, the Company's obligations under Section 8.07 shall continue for
the benefit of the retiring Trustee.
Section 8.09 Successor Trustee by Merger. If the Trustee
consolidates with, merges or exchanges into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, exchange
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture, any of the Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; provided that the right to adopt the certificate of
authentication of any predecessor Trustee or authenticate Securities in the name
of any predecessor Trustee shall only apply to its successor or successors by
merger, consolidation or exchange.
Section 8.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA ss. 310(a). The Trustee shall have a
combined capital and surplus of at least $50 million as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
ss. 310(b); provided, however, that there shall be excluded from the operation
of TIA ss. 310(b)(1) any indenture or indentures under which other securities or
certificates of interest or participation in other securities of the Company are
outstanding, if the requirements for such exclusion set forth in TIA ss.
310(b)(1) are met.
Section 8.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
43
ARTICLE IX
DISCHARGE OF INDENTURE
----------------------
Section 9.01 Discharge of Liability on Securities. When (1) the
Company shall deliver to the Registrar for cancellation all Securities
theretofore authenticated (other than any Securities which have been mutilated,
destroyed, lost or wrongfully taken and in lieu of or in substitution for which
other Securities shall have been authenticated and delivered) and not
theretofore canceled, or (2) all the Securities not theretofore canceled or
delivered to the Registrar for cancellation shall have (a) been delivered for
conversion (after all related Observation Periods have elapsed) and the Company
shall deliver to the Holders shares of Common Stock or a combination of cash and
shares of Common Stock, as applicable, sufficient to pay all amounts owing in
respect of all Securities (other than any Securities which shall have been
mutilated, destroyed, lost or wrongfully taken and in lieu of or in substitution
for which other Securities shall have been authenticated and delivered) not
theretofore canceled or delivered to the Registrar for cancellation or (b)
become due and payable on the Stated Maturity, Purchase Date, Fundamental Change
Purchase Date or Redemption Date, as applicable, and the Company shall deposit
with the Trustee cash and shares of Common Stock, as applicable, sufficient to
pay all amounts owing in respect of all Securities (other than any Securities
which shall have been mutilated, destroyed, lost or wrongfully taken and in lieu
of or in substitution for which other Securities shall have been authenticated
and delivered) not theretofore canceled or delivered to the Registrar for
cancellation, including the principal amount and interest (including any
Additional Interest) accrued and unpaid to such Stated Maturity, Purchase Date,
Fundamental Change Purchase Date or Redemption Date, as the case may be, and if
in either case (1) or (2) the Company shall also pay or cause to be paid all
other sums payable hereunder by the Company, then this Indenture with respect to
the Securities shall cease to be of further effect (except as to (i) remaining
rights of registration of transfer, substitution and exchange and conversion of
Securities; (ii) rights hereunder of Holders to receive from the Trustee
payments of the amounts then due, including interest (including any Additional
Interest), with respect to the Securities and the other rights, duties and
obligations of Holders, as beneficiaries hereof solely with respect to the
amounts, if any, so deposited with the Trustee; and (iii) the rights,
obligations and immunities of the Trustee, Authenticating Agent, Paying Agent,
Conversion Agent and Registrar under this Indenture with respect to the
Securities), and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel as required by Section 9.03 and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture with respect to the
Securities; however, the Company hereby agrees to reimburse the Trustee,
Authenticating Agent, Paying Agent, Conversion Agent and Registrar for any costs
or expenses thereafter reasonably and properly incurred by the Trustee,
Authenticating Agent, Paying Agent, Conversion Agent and Registrar and to
compensate the Trustee, Authenticating Agent, Paying Agent, Conversion Agent and
Registrar for any services thereafter reasonably and properly rendered by the
Trustee, Authenticating Agent, Paying Agent, Conversion Agent and Registrar in
connection with this Indenture with respect to the Securities.
Section 9.02 Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money to the Holders entitled thereto by reason of any order
or judgment of any court of governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
44
Indenture with respect to the Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 9.01 until such time as the
Trustee or the Paying Agent is permitted to apply all such money in accordance
with this Indenture and the Securities to the Holders entitled thereto;
provided, however, that if the Company makes any payment of principal amount of,
or interest (including any Additional Interest) on, any Security following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money held by
the Trustee or Paying Agent.
Section 9.03 Officers' Certificate; Opinion of Counsel. Upon any
application or demand by the Company to the Trustee to take any action under
Section 9.01, the Company shall furnish to the Trustee an Officers' Certificate
and Opinion of Counsel stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with.
ARTICLE X
AMENDMENTS
----------
Section 10.01 Without Consent of Holders. The Company and the
Trustee may amend this Indenture and the Securities without notice to or consent
of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this
Indenture;
(b) to comply with Article 4 in respect of the assumption by
a Successor Company of an obligation of the Company under this Indenture;
(c) to add guarantees to the Securities;
(d) to secure the Securities;
(e) to add to the covenants of the Company for the benefit
of the Holders or to surrender any right or power herein conferred upon the
Company;
(f) to make any change that does not materially adversely
affect the rights of any Holder;
(g) to comply with any requirement of the SEC in connection
with the qualification of this Indenture under the TIA;
(h) to provide for the acceptance of appointment by a
successor Trustee or Paying Agent or facilitate the administration of the trusts
under this Indenture by more than one Trustee or Paying Agent;
(i) to add to any Events of Default for the benefit of
Holders of Securities; or
45
(j) to conform the text of this Indenture or the Securities
to the "Description of Notes" section of the Offering Memorandum.
After an amendment under this Section 10.01 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 10.01.
Section 10.02 With Consent of Holders. The Company and the Trustee
may amend this Indenture and the Securities without notice to any Holder but
with the written or electronic consent of the Holders of at least a majority in
principal amount of the Securities then outstanding (including consents obtained
in connection with a purchase of, or tender offer or exchange offer for,
Securities), and subject to the provisions of Section 7.05 past Defaults or
compliance with the provisions of this Indenture or the Securities issued
hereunder may be waived with the written consent of the Holders of at least a
majority in principal amount of the Securities then outstanding (including
consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities). However, without the consent of each Holder affected, an
amendment or waiver may not:
(a) reduce the percentage in aggregate principal amount of
Securities whose Holders must consent to an amendment or waive any past default;
(b) reduce the rate of or extend the stated time for payment
of interest, including Additional Interest, on any Security;
(c) reduce the principal of or extend the Stated Maturity of
any Security;
(d) otherwise impair the right of any Holder to receive
payment of principal of, or interest (including any Additional Interest) on,
such Holder's Securities on or after the due dates therefor or to institute suit
for the enforcement of any payment on or with respect to such Holder's
Securities;
(e) make any change that impairs or adversely affects the
conversion rights of any Securities;
(f) reduce the Redemption Price, the Fundamental Change
Purchase Price or the Purchase Price payable upon the redemption or purchase of
any Security or amend or modify in any manner adverse to Holders of the
Securities the Company's obligation to make such payments;
(g) make any Security payable in currency other than that
stated in the Security (it being understood that all references to cash in this
Indenture and the Securities are to U.S. legal tender); or
(h) make any changes to the amendment provisions which
require each Holder's consent or to the waiver provisions.
46
It shall not be necessary for the consent of the Holders under this
Section 10.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof. A consent to any amendment or waiver under this Indenture by any Holder
of the Securities given in connection with a tender or exchange of such Holder's
Securities will not be rendered invalid by such tender or exchange.
After an amendment under this Section 10.02 becomes effective, the
Company shall mail to Holders a notice briefly describing such amendment. The
failure to give such notice to all Holders, or any defect therein, shall not
impair or affect the validity of an amendment under this Section 10.02.
Section 10.03 Compliance with Trust Indenture Act. Every amendment
or supplement to this Indenture or the Securities shall comply with the TIA as
then in effect.
Section 10.04 Revocation and Effect of Consents and Waivers. A
consent to an amendment or a waiver by a Holder of a Security shall bind the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same debt as the consenting Holder's Security, even if
notation of the consent or waiver is not made on the Security. However, any such
Holder or subsequent Holder may revoke the consent or waiver as to such Holder's
Security or portion of the Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective or
otherwise in accordance with any related solicitation documents. After an
amendment or waiver becomes effective, it shall bind every Holder. An amendment
or waiver shall become effective upon receipt by the Trustee of evidence of the
submission of the requisite number of written or electronic consents under
Section 10.01 or 10.02, as applicable.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to give their consent or
take any other action described above or required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to give such consent or to revoke any consent previously given or to
take any such action, whether or not such Persons continue to be Holders after
such record date. No such consent shall become valid or effective more than 120
days after such record date.
Section 10.05 Notation on or Exchange of Securities. If an amendment
changes the terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Security shall issue and the Trustee shall authenticate a
new Security that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Security shall not affect the validity of such
amendment.
Section 10.06 Trustee to Sign Amendments. The Trustee shall sign any
amendment authorized pursuant to this Article 10 if the amendment 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 the
Trustee shall be provided with and (subject to Sections 8.01 and 8.02) shall be
47
fully protected in relying upon an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
ARTICLE XI
PURCHASE AT THE OPTION OF HOLDERS UPON A FUNDAMENTAL CHANGE;
------------------------------------------------------------
PURCHASE AT THE OPTION OF HOLDERS
---------------------------------
Section 11.01 Purchase at the Option of the Holder Upon a
Fundamental Change. If a Fundamental Change shall occur at any time, each Holder
shall have the right, at such Holder's option, to require the Company to
purchase any or all of such Holder's Securities on a date specified by the
Company that is no later than the 35th calendar day after the date of the
Company Notice of the occurrence of such Fundamental Change (subject to
extension to comply with applicable law, as provided in Section 11.03(d)) (the
"FUNDAMENTAL CHANGE PURCHASE DATE"). The Company shall purchase such Securities
at a price (the "FUNDAMENTAL CHANGE PURCHASE PRICE"), which shall be paid in
cash, equal to 100% of the principal amount of the Securities to be purchased
plus accrued and unpaid interest, including any Additional Interest, to but
excluding the Fundamental Change Purchase Date, unless the Fundamental Change
Purchase Date is between a Regular Record Date and the Interest Payment Date to
which it relates, in which case the Fundamental Change Purchase Price shall
equal 100% of the principal amount of Securities to be purchased and accrued and
unpaid interest, including Additional Interest, shall be paid to the Holder of
record on the Regular Record Date.
(a) Notice of Fundamental Change. The Company, or at its
request (which must be received by the Paying Agent at least three Business Days
(or such lesser period as agreed to by the Paying Agent) prior to the date the
Paying Agent is requested to give such notice as described below) the Paying
Agent, in the name of and at the expense of the Company, shall mail to all
Holders and the Trustee a Company Notice of the occurrence of a Fundamental
Change and of the purchase right arising as a result thereof, including the
information required by Section 11.03(a) hereof, on or before the 20th calendar
day after the occurrence of such Fundamental Change. The Company shall promptly
furnish to the Paying Agent a copy of such Company Notice.
(b) Exercise of Option. For a Security to be so purchased at
the option of the Holder, such Holder must deliver to the Paying Agent such
Security duly endorsed for transfer, together with a written notice of purchase
(a "FUNDAMENTAL CHANGE PURCHASE NOTICE") in the form entitled "Form of
Fundamental Change Purchase Notice" attached to the Security duly completed, on
or before the Business Day immediately preceding the Fundamental Change Purchase
Date, subject to extension to comply with applicable law. The Fundamental Change
Purchase Notice shall state:
(i) if certificated, the certificate numbers of the
Securities which the Holder shall deliver to be purchased, or if not
certificated, such notice must comply with appropriate DTC procedures;
48
(ii) the portion of the principal amount of the
Securities which the Holder shall deliver to be purchased, which portion
must be $1,000 in principal amount or a multiple thereof; and
(iii) that such Securities shall be purchased as of the
Fundamental Change Purchase Date pursuant to the terms and conditions
specified in paragraph 4 of the Securities and in this Indenture.
(c) Procedures. The Company shall purchase from a Holder,
pursuant to this Section 11.01, Securities if the principal amount of such
Securities is $1,000 or a multiple of $1,000 if so requested by such Holder.
Any purchase by the Company contemplated pursuant to the provisions
of this Section 11.01 shall be consummated by the delivery of the Fundamental
Change Purchase Price to be received by the Holder promptly following the later
of the Fundamental Change Purchase Date or the time of book-entry transfer or
delivery of the Securities.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Fundamental Change Purchase Notice
contemplated by this Section 11.01 shall have the right at any time prior to the
close of business on the Business Day prior to the Fundamental Change Purchase
Date to withdraw such Fundamental Change Purchase Notice (in whole or in part)
by delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 11.03(b).
The Paying Agent shall promptly notify the Company of the receipt by
it of any Fundamental Change Purchase Notice or written notice of withdrawal
thereof.
At or before 11:00 a.m. (New York City time) on the Fundamental
Change Purchase Date, the Company shall deposit with the Paying Agent (or if the
Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust) cash sufficient to pay the aggregate Fundamental
Change Purchase Price of the Securities to be purchased pursuant to this Section
11.01. Payment by the Paying Agent of the Fundamental Change Purchase Price for
such Securities shall be made promptly following the later of the Fundamental
Change Purchase Date or the time of book-entry transfer or delivery of such
Securities. If the Paying Agent holds, in accordance with the terms of this
Indenture, cash sufficient to pay the Fundamental Change Purchase Price of such
Securities on the Fundamental Change Purchase Date, then, on and after such
date, such Securities shall cease to be outstanding and interest (including any
Additional Interest), on such Securities shall cease to accrue, whether or not
book-entry transfer of such Securities is made or such Securities are delivered
to the Paying Agent, and all other rights of the Holder shall terminate (other
than the right to receive the Fundamental Change Purchase Price and previously
accrued and unpaid interest (including any Additional Interest), upon delivery
or transfer of the Securities). Nothing herein shall preclude any withholding
tax required by law.
The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all cash held by the Paying Agent for the payment of the
Fundamental Change Purchase Price and shall notify the Trustee of any default by
49
the Company in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall segregate the cash held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to deliver all cash held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon doing so, the Paying Agent shall
have no further liability for the cash delivered to the Trustee.
Section 11.02 Purchase of Securities at the Option of the Holder.
(a) A Holder shall have the option to require the Company to
purchase any outstanding Securities on each of May 15, 2012, May 15, 2017 and
May 15, 2022 (each, a "PURCHASE DATE"), at a price (the "PURCHASE PRICE") which
shall be paid in cash, equal to 100% of the principal amount of the Securities
to be repurchased plus any accrued and unpaid interest, including any Additional
Interest, to but excluding the Purchase Date, upon:
(i) delivery to the Paying Agent by the Holder of a
written notice of purchase (a "PURCHASE NOTICE") at any time from the
opening of business on the date that is 20 Business Days prior to the
relevant Purchase Date until the close of business on the second Business
Day prior to such Purchase Date, stating:
(A) if certificated, the certificate numbers of
the Securities which the Holder will deliver to be purchased, or, if not
certificated, the Purchase Notice must comply with appropriate DTC
procedures;
(B) the portion of the principal amount of the
Securities which the Holder will deliver to be purchased, which portion
must be $1,000 in principal amount or a multiple thereof; and
(C) that such Securities shall be purchased by the
Company as of the Purchase Date pursuant to the terms and conditions
specified in paragraph 4 of the Securities and in this Indenture; and
(ii) delivery or book-entry transfer of such Securities
to the Paying Agent (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery or transfer being a condition
to receipt by the Holder of the Purchase Price therefor; provided,
however, that such Purchase Price shall be so paid pursuant to this
Section 11.02 only if the Securities so delivered or transferred to the
Paying Agent shall conform in all respects to the description thereof in
the related Purchase Notice.
(b) The Company shall purchase from a Holder, pursuant to
this Section 11.02, Securities if the principal amount of such Securities is
$1,000 or a multiple of $1,000 if so requested by such Holder.
(c) Any purchase by the Company contemplated pursuant to the
provisions of this Section 11.02 shall be consummated by the delivery of the
50
Purchase Price to be received by the Holder promptly following the later of the
Purchase Date or the time of book-entry transfer or delivery of the Securities.
(d) Notwithstanding anything herein to the contrary, any
Holder delivering to the Paying Agent the Purchase Notice contemplated by this
Section 11.02 shall have the right at any time prior to the close of business on
the Business Day prior to the Purchase Date to withdraw such Purchase Notice (in
whole or in part) by delivery of a written notice of withdrawal to the Paying
Agent in accordance with Section 11.03(b).
(e) The Paying Agent shall promptly notify the Company of
the receipt by it of any Purchase Notice or written notice of withdrawal
thereof.
(f) At or before 11:00 a.m. (New York City time) on the
Purchase Date, the Company shall deposit with the Paying Agent (or if the
Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust) cash sufficient to pay the aggregate Purchase Price
of the Securities to be purchased pursuant to this Section 11.02. Payment by the
Paying Agent of the Purchase Price for such Securities shall be made promptly
following the later of the Purchase Date or the time of book-entry transfer or
delivery of such Securities. If the Paying Agent holds, in accordance with the
terms of this Indenture, cash sufficient to pay the Purchase Price of such
Securities on the Purchase Date, then, on and after such date, such Securities
shall cease to be outstanding and interest (including any Additional Interest)
on such Securities shall cease to accrue, whether or not book-entry transfer of
such Securities is made or such Securities are delivered to the Paying Agent,
and all other rights of the Holder shall terminate (other than the right to
receive the Purchase Price and previously accrued interest (including any
Additional Interest) upon delivery or transfer of the Securities). Nothing
herein shall preclude any withholding tax required by law.
(g) The Company shall require each Paying Agent (other than
the Trustee) to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee all cash held by the Paying Agent for the
payment of the Purchase Price and shall notify the Trustee of any default by the
Company in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall segregate the cash held by it as Paying
Agent and hold it as a separate trust fund. The Company at any time may require
a Paying Agent to deliver all cash held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon doing so, the Paying Agent shall
have no further liability for the cash delivered to the Trustee.
Section 11.03 Further Conditions and Procedures for Purchase at the
Option of the Holder Upon a Fundamental Change and Purchase of Securities at the
Option of the Holder.
(a) Notice of Purchase Date or Fundamental Change. The
Company shall send notices (each, a "COMPANY NOTICE") to the Holders, the
Trustee, the Paying Agent and beneficial owners as required by applicable law,
not less than 20 Business Days prior to each Purchase Date, or on or before the
20th calendar day after the occurrence of the Fundamental Change, as the case
may be (each such date of delivery, a "COMPANY NOTICE DATE"). Each Company
Notice shall include a form of Purchase Notice or Fundamental Change Purchase
Notice, as the case may be, to be completed by a Holder and shall state:
51
(i) the applicable Purchase Price or Fundamental
Change Purchase Price, as the case may be;
(ii) if conversion is permitted under Section
12.01(a)(iv), the Base Conversion Rate and the Incremental Share Factor at
the time of such notice and any expected adjustments to the Base
Conversion Rate and the Incremental Share Factor;
(iii) the applicable Purchase Date or Fundamental Change
Purchase Date, as the case may be, and the last date on which a Holder may
exercise its repurchase rights under Section 11.01 or Section 11.02, as
applicable;
(iv) the name and address of the Paying Agent and the
Conversion Agent;
(v) that Securities must be surrendered to the Paying
Agent to collect payment of the Purchase Price or the Fundamental Change
Purchase Price, as the case may be;
(vi) that Securities as to which a Purchase Notice or a
Fundamental Change Purchase Notice has been delivered may be surrendered
for conversion only if the applicable Purchase Notice or Fundamental
Change Purchase Notice, as the case may be, has been withdrawn in
accordance with the terms of this Indenture;
(vii) that the Purchase Price or the Fundamental Change
Purchase Price for any Securities as to which a Purchase Notice or a
Fundamental Change Purchase Notice, as applicable, has been given and not
withdrawn shall be paid by the Paying Agent promptly following the later
of the Purchase Date or the Fundamental Change Purchase Date, as
applicable, or the time of book-entry transfer or delivery of such
Securities;
(viii) the procedures the Holder must follow under
Sections 11.01 or 11.02, as applicable, and Section 11.03;
(ix) the conversion rights of the Securities;
(x) that, unless the Company defaults in making
payment of such Purchase Price or Fundamental Change Purchase Price on
Securities covered by any Purchase Notice or Fundamental Change Purchase
Notice, as applicable, interest (including any Additional Interest) will
cease to accrue on and after the Purchase Date or Fundamental Change
Purchase Date, as applicable;
(xi) the CUSIP or ISIN number of the Securities;
(xii) the procedures for withdrawing a Purchase Notice
or a Fundamental Change Purchase Notice, as the case may be; and
52
(xiii) in the case of a Company Notice pursuant to
Section 11.01, the events causing a Fundamental Change and the effective
date of the Fundamental Change.
Simultaneously with providing such Company Notice, the Company will
publish a notice containing the information in such Company Notice in a
newspaper of general circulation in The City of New York or publish such
information on the Company's then existing website or through such other public
medium as it may use at the time.
At the Company's request, made at least five Business Days prior to
the date upon which such notice is to be mailed, and at the Company's expense,
the Paying Agent shall give the Company Notice in the Company's name; provided,
however, that, in all cases, the text of the Company Notice shall be prepared by
the Company.
(b) Adequacy and Effect of Purchase Notice or Fundamental
Change Purchase Notice; Withdrawal; Effect of Event of Default. The Company
shall reasonably determine whether the Purchase Notice or Fundamental Change
Purchase Notice delivered by the relevant Holders satisfies the conditions set
out in Section 11.02(a), Section 11.01(b) and Section 11.03 for such notices.
The Company's determination under this Section 11.03(b) will be binding and
conclusive, absent manifest error.
Upon receipt by the Company of the Purchase Notice or Fundamental
Change Purchase Notice specified in Section 11.02(a) or Section 11.01(b), as
applicable, the Holder of the Securities in respect of which such Purchase
Notice or Fundamental Change Purchase Notice, as the case may be, was given
shall (unless such Purchase Notice or Fundamental Change Purchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Purchase Price or Fundamental Change Purchase Price with
respect to such Securities. Such Purchase Price or Fundamental Change Purchase
Price shall be paid by the Paying Agent to such Holder promptly following the
later of (x) the Purchase Date or the Fundamental Change Purchase Date, as the
case may be, with respect to such Securities (provided the conditions in this
Article 11 have been satisfied) and (y) the time of delivery or book-entry
transfer of such Securities to the Paying Agent by the Holder thereof in the
manner required by Section 11.02 or Section 11.01, as applicable. Securities in
respect of which a Purchase Notice or Fundamental Change Purchase Notice, as the
case may be, has been given by the Holder thereof may not be converted on or
after the date of the delivery of such Purchase Notice or Fundamental Change
Purchase Notice, as the case may be, unless such Purchase Notice or Fundamental
Change Purchase Notice, as the case may be, has first been validly withdrawn as
specified in the following two paragraphs.
A Purchase Notice or Fundamental Change Purchase Notice, as the case
may be, may be withdrawn by means of a written notice of withdrawal delivered to
the office of the Paying Agent at any time prior to 5:00 p.m., New York City
time, on the Business Day prior to the Purchase Date or the Fundamental Change
Purchase Date, as the case may be, to which it relates, specifying:
(i) the principal amount of the Securities with
respect to which such notice of withdrawal is being submitted;
53
(ii) if certificated, the certificate number of the
Securities in respect of which such notice of withdrawal is being
submitted, or, if not certificated, the written notice of withdrawal must
comply with appropriate DTC procedures; and
(iii) the principal amount, if any, of such Securities
which remains subject to the original Purchase Notice or Fundamental
Change Purchase Notice, as the case may be, and which has been or shall be
delivered for purchase by the Company.
There shall be no purchase of any Securities pursuant to Section
11.02 or Section 11.01 if an Event of Default has occurred and is continuing
(other than a default that is cured by the payment of the Purchase Price or
Fundamental Change Purchase Price, as the case may be). The Paying Agent shall
promptly return to the respective Holders thereof any Securities (x) with
respect to which a Purchase Notice or Fundamental Change Purchase Notice, as the
case may be, has been withdrawn in compliance with this Indenture, or (y) held
by it during the continuance of an Event of Default (other than a default that
is cured by the payment of the Purchase Price or Fundamental Change Purchase
Price, as the case may be) in which case, upon such return, the Purchase Notice
or Fundamental Change Purchase Notice with respect thereto shall be deemed to
have been withdrawn.
(c) Securities Purchased in Part. Any Securities that are to
be purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Company shall execute and the Trustee or the
Authenticating Agent shall authenticate and deliver to the Holder of such
Securities, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to, and in exchange for, the portion of the principal amount of the
Securities so surrendered which is not purchased.
(d) Covenant to Comply with Securities Laws Upon Purchase of
Securities. In connection with any offer to purchase Securities under Section
11.02 or Section 11.01, the Company shall, to the extent applicable, (a) comply
with Rules 13e-4 and 14e-1 (and any successor provisions thereto) under the
Exchange Act, if applicable; (b) file the related Schedule TO (or any successor
schedule, form or report) under the Exchange Act, if applicable; and (c)
otherwise comply with all applicable federal and state securities laws so as to
permit the rights and obligations under Section 11.02 or Section 11.01 to be
exercised in the time and in the manner specified in Section 11.02 or Section
11.01.
(e) Repayment to the Company. Subject to applicable
abandoned property laws, the Trustee and the Paying Agent shall return to the
Company any cash or property that remains unclaimed, as provided in paragraph 8
of the Securities, together with interest that the Trustee or Paying Agent, as
the case may be, has expressly agreed in writing to pay, if any, that is held by
them for the payment of a Purchase Price or Fundamental Change Purchase Price,
as the case may be; provided, however, that to the extent that the aggregate
amount of cash or property deposited by the Company pursuant to Section 11.01(c)
or Section 11.02(f), as applicable, exceeds the aggregate Purchase Price or
54
Fundamental Change Purchase Price, as the case may be, of the Securities or
portions thereof which the Company is obligated to purchase as of the Purchase
Date or the Fundamental Change Purchase Date, as the case may be, then promptly
on and after the Business Day following the Purchase Date or Fundamental Change
Purchase Date, as the case may be, the Trustee and the Paying Agent shall return
any such excess to the Company together with interest that the Trustee or Paying
Agent, as the case may be, has expressly agreed in writing to pay, if any.
(f) Officers' Certificate. At least five Business Days
before the Company Notice Date, the Company shall deliver an Officers'
Certificate to the Trustee specifying whether the Company desires the Trustee to
give the Company Notice required by Section 11.03(a) herein.
ARTICLE XII
CONVERSION
----------
Section 12.01 Conversion of Securities. (a) Right to Convert.
Subject to the procedures for conversion set forth in this Article 12, a Holder
may convert its Securities prior to January 15, 2027 when one or more of the
conditions specified below are met and during the related specified period. On
and after January 15, 2027, as set forth under clause (b) below, a Holder may
convert its Securities until the close of business on the second Business Day
immediately preceding Stated Maturity regardless of the conditions specified
below. Whenever the Securities shall become convertible upon one or more of the
conditions stated in clauses (i), (ii), (iv)(A) or (iv)(B) below, the Company
or, at the Company's request, the Trustee in the name and at the expense of the
Company, shall notify the Holders of the event triggering such convertibility in
the manner provided in Section 14.02 and, in the case of one or more conditions
stated in clauses (i), (ii), (iv)(A) or (iv)(B), the Company shall also publish
a notice in accordance with Section 11.03(a). For the avoidance of doubt, the
Trustee has no duty to determine if Securities have become convertible, and its
only obligation is to notify Holders of such at the Company's request or as
specified in clause (ii) below. Whenever the Securities shall become convertible
upon the condition stated in clause (iii), notice of the event triggering such
convertibility shall be given in accordance with the provisions of Section 6.04.
Any notice so given shall be conclusively presumed to have been duly given,
whether or not the Holder receives such notice.
(i) Conversion Upon Satisfaction of Sale Price
Condition. A Holder may surrender all or a portion of its Securities for
conversion during any fiscal quarter (and only during such fiscal quarter)
commencing after June 30, 2007 if the Last Reported Sale Price for the
Common Stock for at least 20 Trading Days during the period of 30
consecutive Trading Days ending on the last Trading Day of the immediately
preceding fiscal quarter is greater than or equal to 130% of the Base
Conversion Price in effect on such related Trading Day.
(ii) Conversion Upon Satisfaction of Trading Price
Condition. A Holder may surrender its Securities for conversion during the
five Business Day period after any five consecutive Trading Day period
(the "MEASUREMENT PERIOD") in which the Trading Price per $1,000 principal
55
amount of Securities, as determined following a request by a Holder in
accordance with the procedures set forth in this Section 12.01(a)(ii), for
each Trading Day of the Measurement Period was less than 98% of the
product of the Last Reported Sale Price of the Common Stock and the
Applicable Conversion Rate for such Trading Day. In connection with any
conversion in accordance with this Section 12.01(a)(ii), the Trustee shall
have no obligation to determine the Trading Price of the Securities unless
requested by the Company; and the Company shall have no obligation to make
such request unless a Holder provides the Company with reasonable evidence
that the Trading Price per $1,000 principal amount of Securities would be
less than 98% of the product of the Last Reported Sale Price of the Common
Stock and the Applicable Conversion Rate. Promptly after receiving such
evidence, the Company shall instruct the Trustee to determine the Trading
Price of the Securities beginning on the next Trading Day and on each
successive Trading Day until the Trading Price per $1,000 principal amount
of Securities for any Trading Day is greater than or equal to 98% of the
product of the Last Reported Sale Price of the Common Stock and the
Applicable Conversion Rate for such Trading Day.
Solely for purposes of determining the satisfaction of the Trading
Price condition described above, the Applicable Conversion Rate on any day will
equal to:
Base Conversion Rate + (Daily VWAP - Base Conversion Price) /
Daily VWAP x Incremental Share Factor
(iii) Conversion Upon Notice of Redemption. If the
Company calls any or all of the Securities for Redemption, a Holder may
surrender for conversion all or a portion of its Securities called for
redemption at any time prior to the close of business on the third
Scheduled Trading Day prior to the related Redemption Date, even if the
Securities are not otherwise convertible at such time, after which time a
Holder's right to convert will expire unless the Company defaults in the
payment of the Redemption Price.
(iv) Conversion Upon Specified Corporate Transactions.
(A) If the Company elects to (i) distribute to all
holders of Common Stock any rights or warrants entitling them to purchase,
for a period expiring within 45 calendar days after the Ex-Dividend Date
of the distribution, shares of Common Stock at a price per share less than
the average of the Last Reported Sale Price of Common Stock for the 10
consecutive Trading Day period ending on the Trading Day immediately
preceding the Ex-Dividend Date for such distribution, or (ii) distribute
to all holders of Common Stock assets, debt securities or rights to
purchase securities of the Company, which distribution has a per share
Fair Market Value, as determined by the Company's Board of Directors,
exceeding 15% of the average of the Last Reported Sale Price for the 10
consecutive Trading Day period ending on the Trading Day immediately
preceding the Ex-Dividend Date for such distribution, then, in each case,
the Company must notify the Holders of such distribution and of their
56
rights under this clause (A), in the manner provided in Section 14.02, at
least 35 Scheduled Trading Days prior to the Ex-Dividend Date for such
distribution. Once the Company has given such notice, Holders may
surrender Securities for conversion at any time until the earlier of 5:00
p.m., New York City time, on the Business Day immediately prior to such
Ex-Dividend Date or the Company's announcement that such distribution will
not take place even if the Securities are not otherwise convertible at
such time.
(B) If the Company is party to a transaction
described in clauses (1), (2) and (3) of the definition of Fundamental
Change (after giving effect to the proviso set forth in the definition
thereof relating to Publicly Traded Securities), or a combination, merger,
binding share exchange or sale, lease or other transfer of all or
substantially all of the Company's and its Subsidiaries' assets, taken as
a whole, in each case pursuant to which the Common Stock would be
converted into cash, securities and/or other property that does not also
constitute a Fundamental Change, the Company must notify Holders of such
an event and of their rights under this clause (B), in the manner provided
in Section 14.02, at least 35 Scheduled Trading Days prior to the
anticipated effective date for such transaction. Once the Company has
given such notice, Holders may surrender Securities for conversion at any
time until seven Scheduled Trading Days after the actual effective date of
such transaction or, if later, the related Fundamental Change Purchase
Date.
A Holder may convert a portion of the principal amount of Securities if the
portion is $1,000 or a multiple of $1,000. The number of shares of Common Stock
issuable or the combination of cash payable and the number of shares of Common
Stock issuable, if any, upon conversion of a Security shall be determined as set
forth in Section 12.01(d). Notwithstanding the foregoing, a Holder may not
exercise this conversion right if such Holder participates (as a result of
holding the Securities, and at the same time as the holders Common Stock
participate) in any of the transactions described above as if such Holder held a
number of Common Stock equal to the Applicable Conversion Rate, multiplied by
the principal amount (expressed in thousands) of Securities held by such Holder,
without having to convert such Securities; and provided that, solely for the
purposes of this proviso, the Applicable Conversion Rate will be determined
based on an Observation Period commencing on the date immediately succeeding
such Ex-Dividend Date.
(b) Conversion During Specified Period Immediately Prior to
Stated Maturity. Notwithstanding anything herein to the contrary, a Holder may
surrender its Securities for conversion beginning on January 15, 2027, until the
close of business on the second Business Day immediately preceding the Stated
Maturity.
(c) Conversion Procedures. The following procedures shall
apply to the conversion of Securities:
(i) In respect of a Definitive Security, a Holder must
(A) complete and manually sign the conversion notice on the back of the
Security, or a facsimile of such conversion notice; (B) deliver such
57
conversion notice, which is irrevocable, and the Security to the
Conversion Agent; (C) to the extent any shares of Common Stock issuable
upon conversion are to be issued in a name other than the Holder's,
furnish appropriate endorsements and transfer documents as may be required
by the Conversion Agent; (D) if required pursuant to Section 12.01(f)
below, pay all transfer or similar taxes; and (E) if required pursuant to
Section 2.01(d) above, pay funds equal to interest payable on the next
Interest Payment Date to which such Holder is not entitled.
(ii) In respect of a beneficial interest in a Global
Security, a Beneficial Owner must comply with DTC's procedures for
converting a beneficial interest in a Global Security and, if required
pursuant to Section 2.01(d) above, pay funds equal to interest payable on
the next Interest Payment Date to which such Beneficial Owner is not
entitled, and if required, taxes or duties, if any.
The date a Holder satisfies the foregoing requirements is the
"CONVERSION DATE" hereunder.
If a Holder converts more than one Security at the same time, the
number of shares of Common Stock issuable or the combination of the cash payable
and number of shares of Common Stock issuable upon the conversion, if any, shall
be based on the total principal amount of the Securities converted.
Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee or the Authenticating Agent shall authenticate
and deliver to the Holder, a new Security in an authorized denomination equal in
principal amount to the unconverted portion of the Security surrendered.
Delivery of shares of Common Stock will be accomplished by delivery
to the Conversion Agent of certificates for the relevant number of shares of
Common Stock, other than in the case of Holders of Global Securities in
book-entry form with DTC, in which case shares of Common Stock shall be
delivered in accordance with DTC customary practices.
(d) Settlement Upon Conversion. In the event that the
Company receives a Holder's notice of conversion upon fulfillment of one or more
of the conditions to conversion described in this Section 12.01, the Company
will notify the relevant Holders within two Scheduled Trading Days following the
Conversion Date whether the Company will satisfy its obligation to convert the
Securities through delivery of (x) shares of Common Stock pursuant to clause
(ii) below or (y) a combination of cash and shares of Common Stock pursuant to
clause (i) below; provided, however, the Company may not elect to satisfy such
obligation pursuant to clauses (i) or (ii) below if the Company has made the
election to waive its right to do so. In either case, the Company will, except
as provided in Section 12.01(f), deliver cash in lieu of any fractional shares .
The delivery of shares of Common Stock, if any, will occur through the
Conversion Agent or DTC, as the case may be. The Company will deliver the Shares
of Common Stock and any cash to converting Holders as soon as practicable
following the last day of the Observation Period, but in no event later than
three Business Days thereafter.
58
(i) If the Company chooses or is required to satisfy
its obligation to convert the Securities (the "CONVERSION OBLIGATION") by
a combination of cash and shares of Common Stock, upon conversion the
Company will, except as provided in Section 12.01(f), deliver to
converting Holders, in respect of each $1,000 principal amount of
Securities being converted, the sum of the Daily Settlement Amounts for
each of the 25 VWAP Trading Days during the Observation Period.
(ii) If the Company elects or is required to satisfy
all of its Conversion Obligation with respect to Securities to be
converted in shares of Common Stock, the Company will, except as provided
in Section 12.01(f), deliver to any converting Holder a number of shares
equal to (i) the aggregate principal amount of Securities to be converted
divided by $1,000 multiplied by (ii) the Applicable Conversion Rate.
(iii) With respect to a conversion of a Security
pursuant hereto, at and after the close of business on the last VWAP
Trading Day (the "RELEVANT DATE") of the Observation Period used to
determine the Applicable Conversion Rate for such conversion, the Person
in whose name any certificate representing any shares of Common Stock
issuable upon such conversion is registered shall be treated as a
stockholder of record of the Company to the extent permitted by law. On
and after the Conversion Date with respect to a conversion of a Security
pursuant hereto, all rights of the Holder of such Security shall
terminate, other than the right to receive the consideration deliverable
upon conversion of such Security as provided herein. A Holder of a
Security is not entitled, as such, to any rights of a holder of Common
Stock until, if such Holder converts such Security and is entitled
pursuant hereto to receive shares of Common Stock in respect of such
conversion, the close of business on the Relevant Date or respective
Relevant Dates, as the case may be, with respect to such conversion.
(e) Irrevocable Election of Settlement Method. At any time
upon notice to the Trustee, the Company may irrevocably waive, in its sole
discretion, without the consent of the Holders, by notice to the Trustee and the
Holders, its right to satisfy its Conversion Obligation in either (i) shares of
the Company's common stock based upon the Applicable Conversion Rate, or (ii) a
combination of cash and shares of common stock, as specified in Section 12.01(d)
such that following the delivery of such notice, the Company may no longer
satisfy its conversion obligation in the method waived in such notice.
(f) Surrender to a Financial Institution in Lieu of
Conversion. When a Holder surrenders Securities for conversion, the Company may
direct the Conversion Agent to surrender such Securities to a financial
institution designated by the Company (the "DESIGNATED INSTITUTION") for
transfer in lieu of conversion. In order to accept any Securities surrendered
for conversion, the Designated Institution must agree to deliver, in exchange
for such Securities, shares of Common Stock based upon the Applicable Conversion
Rate or a combination of cash and shares of Common Stock, if applicable, equal
to the consideration due upon conversion, as determined under Section 12.01(d).
By the close of business on the Scheduled Trading Day immediately preceding the
59
start of the Observation Period, the Company will notify the Holder surrendering
Securities for conversion that (i) it has directed the Designated Institution to
accept the Securities in lieu of conversion and (ii) whether the Designated
Institution will deliver shares of Common Stock based upon the Applicable
Conversion Rate or a combination of cash and shares of Common Stock, if
applicable, equal to the consideration due upon conversion, as determined under
Section 12.01(d). If the Designated Institution accepts any such Securities, it
will deliver the appropriate number of shares of Common Stock or cash and shares
of Common Stock, if applicable, as the case may be, to the Conversion Agent and
the Conversion Agent will deliver those shares of Common Stock or cash and
shares of Common Stock, if applicable, as the case may be, to the Holder. Any
Securities accepted by the Designated Institution in lieu of conversion will
remain outstanding. If the Designated Institution agrees to accept any
Securities surrendered for conversion but does not timely deliver the related
consideration, or if such Designated Institution does not accept the Securities
for conversion, the Company will, as promptly as practical thereafter convert
the Securities into shares of Common Stock or cash and shares of Common Stock,
if applicable, in accordance with the election made by the Company in the
initial notice to the Holders surrendering the Securities and based on the
Observation Period as determined under Section 12.01(d). The Company's
designation of a financial institution to which the Securities may be
surrendered for conversion does not require the institution to accept any
Securities. The Company will not pay any consideration to, or otherwise enter
into any agreement with, the Designated Institution for or with respect to such
designation.
(g) Cash Payments in Lieu of Fractional Shares. The Company
shall not issue a fractional share of Common Stock upon conversion of
Securities. Instead, the Company, except as provided in Section 12.01(f), will
pay cash in lieu of fractional shares based on the Daily VWAP of the Common
Stock on the last day of the Observation Period.
(h) Taxes on Conversion. If a Holder converts Securities,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon the conversion. However, the
Holder shall pay any such tax which is due because the Holder requests the
shares to be issued in a name other than the Holder's name. The Conversion Agent
may refuse to deliver the certificates representing the Common Stock being
issued in a name other than the Holder's name until the Conversion Agent
receives a sum sufficient to pay any tax which shall be due because the shares
are to be issued in a name other than the Holder's name, but the Conversion
Agent shall have no duty to determine if any such tax is due. Nothing herein
shall preclude any withholding of tax required by law.
(i) Certain Covenants of the Company.
(i) The Company shall, prior to issuance of any
Securities hereunder, and from time to time as may be necessary, reserve
out of its authorized but unissued Common Stock or shares of Common Stock
held in treasury, a sufficient number of shares of Common Stock, free of
preemptive rights, to permit the conversion of the Securities.
(ii) All shares of Common Stock delivered upon
conversion of the Securities shall be newly issued shares or treasury
60
shares, shall be duly and validly issued and fully paid and nonassessable
and shall be free from preemptive rights and free of any lien or adverse
claim.
(iii) The Company shall endeavor promptly to comply with
all federal and state securities laws regulating the issuance and delivery
of shares of Common Stock upon the conversion of Securities, if any.
(iv) Before taking any action which would cause an
adjustment increasing the Base Conversion Rate to an amount that would
cause the Base Conversion Price to be reduced below the then par value per
share of the Common Stock, if any, of the shares of Common Stock issuable
upon conversion of the Securities, the Company will 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 Base Conversion Rate. Section 12.02 Adjustments to
Conversion Rate and the Incremental Share Factor.
The Base Conversion Rate will be adjusted only as described below.
Any time the Base Conversion Rate is adjusted as described below, the
Incremental Share Factor will be adjusted based on the following formula:
ISP' = ISP0 ER'
--------
X ER0
Where,
ISP0 = the Incremental Share Factor in effect immediately prior
to such adjustments;
ISP' = the incremental share factor in effect immediately after
such adjustments;
ER0 = the Base Conversion Rate in effect immediately prior to
such adjustments; and
ER' = the new Base Conversion Rate in effect immediately after such
adjustments.
(a) If the Company issues shares of Common Stock as a
dividend or distribution on shares of the Common Stock, or effects a share split
or share combination, the Base Conversion Rate will be adjusted based on the
following formula:
ER' = ER0 OS'
--------
X OS0
where,
61
ER0 = the Base Conversion Rate in effect immediately prior to
the Ex-Dividend Date for such dividend or distribution,
or the effective date of such share split or share
combination, as the case may be;
ER' = the new Base Conversion Rate in effect immediately after
the Ex-Dividend Date for such dividend or distribution,
or the effective date of such share split or share
combination, as the case may be;
OS0 = the number of shares of Common Stock outstanding
immediately prior to the Ex-Dividend Date for such
dividend or distribution, or the effective date of such
share split or share combination, as the case may be;
and
OS' = the number of shares of Common Stock outstanding
immediately after such dividend or distribution, or the
effective date of such share split or share combination,
as the case may be.
Such adjustment shall become effective immediately after (i) the Ex-Dividend
Date for such dividend or distribution or (ii) the date on which such share
split or share combination becomes effective, as applicable. If any dividend or
distribution of the type described in this Section 12.02(a) is declared but not
so paid or made, the new Base Conversion Rate shall again be adjusted to the
Base Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
(b) If the Company distributes to all holders of its Common
Stock any rights or warrants entitling them to purchase, for a period of not
more than 45 days after the Ex-Dividend Date for the distribution, shares of
Common Stock at a price per share less than the average of the Last Reported
Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending
on the Trading Day immediately preceding the Ex-Dividend Date for such
distribution, the Base Conversion Rate will be adjusted based on the following
formula:
ER' = ERo OSo + X
------------
X OSo + Y
where,
ER0 = the Base Conversion Rate in effect immediately prior to
the Ex-Dividend Date for such distribution;
ER' = the new Base Conversion Rate in effect immediately after
the Ex-Dividend Date for such distribution;
OS0 = the number of shares of Common Stock outstanding
immediately prior to the Ex-Dividend Date for such
distribution;
X = the total number of shares of Common Stock issuable
pursuant to such rights or warrants; and
62
Y = the number of shares of Common Stock equal to the
aggregate price payable to exercise such rights or
warrants divided by the average of the Last Reported
Sale Prices of the Common Stock over the 10 consecutive
Trading Day period ending on the Trading Day immediately
preceding the Ex-Dividend Date for such distribution.
For purposes of this Section 12.02(b), in determining whether any rights or
warrants entitle the Holders to subscribe for or purchase shares of Common Stock
at less than the average of the applicable Last Reported Sale Prices, and in
determining the aggregate exercise or conversion price payable for such shares
of Common Stock, there shall be taken into account any consideration received by
the Company for such rights or warrants and any amount payable on exercise or
conversion thereof, with the value of such consideration, if other than cash, to
be determined by the Company's Board of Directors. If any right or warrant
described in this Section 12.02(b) is not exercised or converted prior to the
expiration of the exercisability or convertibility thereof, the new Base
Conversion Rate shall be readjusted to the Base Conversion Rate that would then
be in effect if such right or warrant had not been so issued. Any adjustment
made pursuant to this Section 12.02(b) shall become effective immediately after
the Ex-Dividend Date for the applicable distribution.
(c) If the Company distributes shares of Capital Stock,
evidences of its indebtedness or other assets or property of the Company to all
holders of the Common Stock, excluding:
(i) dividends or distributions referred to in clause
(a) or (b) above;
(ii) dividends or distributions paid exclusively in
cash; and
(iii) Spin-Offs to which the provisions set forth below
in this clause (c) shall apply;
then the Base Conversion Rate will be adjusted based on the following formula:
ER' = ERo SPo
------------
X OSo - FMV
where,
ERo = the Base Conversion Rate in effect immediately prior to
the Ex-Dividend Date for such distribution;
ER' = the new Base Conversion Rate in effect immediately after
the Ex-Dividend Date for such distribution;
SPo = the average of the Last Reported Sale Prices of the
Common Stock over the 10 consecutive Trading Day period
ending on the Trading Day immediately preceding the
Ex-Dividend Date for such distribution; and
63
FMV = the average of the Fair Market Values (as determined by
the Company's Board of Directors) of the shares of
Capital Stock, evidences of indebtedness, assets or
property distributed with respect to each outstanding
share of Common Stock over the 10 consecutive Trading
Day period ending on the Trading Day immediately
preceding the Ex-Dividend Date for such distribution.
Such adjustment shall become effective immediately after the Ex-Dividend Date
for the applicable distribution.
With respect to an adjustment pursuant to this clause (c) where there has been a
payment of a dividend or other distribution on the Common Stock of shares of
Capital Stock of any class or series, or similar equity interest, of or relating
to a Subsidiary of the Company or other business unit (a "SPIN-OFF"), the Base
Conversion Rate in effect immediately before 5:00 p.m., New York City time, on
the tenth Trading Day immediately following, and including, the effective date
of the Spin-Off will be increased based on the following formula (and not the
first formula in this clause (c)):
FMVo + MPo
ER' = ERo X -------------
MPo
where,
ERo = the Base Conversion Rate in effect immediately prior to
the tenth Trading Day immediately following, and
including, the effective date of the Spin-Off;
ER' = the new Base Conversion Rate in effect immediately after
the tenth Trading Day immediately following, and
including, the effective date of the Spin-Off;
FMVo = the average of the Last Reported Sale Prices of the
Capital Stock or similar equity interest distributed to
holders of Common Stock applicable to one share of
Common Stock over the first 10 consecutive Trading Day
period immediately following, and including, the
effective date of the Spin-Off (treating such spun-off
asset as the Common Stock for purposes of the definition
of Last Reported Sale Price); and
MPo = the average of the Last Reported Sale Prices of Common
Stock over the first 10 consecutive Trading Day period
immediately following, and including, the effective date
of the Spin-Off.
Such adjustment shall occur immediately after the tenth Trading Day immediately
following, and including, the effective date of the Spin-Off provided that, for
purposes of determining the Base Conversion Rate, in respect of any conversion
during the ten Trading Days following the effective date of any Spin-Off,
references within the portion of this clause (c) related to "Spin-Offs" to 10
64
Trading Days shall be deemed replaced with such lesser number of Trading Days as
have elapsed between the effective date of such Spin-Off and the relevant
Conversion Date.
If any such dividend or distribution described in this clause (c) is declared
but not paid or made, the new Base Conversion Rate shall be readjusted to be the
Base Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
(d) If any cash dividend or distribution is made to all
holders of Common Stock, the Base Conversion Rate will be adjusted based on the
following formula:
SPo
ER' = ERo X --------
SPo - C
where,
ERo = the Base Conversion Rate in effect immediately prior to
the Ex-Dividend Date for such distribution;
ER' = the new Base Conversion Rate in effect immediately after
the Ex-Dividend Date for such distribution;
SPo = the Last Reported Sale Price of the Common Stock on the
Trading Day immediately preceding the Ex-Dividend Date
for such distribution; and
C = the amount in cash per share of Common Stock of the
Company distributes to holders of Common Stock.
An adjustment to the Base Conversion Rate made pursuant to this clause (d) shall
become effective immediately after the Ex-Dividend Date for the applicable
dividend or distribution. If any dividend or distribution described in this
clause (d) is declared but not so paid or made, the new Base Conversion Rate
shall be readjusted to the Base Conversion Rate that would then be in effect if
such dividend or distribution had not been declared.
(e) If the Company or any of its Subsidiaries makes a
payment in respect of a tender or exchange offer for Common Stock, to the extent
that the cash and value of any other consideration included in the payment per
share of Common Stock exceeds the Last Reported Sale Price of the Common Stock
on the Trading Day next succeeding the last date on which tenders or exchanges
may be made pursuant to such tender or exchange offer, the Base Conversion Rate
will be increased based on the following formula:
AC + (SP' x OS')
ER' = ERo X ------------------
OSo x SP'
where,
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ERo = the Base Conversion Rate in effect at the close of
business on the last Trading Day of the 10 consecutive
Trading Day period commencing on the Trading Day next
succeeding the date such tender or exchange offer
expires;
ER' = the new Base Conversion Rate in effect immediately
following the last Trading Day of the 10 consecutive
Trading Day period commencing on the Trading Day next
succeeding the date such tender or exchange offer
expires;
AC = the aggregate value of all cash and any other
consideration (as determined by the Company's Board of
Directors) paid or payable for shares purchased in such
tender or exchange offer;
OSo = the number of shares of Common Stock outstanding
immediately prior to the expiration of such tender or
exchange offer;
OSia = the number of shares of Common Stock outstanding
immediately after the expiration of such tender or
exchange offer (after giving effect to the purchase or
exchange of shares pursuant to such tender or exchange
offer); and
SPia = the average of the Last Reported Sale Prices of Common
Stock over the 10 consecutive Trading Day period
commencing on the Trading Day next succeeding the date
such tender or exchange offer expires.
The adjustment to the Base Conversion Rate under this clause (e) shall become
effective immediately following the tenth Trading Day next succeeding the date
such tender or exchange offer expires; provided that, for purposes of
determining the Base Conversion Rate, in respect of any conversion during the
ten Trading Days following the date that any tender or exchange offer expires,
references within this clause (e) to 10 Trading Days shall be deemed replaced
with such lesser number of Trading Days as have elapsed between the date such
tender or exchange offer expires and the relevant Conversion Date. If the
Company or one of its Subsidiaries is obligated to purchase Common Stock
pursuant to any such tender or exchange offer but are permanently prevented by
applicable law from effecting any such purchase or all such purchases are
rescinded, the new Base Conversion Rate shall be readjusted to be the Base
Conversion Rate that would be in effect if such tender or exchange offer had not
been made.
(f) Except as set forth in this Section 12.02, the Company
will not adjust the Base Conversion Rate for the issuance of shares of Common
Stock or any securities convertible into or exchangeable for shares of Common
Stock or the right to purchase shares of Common Stock or such convertible or
exchangeable securities. Further, if the application of the foregoing formulas
in this Section 12.02 would result in a decrease in the Base Conversion Rate, no
adjustment to the Base Conversion Rate will be made (except on account of share
combinations).
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(g) No adjustment to the Base Conversion Rate will be made
unless as specifically set forth in this Section 12.02 and Section 12.03.
Further, in the event of an adjustment to the Base Conversion Rate pursuant to
Section 12.02(d) or Section 12.02(e), in no event will the Base Conversion Rate
exceed 50 shares of Common Stock per $1,000 principal amount of Securities
(subject to adjustment pursuant to clauses (a) (b) or (c) above). For the
avoidance of doubt, this cap on the Base Conversion Rate will not apply to an
adjustment to the Base Conversion Rate pursuant to Section 12.02(a), Section
12.02(b) and Section 12.02(c).
(h) Without limiting the foregoing, no adjustment to the
Base Conversion Rate need be made:
(i) upon the issuance of any shares of Common Stock
pursuant to any present or future plan providing for the reinvestment of
dividends or interest payable on securities of the Company and the
investment of additional optional amounts in shares of Common Stock under
any plan;
(ii) upon the issuance of any shares of Common Stock or
options or rights to purchase shares of Common Stock pursuant to any
present or future employee, director or consultant benefit plan or program
or employee stock purchase plan of or assumed by the Company or any of its
Subsidiaries;
(iii) upon the issuance of any shares of Common Stock
pursuant to any option, warrant, right, or exercisable, exchangeable or
convertible security not described in clause (ii) above and outstanding as
of the Issue Date;
(iv) upon the issuance of any shares of Common Stock or
warrants to acquire Common Stock in any public offering or private
placement or in connection with any acquisition;
(v) for a change in the par value of the Common Stock;
(vi) for accrued and unpaid Interest (including
Additional Interest, if any); or
(vii) in connection with the privately negotiated
prepaid forward share purchase transaction with Bear, Xxxxxxx & Co. or one
of its Affiliates entered into in connection with the issuance of the
Securities.
(i) No adjustment to the Base Conversion Rate will be
required unless the adjustment, taken together with all other as-yet-unmade
adjustments, would require an increase or decrease of at least 1% of the Base
Conversion Rate. If the adjustment is not made because the adjustment does not
change the Base Conversion Rate by at least 1%, then the adjustment that is not
made will be carried forward and taken into account in any future adjustment.
All required calculations will be made to the nearest cent or 1/1,000th of a
share, as the case may be. Notwithstanding the foregoing, if the Securities are
called for redemption, all adjustments not made on or prior to the date 30 days
prior to the applicable Redemption Date will be made effective as of such date
30 days prior to such Redemption Date. In addition, all adjustments not
previously taken into account shall be made upon conversion.
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(j) Whenever the Base Conversion Rate and Incremental Share
Factor 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 Base Conversion Rate and Incremental Share Factor after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Trust Officer of the Trustee shall have received
such Officers' Certificate, the Trustee shall not be deemed to have knowledge of
any adjustment of the Base Conversion Rate and Incremental Share Factor and may
assume that the last Base Conversion Rate and Incremental Share Factor of which
it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the Base
Conversion Rate and Incremental Share Factor setting forth the adjusted Base
Conversion Rate and Incremental Share Factor and the date on which each
adjustment becomes effective and shall mail such notice of such adjustment of
the Base Conversion Rate and Incremental Share Factor to the Holder of each
Security at such Holder's last address appearing on the Securities Register
provided for in Section 2.05 of this Indenture within 20 days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
(k) For purposes of this Section 12.02, 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. If the
Company pays any dividend or makes any distribution on, or issues any rights,
options or warrants in respect of, shares of Common Stock held in treasury by
the Company, the Company shall not issue, transfer or convey such shares of
Common Stock in a manner that would have the effect of circumventing the
provisions of this Section 12.02.
(l) Whenever any provision of this Article 12 requires a
calculation of an average of Last Reported Sale Prices over a span of multiple
days, the Company will make appropriate adjustments (determined in good faith by
the Company's Board of Directors) to account for any adjustment to the Base
Conversion Rate that becomes effective, or any event requiring an adjustment to
the Base Conversion Rate where the Ex-Dividend Date of the event occurs, at any
time during the period from which the average is to be calculated.
Section 12.03 Adjustment to Common Stock Delivered Upon Certain
Fundamental Changes. (a) If a Holder elects to convert Securities pursuant to
Section 12.01(a)(iv)(B) above in connection with a Fundamental Change on or
following the effective date of the transaction and the transaction has an
effective date occurring on or prior to May 20, 2012, subject to Section 12.04
below, the Applicable Conversion Rate for such converted Securities shall be
increased by an additional number of shares of Common Stock (the "ADDITIONAL
SHARES") as described below. Any conversion will be deemed to have occurred in
connection with such Fundamental Change if such Securities are surrendered for
conversion at a time when the Securities would be convertible in light of the
expected or actual occurrence of a Fundamental Change and notwithstanding the
fact that a Security may then be convertible because another condition to
conversion also has been satisfied.
(b) The number of Additional Shares will be determined by
reference to the table attached as Schedule A hereto, based on the actual
effective date on which the Fundamental Change occurs or becomes effective (the
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"EFFECTIVE Date") and the Stock Price paid per share of Common Stock with
respect to such Fundamental Change; provided that if the Stock Price is between
two Stock Price amounts set forth in such table or the Effective Date is between
two Effective Dates in the table, the number of Additional Shares will be
determined by a straight-line interpolation between the number of Additional
Shares set forth for the higher and lower Stock Price amounts and the two dates,
as applicable, based on a 365-day year; provided further that if the Stock Price
is greater than $125.00 per share (subject to adjustment as set forth in clause
(c) below) or less than $20.00 per share (subject to adjustment as set forth in
clause (c) below), then no Additional Shares will be added to the Applicable
Conversion Rate. Notwithstanding the foregoing, the Applicable Conversion Rate
shall not exceed 50 per $1,000 principal amount of Securities on account of
adjustments pursuant to this Section 12.03, subject to adjustments set out in
Section 12.02(a) through (e).
(c) The Stock Prices set forth in the first row of the table
in Schedule A hereto will be adjusted as of any date on which the Base
Conversion Rate of the Securities is otherwise adjusted pursuant to Section
12.02. The adjusted Stock Prices will equal the Stock Prices applicable
immediately prior to such adjustment, multiplied by a fraction, the numerator of
which is the Base Conversion Rate immediately prior to such adjustment and the
denominator of which is the Base Conversion Rate as so adjusted. The number of
Additional Shares set forth in such table will be adjusted in the same manner as
the Base Conversion Rate as set forth in Section 12.02.
Section 12.04 Conversion After a Public Acquirer Change of Control.
(a) In the event of a Public Acquirer Change of Control, the Company may, in
lieu of increasing the Applicable Conversion Rate by Additional Shares pursuant
to Section 12.03 above and in lieu of application of Section 12.05, elect to
permanently adjust the Conversion Rate and the related Conversion Obligation
such that from and after the Effective Date of such Public Acquirer Change of
Control, Holders shall be entitled to convert their Securities, subject to the
conditions in Section 12.01(a) or (b), into cash and/or a number of shares of
Public Acquirer Common Stock, if applicable, in accordance with procedures and
elections contemplated by Section 12.01. The adjusted Base Conversion Rate shall
be the Base Conversion Rate in effect immediately before the Public Acquirer
Change of Control by multiplying it by a fraction:
(i) the numerator of which will be the average of the
Daily VWAP of the Common Stock for the five consecutive VWAP Trading Days
prior to but excluding the Effective Date of such Public Acquirer Change
of Control, and
(ii) the denominator of which will be the average of
Daily VWAP of the Public Acquirer Common Stock (determined in a manner
consistent with the method used with respect to the Common Stock) for the
five consecutive VWAP Trading Days commencing on the VWAP Trading Day next
succeeding the Effective Date of such Public Acquirer Change of Control.
The Incremental Share Factor will be adjusted in the same manner described
in Section 12.02 above.
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(b) In order to make the election pursuant to this Section
12.04, the Company and the issuer of the Public Acquirer Common Stock shall
execute with the Trustee a supplemental indenture providing that each Security
shall be exchangeable into Public Acquirer Common Stock and execute an amendment
to the Registration Rights Agreement (to the extent any Registrable Securities
(as defined therein) remain outstanding) to make the provisions thereof apply to
the Public Acquirer Common Stock. Such supplemental indenture shall provide for
provisions and adjustments which shall be as nearly equivalent as may be
practicable to the provisions and adjustments provided for in this Article 12 as
determined in good faith by the Company's Board of Directors or such issuer
(which shall be conclusive).
(c) At least 35 Scheduled Trading Days prior to the expected
Effective Date of a Fundamental Change that is also a Public Acquirer Change of
Control, the Company will provide a notice to all Holders, the Trustee and the
Paying Agent stating whether the Company (i) elects to adjust the Applicable
Conversion Rate and the related conversion obligation as set forth in this
Section 12.04 or (ii) does not elect to so adjust the Applicable Conversion Rate
and the related conversion obligation, in which case the Holders will have the
right to convert Securities and, if applicable, receive Additional Shares as set
forth in Section 12.03. In addition, upon a Public Acquirer Change of Control,
in lieu of converting the Securities, the Holders can, subject to the conditions
set forth therein, require the Company to repurchase all or a portion of the
Securities pursuant to Section 11.01
Section 12.05 Effect of Recapitalizations, Reclassifications, and
Changes of Common Stock. (a) Except as otherwise provided in Section 12.04, if
any of the following events occur: (i) any recapitalization, reclassification or
change of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 12.02(a) applies), (ii) any consolidation, merger,
binding share exchange or combination of the Company with another Person, or
(iii) any sale or conveyance to another Person of all or substantially all of
the property and assets of the Company and its Subsidiaries, in each case as a
result of which Common Stock would be converted into, or exchanged for, stock,
other securities, other property or assets (including cash or any combination
thereof) (any such event or transaction, a "REORGANIZATION EVENT"), then,
following the effective time of the Reorganization Event, the right to receive
shares of Common Stock upon conversion of Securities, if any, will be changed
into a right to receive the kind and amount of shares of stock, other securities
or other property or assets (including cash or any combination thereof) (the
"REFERENCE PROPERTY") that a Holder would have been entitled to receive upon
such Reorganization Event in respect of Common Stock, as provided below. If the
Reorganization Event causes Common Stock to be converted into the right to
receive more than a single type of consideration (determined based in part upon
any form of stockholder election), the Reference Property will be deemed to be
the weighted average of the types and amounts of consideration received by the
holders of Common Stock that affirmatively make such an election. The Company
will notify Holders of the weighted average as soon as practicable after such
determination is made. Upon such Reorganization Event, the Company or any
Successor Company will enter into a supplemental indenture consistent with the
foregoing. Such supplemental indenture shall provide for provisions and
adjustments which shall be as nearly equivalent as may be practicable to the
provisions and adjustments provided for in this Article 12, Article 10 and
Article 11 and the definition of Fundamental Change, as appropriate, as
determined in good faith by the Company (which determination shall be conclusive
70
and binding), to make such provisions apply to such other Person if different
from the original issuer of the Securities.
(b) Following the effective time of any such Reorganization
Event, settlement of Securities converted shall be in units of Reference
Property or cash and units of Reference Property, if applicable, determined in
accordance with Section 12.01(d)(i) and Section 12.01(d)(ii) above. The
Applicable Conversion Rate will relate to units of Reference Property (a "unit"
of Reference Property being the kind and amount of reference property that a
holder of one share of Common Stock would have received in such transaction,
assuming for the purpose of the determining the Applicable Conversion Rate and
the consideration a Holder would have received in such transaction that such
Holder had converted the Securities and received consideration based on an
Observation Period ending on the date immediately preceding the effective date
of such transaction); and the Daily VWAP will be determined as described in the
definition thereof, replacing references therein to Common Stock with references
to units of such Reference Property and references to Bloomberg page specified
therein with references to the applicable page.
(c) Any issuer of securities included in the Reference
Property shall execute an amendment to the Registration Rights Agreement (to the
extent any Registrable Securities (as defined therein) remain outstanding) to
make the provisions thereof applicable to such securities included in the
Applicable Consideration.
(d) The Company shall cause notice of the execution of any
supplemental indenture required by this Section 12.05 to be mailed to each
Holder, at its address appearing on the Securities Register provided for in
Section 2.05 of this Indenture, within 20 calendar days after execution thereof.
Failure to deliver such notice shall not affect the legality or validity of such
supplemental indenture.
(e) The above provisions of this Section 12.05 shall
similarly apply to successive Reorganization Events.
(f) If this Section 12.05 applies to any event or
occurrence, Section 12.02 shall not apply in respect of such event or
occurrence.
(g) The Company shall not become a party to any
Reorganization Event unless its terms are consistent with the foregoing. None of
the foregoing provisions shall affect the right of a Holder of Securities to
convert the Securities as set forth in and subject to Section 12.01 prior to the
effective time of such Reorganization Event.
(h) Upon the Effective Date of a Fundamental Change pursuant
to which the Company is required to increase the Applicable Conversion Rate by
the Additional Shares pursuant to Section 12.03, any related conversions will be
settled as follows:
(i) If the last day of the applicable Observation
Period related to the Securities submitted for conversion in connection
with the Fundamental Change is prior to the third Scheduled Trading Day
preceding the anticipated effective date of the Fundamental Change, the
Company will settle such conversion pursuant to Section 12.01(d) by
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delivering the number of shares of Common Stock or the amount of cash and
shares of Common Stock (if any), as the case may be, based on the
Applicable Conversion Rate then in effect without regard to the number of
Additional Shares to be added to the Applicable Conversion Rate pursuant
to Section 12.03, as promptly as practicable following the last day of the
applicable Observation Period. In addition, as soon as practicable
following the Effective Date of the Fundamental Change, the Company will
deliver the increase in such amount of cash and Reference Property
deliverable in lieu of Common Stock, as if the Applicable Conversion Rate
had been increased by such number of Additional Shares during the related
Observation Period (and based upon the same Daily VWAP for each Trading
Day in such Observation Period). If such increased amount results in an
increase to the amount of cash to be paid to Holders, the Company will pay
such increase in cash, and if such increase results in an increase to the
number of shares of Common Stock, the Company will deliver such increase
by delivering Reference Property based on such increased number of shares
of Common Stock; or
(ii) If the last day of the applicable Observation
Period related to Securities submitted for conversion in connection with
the Fundamental Change is on or following the third Scheduled Trading Day
preceding the Effective Date of the Fundamental Change, the Company will
settle such conversion pursuant to Section 12.01(d) (based on the
Applicable Conversion Rate as increased by the Additional Shares as
described in Section 12.03 above) on the later to occur of (1) the
Effective Date of the Fundamental Change and (2) as promptly as
practicable following the last day of the applicable Observation Period
(in the case of a full share settlement).
Section 12.06 Responsibility of Trustee. The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to
the Company or any Holder of Securities to determine when the Securities become
convertible, the Base Conversion Rate, the Incremental Share Factor, or whether
any facts exist which may require any adjustment of the Base Conversion Rate or
Incremental Share Factor, or with respect to the nature or extent or calculation
of any such adjustment when made, or with respect to the method employed in
making the same. The Trustee and any other Conversion Agent shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time
be issued or delivered upon the conversion of any Security; and the Trustee and
any other Conversion Agent make no representations with respect thereto. Neither
the Trustee nor any Conversion Agent shall be responsible for any failure of the
Company to issue, transfer or deliver any cash or shares of Common Stock or
stock certificates or other securities or property upon the surrender of any
Security for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article 12.
Without limiting the generality of the foregoing, neither the Trustee nor any
Conversion Agent shall be under any responsibility to determine the correctness
of any provisions contained in any supplemental indenture entered into pursuant
to Section 12.05 relating either to the kind or amount of shares of stock or
securities or property (including cash) receivable by Holders upon the
conversion of their Securities after any Reorganization Event or to any
adjustment to be made with respect thereto, but, subject to the provisions of
Section 8.01, may accept as conclusive evidence of the correctness of any such
72
provisions, and shall be protected in relying upon, an Officers' Certificate
with respect thereto.
Section 12.07 Stockholder Rights Plan. To the extent that the
Company has a rights plan in effect upon conversion of the Securities into
Common Stock, the Holder will receive upon conversion of the Securities in
respect of which the Company has elected to deliver Common Stock, if applicable,
the rights under the rights plan, unless prior to any conversion, the rights
have separated from the Common Stock, in which case, and only in such case, the
Base Conversion Rate will be adjusted at the time of separation as if the
Company distributed to all holders of Common Stock shares of the Company's
Capital Stock, evidences of indebtedness or assets as described in Section
12.02(c) above, subject to readjustment in the event of the expiration,
termination or redemption of such rights. In lieu of any such adjustment, the
Company may amend such applicable stockholder rights agreement to provide that
upon conversion of the Securities the Holders will receive, in addition to the
Common Stock issuable upon such conversion, the rights which would have attached
to such Common Stock if the rights had not become separated from the Common
Stock under such applicable stockholder rights agreement.
Section 12.08 No Stockholder Rights. For the avoidance of doubt,
Holders of Securities will not have any rights as holders of Common Stock
(including voting rights and rights to receive any dividends or other
distributions on the Common Stock) if and until the Securities are converted
into shares of Common Stock.
Section 12.09 Withholding Taxes for Adjustments in Conversation
Rate. If the Company pays withholding taxes on behalf of a Holder as a result of
an adjustment to the Base Conversion Rate, the Company may, at its option, set
off such payments against payments of cash and shares of Common Stock on the
Securities.
ARTICLE XIII
[RESERVED]
----------
ARTICLE XIV
MISCELLANEOUS
-------------
Section 14.01 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the provision required by
the TIA shall control.
Section 14.02 Notices. Any notice or communication shall be in
writing in the English language (including telecopy or e-mail promptly confirmed
in writing) and delivered in person or mailed by first-class mail addressed as
follows:
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if to the Company:
L-1 Identity Solutions, Inc.
000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Fax.: (000) 000-0000
The Company or the Trustee by notice to the other may designate
additional or different addresses (including e-mail addresses) for subsequent
notices or communications.
Any notice or communication mailed to a registered Holder shall be
mailed to the Holder at the Holder's address as it appears on the Securities
Register and shall be sufficiently given if so mailed within the time
prescribed; provided that notices given to Holders holding Securities in
book-entry form may be given through facilities of DTC or any successor
depositary.
Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it, except that notices to the
Trustee shall be effective only upon receipt.
Section 14.03 Communication by Holders with other Holders. Holders
may communicate pursuant to TIA ss. 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Company, the Trustee,
the Registrar and anyone else shall have the protection of TIA ss. 312(c).
Section 14.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or refrain
from taking any action under this Indenture, the Company shall furnish to the
Trustee:
(a) an Officers' Certificate in form and substance
reasonably satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
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Section 14.05 Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a covenant or condition
provided for in this Indenture shall include:
(a) a statement that the individual making such certificate
or opinion has read such covenant or condition;
(b) 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;
(c) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(d) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
In giving such Opinion of Counsel, counsel may rely as to factual
matters on an Officers' Certificate or on certificates of public officials.
Section 14.06 When Securities Are Disregarded. In determining
whether the Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent, Securities owned by the Company
or by any Affiliate of the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which a Trust Officer of the Trustee actually knows are so owned
shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
Section 14.07 Rules by Trustee, Paying Agent and Registrar. The
Trustee may make reasonable rules for action by, or a meeting of, Holders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
Section 14.08 Legal Holidays. A "LEGAL HOLIDAY" is a Saturday, a
Sunday or other day on which commercial banking institutions are authorized or
required to be closed in New York, New York. If a payment date is a Legal
Holiday, payment shall be made on the next succeeding day that is not a Legal
Holiday, and no interest or Additional Interest, if any, shall accrue for the
intervening period. If a Regular Record Date is a Legal Holiday, the record date
shall not be affected.
Section 14.09 Governing Law. THIS INDENTURE AND THE SECURITIES SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
Section 14.10 No Recourse Against Others. An incorporator, director,
officer, manager, employee, member, partner or stockholder of the Company,
solely by reason of this status, shall not have any liability for any
obligations of the Company under the Securities, this Indenture, or for any
75
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability; provided, however, the parties acknowledge that such waiver may not
be effective to waive liability under federal securities laws. The waiver and
release shall be part of the consideration for the issue of the Securities.
Section 14.11 Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 14.12 Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
Section 14.13 Qualification of Indenture. The Company shall qualify
this Indenture under the TIA in accordance with the terms and conditions of the
Registration Rights Agreement and shall pay all reasonable costs and expenses
(including attorneys' fees and expenses for the Company, the Trustee and the
Holders) incurred in connection therewith, including, but not limited to, costs
and expenses of qualification of this Indenture and the Securities and the
printing of this Indenture and the Securities.
Section 14.14 Table of Contents; Headings. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
Section 14.15 Severability Clause. In case any provision in this
Indenture 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 and such provision shall be ineffective only to the extent of
such invalidity, illegality or unenforceability.
Section 14.16 Calculations. Except as otherwise provided herein, the
Company will be responsible for making all calculations called for under this
Indenture and the Securities. The Company will make all such calculations in
good faith and, absent manifest error, its calculations will be final and
binding on Holders. The Company upon request will provide a schedule of its
calculations to each of the Trustee and the Conversion Agent, and each of the
Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy
of the Company's calculations without independent verification. The Trustee will
deliver a copy of such schedule to any Holder upon the request of such Holder.
Section 14.17 Waiver of Jury Trial. EACH OF THE COMPANY AND THE
TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
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Section 14.18 Force Majeure. In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services; it being understood that the Trustee shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
[Remainder of the page intentionally left blank]
77
IN WITNESS WHEREOF, the parties have caused this Indenture to be
duly executed as of the date first written above.
L-1 IDENTITY SOLUTIONS, INC.
By: /s/ Xxxxx X. XxXxxxx
-------------------------------
Name: Xxxxx X. XxXxxxx
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
THE BANK OF NEW YORK, AS TRUSTEE
By: /s/ Xxxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
78
SCHEDULE A
The following table sets forth the number of Additional Shares to be
received per $1,000 principal amount of Securities pursuant to Section 12.03 of
this Indenture.
STOCK PRICE
-----------------------------------------------------------------------------------------------------
EFFECTIVE $20.00 $25.00 $30.00 $32.00 $35.00 $40.00 $50.00 $60.00 $70.00 $80.00 $125.00
DATE -----------------------------------------------------------------------------------------------------
May 17, 2007*.... 18.7500 14.5342 12.5349 12.0659 10.3794 8.3416 5.8926 4.5043 3.6150 2.9939 1.5513
May 15, 2008..... 18.7500 13.4454 11.3257 10.8547 9.1932 7.2375 4.9896 3.7769 3.0233 2.5053 1.3104
May 15, 2009..... 18.7500 12.1702 9.8808 9.4061 7.7783 5.9343 3.9524 2.9601 2.3684 1.9681 1.0441
May 15, 2010..... 18.7500 10.7498 8.1457 7.6506 6.0587 4.3687 2.7548 2.0449 1.6445 1.3757 0.7426
May 15, 2011..... 18.7500 9.2403 5.9291 5.3675 3.8231 2.4082 1.3905 1.0487 0.8601 0.7274 0.3984
May 20, 2012..... 18.7500 8.7500 2.0833 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000
------------------------------
* Issue date of the notes
Schedule A
EXHIBIT A
[FORM OF FACE OF SECURITY]
[Restricted Securities Legend, if applicable]
[Global Security Legend, if applicable]
No. [___] Principal Amount $[__________], as revised by the Schedule
of Increases and Decreases in Global Security attached hereto.
CUSIP NO.: [ ]
ISIN: [ ]
3.75% Convertible Senior Notes due 2027
L-1 Identity Solutions, Inc., a Delaware corporation, promises to
pay to [____________________], or registered assigns, the principal sum of
[____________________] Dollars, as revised by the Schedule of Increases and
Decreases in Global Security attached hereto, on May 15, 2027.
Interest Payment Dates: May 15 and November 15, commencing
November 15, 2007
Regular Record Dates: May 1 and November 1
Additional provisions of this Security are set forth on the attached
"Terms of Securities."
Dated: [__________]
L-1 Identity solutions, Inc.
By: _______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK
as Trustee, certifies that this is one of the
Securities referred to in the Indenture.
By: ________________________________
Authorized Signatory
TERMS OF SECURITIES
3.75% CONVERTIBLE SENIOR NOTES DUE 2027
The Company issued this Security under an Indenture dated as of May
17, 2007 (as it may be amended or supplemented from time to time in accordance
with the terms thereof, the "INDENTURE"), among the Company and the Trustee, to
which reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders. Additional Securities may be issued under the Indenture
in an unlimited aggregate principal amount subject to certain conditions
specified in the Indenture.
1. Interest
L-1 Identity Solutions, Inc., a Delaware corporation (together with
its successors and assigns under the Indenture hereinafter referred to, being
herein called the "COMPANY"), promises to pay interest on the principal amount
of this Security at the rate of 3.75% per annum until May 15, 2027.
The Company will pay interest semiannually in arrears on May 15 and
November 15 of each year (each, an "INTEREST PAYMENT DATE"), commencing November
15, 2007, to Holders of record as of the relevant Regular Record Date. Interest
on the Securities will accrue from the most recent date to which interest has
been paid on the Securities or, if no interest has been paid, from May 17, 2007.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. Method of Payment
By no later than 11:00 a.m. (New York City time) on the date on
which any principal of, or interest (including any Additional Interest) on, any
Security is due and payable, the Company shall deposit with the Paying Agent
money sufficient to pay such amount. The Company will pay principal and interest
in money of the United States that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of Securities
represented by a Global Security (including principal and interest (including
any Additional Interest)) will be made by wire transfer of immediately available
funds to the accounts specified by The Depository Trust Company. The Company
will pay principal of Definitive Securities at the office or agency designated
by the Company for such purpose. Interest (including any Additional Interest),
on Definitive Securities will be payable (i) to Holders having an aggregate
principal amount of $5,000,000 or less, by check mailed to the Holders of these
Securities and (ii) to Holders having an aggregate principal amount of more than
$5,000,000, either by check mailed to each Holder or, upon application by a
Holder to the Registrar not later than the relevant record date, by wire
transfer in immediately available funds to that Holder's account within the
United States, which application shall remain in effect until the Holder
notifies, in writing, the Registrar to the contrary.
3. Redemption
No sinking fund is provided for the Securities. Subject to certain
conditions specified in the Indenture, the Securities will be redeemable, at the
option of the Company, in whole or in part at any time and from time to time, on
or after May 20, 2012, at a Redemption Price specified in the Indenture.
In the event that the Redemption Date occurs after a Regular
Record Date for the payment of interest and on or prior to the related Interest
Payment Date, the Redemption Price for any such Securities to be redeemed shall
be 100% of the principal amount of such Securities, and accrued and unpaid
interest (including any Additional Interest) shall be paid to the Holder on such
Regular Record Date.
4. Purchase by the Company at the Option of the Holder; Purchase
at the Option of the Holder Upon a Fundamental Change
(a) Subject to the terms and conditions of the Indenture, a Holder
shall have the option to require the Company to purchase all
or a portion of its Securities held by such Holder on each of
May 15, 2012, May 15, 2017 and May 15, 2022 at a Purchase
Price specified in the Indenture.
(b) If a Fundamental Change shall occur at any time, each Holder
shall have the right, at such Holder's option and subject to
the terms and conditions of the Indenture, to require the
Company to purchase all or a portion of its Securities, in a
multiple of $1,000 at a Fundamental Change Purchase Price
specified in the Indenture.
5. Conversion
Subject to the conditions and procedures for conversion set forth in
the Indenture, a Holder may convert its Securities, on or prior to January 15,
2027, only when one or more of the conditions specified in the Indenture are met
and during the related specific period. On or after January 15, 2027, a Holder
may convert its Securities until the close of business on the second Business
Day immediately preceding Stated Maturity regardless of such conditions
specified in the Indenture.
The initial Base Conversion Rate is 31.25 shares of Common Stock per
$1,000 principal amount of Securities, subject to adjustment in certain events
described in the Indenture. Upon conversion, the Company will either (i) deliver
shares of Common Stock based on the then Applicable Conversion Rate or (ii) pay
cash and shares of Common Stock, if any, as set forth in the Indenture. As
provided in the Indenture, the Company shall deliver cash in lieu of any
fractional share of Common Stock.
A Holder may convert a portion of the Securities only if the
principal amount of such portion is $1,000 or a multiple of $1,000. No payment
or adjustment shall be made for dividends on the Common Stock except as provided
in the Indenture.
6. Denominations; Transfer; Exchange
The Securities are in registered form without coupons in
denominations of principal amount of $1,000 and multiples of $1,000. A Holder
may transfer or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes and fees required by law
or permitted by the Indenture. The Registrar need not register the transfer of
or exchange of Securities (i) so selected for redemption or, if a portion of any
Security is selected for redemption, the portion thereof selected for
redemption; (ii) surrendered for conversion or, if a portion of any Security is
surrendered for conversion, the portion thereof surrendered for conversion; or
(iii) in certificated form for a period of 15 days prior to mailing a notice of
redemption under Article 6 of the Indenture.
7. Persons Deemed Owners
The registered Holder of this Security may be treated as the owner
of it for all purposes.
8. Unclaimed Money
If money for the payment of principal or interest (including any
Additional Interest) remains unclaimed for two years, the Trustee or Paying
Agent shall pay the money back to the Company, subject to applicable abandoned
property laws. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
9. Amendment, Waiver
Subject to certain exceptions, the Indenture contains provisions
permitting an amendment of the Indenture or the Securities with the written
consent of the Holders of at least a majority in principal amount of the then
outstanding Securities and the waiver of any Event of Default (other than with
respect to nonpayment or in respect of a provision that cannot be amended
without the written consent of each Holder affected) or noncompliance with any
provision with the written consent of the Holders of a majority in principal
amount of the then outstanding Securities.
In addition, the Indenture permits an amendment of the Indenture or
the Securities without the consent of any Holder under certain circumstances
specified in the Indenture.
10. Defaults and Remedies
Subject to the following paragraph, if an Event of Default specified
in the Indenture occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Securities may declare all the Securities
by notice to the Company to be due and payable immediately. In addition, certain
specified Events of Default will cause the Securities to become immediately due
and payable without further action by the Holders.
The sole remedy for an Event of Default relating to the Company's
failure to comply with the reporting obligations under Article 5 of the
Indenture, and for any failure to comply with the requirements of Section
314(a)(1) of the TIA, will for the 365 days after the occurrence of such an
Event of Default consist exclusively of the right to receive Additional Interest
on the principal amount of the Securities at a rate equal to 0.50% per annum.
Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in principal amount of the Securities
may direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Holders notice of any continuing Default or Event of Default
(except a Default or Event of Default in payment of principal or interest
(including any Additional Interest)) if it determines that withholding notice is
in their interest.
11. Trustee Dealings with the Company
Subject to certain limitations set forth in the Indenture, the
Trustee under the Indenture, in its individual or any other capacity, may become
the owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
12. No Recourse Against Others
An incorporator, director, officer, employee, Affiliate or
stockholder of the Company, solely by reason of this status, shall not have any
liability for any obligations of the Company under the Securities, the Indenture
or for any claim based on, in respect of or by reason of such obligations or
their creation. By accepting a Security, each Holder waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
13. Authentication
This Security shall not be valid until an authorized signatory of
the Trustee manually authenticates this Security.
14. Abbreviations
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entirety), JT TEN (=joint tenants with rights of survivorship and not as tenants
in common), CUST (=custodian) and U/G/M/A (=Uniform Gift to Minors Act).
15. CUSIP Numbers
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Holders. No representation is made as
to the accuracy of such numbers either as printed on the Securities or as
contained in any notice of redemption, and reliance may be placed only on the
other identification numbers placed thereon.
16. Governing Law
THIS SECURITY AND THE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
The Company will furnish to any Holder upon written request and
without charge to the Holder a copy of the Indenture which has in it the text of
this Security. Requests may be made to:
L-1 Identity Solutions, Inc.
000 Xxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Fax: (000) 000-0000
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
______________________________________________________________
(Print or type assignee's name, address and zip code)
______________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.))
and irrevocably appoint ___________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Date: ________________________ Your Signature:______________________
______________________________________________________________
Signature Guarantee:______________________________________________________
(Signature must be guaranteed)
_____________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program, pursuant to
S.E.C. Rule 17Ad-15.
In connection with any transfer or exchange of any of the Securities evidenced
by this certificate occurring prior to the date that is two years after the
later of the date of original issuance of such Securities and the last date, if
any, on which such Securities were owned by the Company or any Affiliate of the
Company, the undersigned confirms that such Securities are being:
CHECK ONE BOX BELOW:
[_] 1 acquired for the undersigned's own account, without transfer; or
[_] 2 transferred to the Company; or transferred pursuant to an
effective registration
[_] 3 statement under the Securities Act of 1933, as amended (the
"Securities Act"); or
[_] 4 transferred pursuant to and in compliance with Rule 144A under the
Securities Act; or transferred pursuant to another available
exemption
[_] 5 from the registration requirements of the Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Securities evidenced by this certificate in the name of any Person other
than the registered Holder thereof; provided, however, that if box (5) is
checked, the Trustee or the Company may require, prior to registering any such
transfer of the Securities, in their sole discretion, such legal opinions,
certifications and other information as the Trustee or the Company may
reasonably request to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act, such as the exemption provided by Rule 144
under such Act.
________________________________
Signature:
Signature Guarantee:
________________________________ ________________________________
(Signature must be guaranteed) Signature:
The signature(s) should be guaranteed by an eligible guarantor institution
(banks, stockbrokers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program, pursuant to
S.E.C. Rule 17Ad-15.
TO BE COMPLETED BY PURCHASER IF (4) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this Security for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, as amended,
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
________________________________
Dated:
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Principal
Amount of this Signature of
Amount of Amount of Global authorized
decrease in increase in Security signatory of
Principal Principal following such Trustee or
Amount of this Amount of this decrease or Securities
Date Global Security Global Security increase Custodian
---- --------------- --------------- -------- ---------
FORM OF CONVERSION NOTICE
To: L-1 Identity Solutions, Inc.
The undersigned registered Holder of this Security hereby exercises the
option to convert this Security, or portion hereof (which is $1,000 principal
amount or a multiple thereof) designated below in accordance with the terms of
the Indenture referred to in this Security, and directs that cash, and the
shares of Common Stock of L-1 Identity Solutions, Inc., if any, issuable and
deliverable upon such exchange, and any Securities representing any unconverted
principal amount hereof, be issued and delivered to the registered Holder hereof
unless a different name has been indicated below. If cash, shares or any portion
of this Security not converted are to be issued in the name of a Person other
than the undersigned, the undersigned shall pay all transfer taxes payable with
respect thereto.
This notice shall be deemed to be an irrevocable exercise of the option to
exchange this Security.
Dated: _______________________________________________
_______________________________________________
Signature(s)
The signature(s) should be guaranteed by an
eligible guarantor institution (banks,
stockbrokers, savings and loan associations
and credit unions) with membership in an
approved signature guarantee medallion
program, pursuant to S.E.C. Rule 17Ad 15.
_______________________________________________
Signature Guarantee
Fill in for registration of shares if to be delivered, and Securities if to be
issued other than to and in the name of registered holder:
___________________________
(Name) Principal amount to be converted (if less than
all): $__________,000
___________________________
(Xxxxxx Xxxxxxx)
___________________________ _________________________________________
(City state and zip code) Social Security or Other Taxpayer Number
Please print name and address
FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE
To: L-1 IDENTITY SOLUTIONS, INC.
The undersigned registered Holder of this Security hereby acknowledges
receipt of a notice from L-1 Identity Solutions, Inc. (the "COMPANY") as to the
occurrence of a Fundamental Change and requests and instructs the Company to
repurchase this Security, or the portion hereof (which is $1,000 principal
amount or a multiple thereof) designated below, in accordance with the terms of
the Indenture referred to in this Security and directs that the check in payment
for this Security or the portion thereof and any Securities representing any
unrepurchased principal amount hereof, be issued and delivered to the registered
Holder hereof unless a different name has been indicated below. If any portion
of this Security not repurchased is to be issued in the name of a Person other
than the undersigned, the undersigned shall pay all transfer taxes payable with
respect thereto.
Dated: _______________________________________________
_______________________________________________
Signature(s)
The signature(s) should be guaranteed by an
eligible guarantor institution (banks,
stockbrokers, savings and loan associations
and credit unions) with membership in an
approved signature guarantee medallion
program, pursuant to S.E.C. Rule 17Ad 15.
_______________________________________________
Signature Guarantee
Fill in if a check is to be issued, or Securities are to be issued, other than
to and in the name of registered Holder:
______________________________
(Name) Principal amount to be purchased (if less
than all): $___________,000
______________________________
(Xxxxxx Xxxxxxx)
______________________________ ________________________________________
(City state and zip code) Social Security or Other Taxpayer Number
Please print name and address
FORM OF PURCHASE NOTICE
To: L-1 IDENTITY SOLUTIONS, INC.
The undersigned registered Holder of this Security hereby acknowledges
receipt of a notice from L-1 Identity Solutions, Inc.. (the "COMPANY") as to the
Holder's option to require the Company to repurchase this Security and requests
and instructs the Company to repurchase this Security, or the portion hereof
(which is $1,000 principal amount or a multiple thereof) designated below, in
accordance with the terms of the Indenture referred to in this Security and
directs that the check in payment for this Security or the portion thereof and
any Securities representing any unrepurchased principal amount hereof, be issued
and delivered to the registered Holder hereof unless a different name has been
indicated below. If any portion of this Security not repurchased is to be issued
in the name of a Person other than the undersigned, the undersigned shall pay
all transfer taxes payable with respect thereto.
Dated: _______________________________________________
_______________________________________________
Signature(s)
The signature(s) should be guaranteed by an
eligible guarantor institution (banks,
stockbrokers, savings and loan associations
and credit unions) with membership in an
approved signature guarantee medallion
program, pursuant to S.E.C. Rule 17Ad 15.
_______________________________________________
Signature Guarantee
Fill in if a check is to be issued, or Securities are to be issued, other than
to and in the name of registered Holder:
______________________________
(Name) Principal amount to be purchased (if less
than all): $___________,000
______________________________
(Xxxxxx Xxxxxxx)
______________________________ ________________________________________
(City state and zip code) Social Security or Other Taxpayer Number
Please print name and address
