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EXHIBIT 4.10
VERITAS SOFTWARE CORPORATION,
AS ISSUER,
VERITAS OPERATING CORPORATION,
AS ISSUER,
and
STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A.,
AS TRUSTEE
INDENTURE
DATED AS OF ________, 1999
_____% CONVERTIBLE SUBORDINATED NOTES DUE 2006
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TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions ............................................. 1
SECTION 1.02. Compliance Certificates and Opinions..................... 12
SECTION 1.03. Form of Documents Delivered to the Trustee............... 13
SECTION 1.04. Acts of Holders of Securities............................ 14
SECTION 1.05. Notices, Etc., to Trustee and the Issuers................ 16
SECTION 1.06. Notice to Holders of Securities; Waiver.................. 17
SECTION 1.07. Effect of Headings and Table of Contents................. 18
SECTION 1.08. Successors and Assigns................................... 18
SECTION 1.09. Separability Clause...................................... 18
SECTION 1.10. Benefits of Indenture.................................... 18
SECTION 1.11. Governing Law............................................ 18
SECTION 1.12. Legal Holidays........................................... 18
SECTION 1.13. Conflict with Trust Indenture Act........................ 19
SECTION 1.14. Indenture and Securities Solely Corporate Obligations.... 19
ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally.......................................... 20
SECTION 2.02. Form of Security......................................... 20
SECTION 2.03. Form of Election of Holder to Require Repurchase......... 31
SECTION 2.04. Form of Conversion Notice................................ 31
SECTION 2.05. Form of Certificate of Authentication.................... 33
ARTICLE 3
THE SECURITIES
SECTION 3.01. Title and Terms.......................................... 33
SECTION 3.02. Denominations............................................ 34
SECTION 3.03. Execution, Authentication, Delivery and Dating........... 34
SECTION 3.04. Registration of Transfer and Exchange; Restrictions on
Transfer..................................... 36
SECTION 3.05. Temporary Securities..................................... 39
SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities.......... 40
SECTION 3.07. Payment of Interest; Interest Rights Preserved........... 41
SECTION 3.08. Persons Deemed Owners.................................... 43
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SECTION 3.09. Cancellation.................................................................... 43
SECTION 3.10. Computation of Interest......................................................... 44
SECTION 3.11. CUSIP Numbers................................................................... 44
SECTION 3.12. Company to Determine Certain Matters............................................ 44
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture......................................... 44
SECTION 4.02. Application of Trust Money...................................................... 46
SECTION 4.03. Co-Obligor's Obligations Released............................................... 46
ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default............................................................... 47
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment.............................. 48
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee............................................................. 50
SECTION 5.04. Trustee May File Proofs of Claim................................................ 51
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities.......................................................... 52
SECTION 5.06. Application of Money Collected.................................................. 52
SECTION 5.07. Limitation on Suits............................................................. 53
SECTION 5.08. Unconditional Right of Holders to Receive Principal
Amount at Maturity, Issue Price, Accrued Original
Issue Discount, Redemption Price, Fundamental
Change Redemption Price and Interest and to
Convert............................................................. 54
SECTION 5.09. Restoration of Rights and Remedies.............................................. 54
SECTION 5.10. Rights and Remedies Cumulative.................................................. 54
SECTION 5.11. Delay or Omission Not Waiver.................................................... 55
SECTION 5.12. Control by Holders of Securities................................................ 55
SECTION 5.13. Waiver of Past Defaults......................................................... 55
SECTION 5.14. Undertaking for Costs........................................................... 56
SECTION 5.15. Waiver of Stay, Extension and Usury Laws........................................ 56
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ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities......................... 57
SECTION 6.02. Notice of Defaults.......................................... 58
SECTION 6.03. Certain Rights of Trustee................................... 58
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities...... 60
SECTION 6.05. May Hold Securities, Act as Trustee Under Other
Indentures...................................... 60
SECTION 6.06. Money Held in Trust......................................... 60
SECTION 6.07. Compensation and Reimbursement.............................. 60
SECTION 6.08. Corporate Trustee Required; Eligibility..................... 62
SECTION 6.09. Resignation and Removal; Appointment of Successor........... 62
SECTION 6.10. Acceptance of Appointment by Successor...................... 63
SECTION 6.11. Merger, Conversion, Consolidation or Succession to
Business........................................ 64
SECTION 6.12. Authenticating Agents....................................... 64
SECTION 6.13. Disqualification; Conflicting Interest...................... 66
SECTION 6.14. Preferential Collection of the Claims Against the Issuers... 66
ARTICLE 7
CONSOLIDATION, MERGER, TRANSFER OR LEASE
SECTION 7.01. An Issuer May Consolidate, Etc., Only on Certain Terms...... 66
SECTION 7.02. Successor Substituted....................................... 67
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Holders of
Securities...................................... 68
SECTION 8.02. Supplemental Indentures with Consent of Holders of
Securities...................................... 69
SECTION 8.03. Execution of Supplemental Indentures........................ 70
SECTION 8.04. Effect of Supplemental Indentures........................... 70
SECTION 8.05. Reference in Securities to Supplemental Indentures.......... 70
SECTION 8.06. Notice of Supplemental Indentures........................... 71
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ARTICLE 9
MEETINGS OF HOLDERS OF SECURITIES
SECTION 9.01. Purposes for Which Meetings May Be Called.................. 71
SECTION 9.02. Call, Notice and Place of Meetings......................... 71
SECTION 9.03. Persons Entitled to Vote at Meetings....................... 72
SECTION 9.04. Quorum; Action............................................. 72
SECTION 9.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings................................... 73
SECTION 9.06. Counting Votes and Recording Action of Meetings............ 73
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal Amount at Maturity, Issue Price,
Accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price
and Interest................................... 74
SECTION 10.02. Maintenance of Offices or Agencies........................ 74
SECTION 10.03. Money for Security Payments to Be Held in Trust........... 75
SECTION 10.04. Corporate Existence....................................... 77
SECTION 10.05. Statement by Officers as to Default....................... 77
SECTION 10.06. Calculation of Original Issue Discount.................... 78
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. Right of Redemption....................................... 78
SECTION 11.02. Applicability of Article.................................. 78
SECTION 11.03. Selection to Redeem; Notice to Trustee.................... 78
SECTION 11.04. Selection by Trustee of Securities to Be Redeemed......... 78
SECTION 11.05. Notice of Redemption...................................... 79
SECTION 11.06. Deposit of Redemption Price............................... 80
SECTION 11.07. Securities Payable on Redemption Date..................... 80
SECTION 11.08. Securities Redeemed in Part............................... 81
SECTION 11.09. Conversion Arrangement on Call for Redemption............. 81
SECTION 11.10. No Sinking Fund........................................... 82
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ARTICLE 12
CONVERSION OF SECURITIES
SECTION 12.01. Conversion Privilege and Conversion Rate................... 82
SECTION 12.02. Exercise of Conversion Privilege........................... 83
SECTION 12.03. Fractions of Shares........................................ 85
SECTION 12.04. Adjustment of Conversion Rate.............................. 85
SECTION 12.05. Notice of Adjustments of Conversion Rate................... 95
SECTION 12.06. Notice of Certain Corporate Action......................... 95
SECTION 12.07. Company to Provide Common Stock............................ 97
SECTION 12.08. Taxes on Conversions....................................... 97
SECTION 12.09. Company Covenant as to Common Stock........................ 97
SECTION 12.10. Cancellation of Converted Securities....................... 97
SECTION 12.11. Effect of Reclassification, Consolidation, Merger or Sale.. 97
SECTION 12.12. Responsibility of Trustee for Conversion Provisions........ 99
ARTICLE 13
SUBORDINATION OF SECURITIES
SECTION 13.01. Agreement of Subordination................................. 99
SECTION 13.02. Payments to Holders........................................ 100
SECTION 13.03. Subrogation of Securities.................................. 103
SECTION 13.04. Authorization to Effect Subordination...................... 105
SECTION 13.05. Notice to Trustee.......................................... 105
SECTION 13.06. Trustee's Relation to Senior Indebtedness of the Issuers... 106
SECTION 13.07. No Impairment of Subordination............................. 106
SECTION 13.08. Article Applicable to Paying Agents........................ 107
SECTION 13.09. Senior Indebtedness Entitled to Rely....................... 107
SECTION 13.10. Certain Conversions Deemed Payment......................... 107
ARTICLE 14
REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDERS UPON A
FUNDAMENTAL CHANGE
SECTION 14.01. Right to Require Repurchase................................ 108
SECTION 14.02. Notices; Method of Exercising Repurchase Right, Etc........ 108
SECTION 14.03. Merger, Consolidation, Etc................................. 110
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ARTICLE 15
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 15.01. Company to Furnish Trustee Names and Addresses of
Holders.................................... 111
SECTION 15.02. Trustee to Furnish Company Names and Addresses of
Holders.................................... 112
SECTION 15.03. Preservation of Information........................... 112
SECTION 15.04. Reports by Trustee.................................... 112
SECTION 15.05. Reports by Company.................................... 113
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INDENTURE, dated as of __________, 1999, among VERITAS Software
Corporation, a Delaware corporation (herein called the "COMPANY"), VERITAS
Operating Corporation, a Delaware corporation (herein called the "CO-OBLIGOR",
and the Company and the Co-Obligor, each referred to herein as an "ISSUER" and
collectively referred to herein as the "ISSUERS") and State Street Bank and
Trust Company of California, N.A., as Trustee hereunder (herein called the
"TRUSTEE").
RECITALS
The Issuers have duly authorized the creation of an issue of their
_____% Convertible Subordinated Notes due 2006 (herein called the "SECURITIES")
in an aggregate principal amount not to exceed $___,000,000, and to provide
therefor the Issuers have duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Securities, when the Securities are
executed by the Issuers and authenticated and delivered hereunder, the valid
obligations of the Issuers, and to make this Indenture a valid agreement of the
Issuers, in accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE
W I T N E S S E T H:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, the Issuers and the Trustee mutually covenant
and agree, for the equal and proportionate benefit of all Holders of the
securities as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(b) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of
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such computation, other than for the purpose of the definition of
Indebtedness and Senior Indebtedness set forth herein; and
(c) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"ACT", when used with respect to any Holder of a Security, has the
meaning specified in Section 1.04.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"CONTROL", when used with respect to any specified Person, means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have
meanings correlative to the foregoing.
"AUTHENTICATING AGENT" means any Person authorized by the Trustee
pursuant to Section 6.12 to act on behalf of the Trustee to authenticate
Securities.
"BOARD OF DIRECTORS" or "BOARD" means, with respect to either Issuer,
either the board of directors of such Issuer or any committee of that board
empowered to act for it with respect to this Indenture.
"BOARD RESOLUTION" means, with respect to either Issuer, a resolution
duly adopted by the Board, a copy of which, certified by the Secretary or an
Assistant Secretary of such Issuer to have been duly adopted by the Board and to
be in full force and effect on the date of such certification, shall have been
delivered to the Trustee.
"BUSINESS DAY", means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
or the city in which the principal Corporate Trust Office is located are
authorized or obligated by law or executive order to close.
"CLOSING PRICE" has the meaning specified in Section 12.04(h)(i).
"CODE" means the United States Internal Revenue Code of 1986, as
amended.
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"COMMISSION" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"COMMON STOCK" includes any stock or shares of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company; provided,
however, subject to the provisions of Section 12.11, shares issuable on
conversion of Securities shall include only shares of the class designated as
Common Stock of the Company at the date of this Indenture or shares of any class
or classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which are not subject to redemption by the Company; provided,
further, however, that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"COMPANY" means the Person named as the "COMPANY" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"COMPANY" shall mean such successor Person.
"COMPANY NOTICE" has the meaning specified in Section 14.02.
"COMPANY SENIOR INDEBTEDNESS" means the principal of, premium, if any,
interest (including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in such proceeding) and rent payable on or in
connection with, and all fees, costs, expenses and other amounts accrued or due
on or in connection with, Indebtedness of the Company, whether outstanding on
the date of this Indenture or thereafter created, incurred, assumed, guaranteed
or in effect guaranteed by the Company (including all deferrals, renewals,
extensions or refundings of, or amendments, modifications or supplements to, the
foregoing), unless in the case of any particular Indebtedness the instrument
creating or evidencing the same or the assumption or guarantee thereof expressly
provides that such Indebtedness shall not be senior in right of payment to the
Securities or expressly provides that such Indebtedness is "PARI PASSU" or
"JUNIOR" to the
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Securities. Notwithstanding the foregoing, Company Senior Indebtedness shall
not include any Indebtedness of the Company to any Subsidiary of the Company.
"CO-OBLIGOR" means the Person named as the "CO-OBLIGOR" in the first
paragraph of the Indenture until a successor Person shall have become such
pursuant to the provisions of this Indenture, and thereafter "CO-OBLIGOR" shall
mean such successor Person.
"CO-OBLIGOR SENIOR INDEBTEDNESS" means the principal of, premium, if
any, interest (including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in such proceeding) and rent payable on or in
connection with, and all fees, costs, expenses and other amounts accrued or due
on or in connection with, Indebtedness of the Co-Obligor, whether outstanding on
the date of this Indenture or thereafter created, incurred, assumed, guaranteed
or in effect guaranteed by the Co-Obligor (including all deferrals, renewals,
extensions or refundings of, or amendments, modifications or supplements to, the
foregoing), unless in the case of any particular Indebtedness the instrument
creating or evidencing the same or the assumption or guarantee thereof expressly
provides that such Indebtedness shall not be senior in right of payment to the
Securities or expressly provides that such Indebtedness is "PARI PASSU" or
"JUNIOR" to the Securities. Notwithstanding the foregoing, Co-Obligor Senior
Indebtedness shall not include any Indebtedness of the Co-Obligor to any
Subsidiary of the Co-Obligor.
"CONVERSION AGENT" means any Person authorized by the Company to
convert Securities in accordance with Article 12. The Company has initially
appointed the Trustee as its Conversion Agent, which shall maintain an office or
agency in the Borough of Manhattan, The City of New York, New York.
"CONVERSION RATE" has the meaning specified in Section 12.01.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered (which at the date of this Indenture is located at 000 Xxxx 0xx
Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 90071), except that with respect to
presentation of Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee at which at
any particular time, its corporate agency business shall be conducted.
"CORPORATION" means a corporation, company, including, without
limitation, a limited liability company, association, joint-stock company or
business trust.
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"CUSTODIAN" shall mean State Street Bank and Trust Company of
California, N.A., as custodian with respect to a Global Security, or any
successor entity thereto.
"DEFAULTED INTEREST" has the meaning specified in Section 3.07.
"DEPOSITARY" means, with respect to any Securities issued in whole or
in part in the form of one or more Global Securities, the clearing agency that
is registered under the Exchange Act and designated to act as Depositary for
such Securities, as contemplated by Section 3.04, or any successor clearing
agency registered under the Exchange Act as contemplated by Section 3.04.
"DESIGNATED SENIOR INDEBTEDNESS" means any particular Senior
Indebtedness in which the instrument creating or evidencing the same or the
assumption or guarantee thereof (or related agreements or documents to which
either the Company or the Co-Obligor is a party, as the case may be) expressly
provides that such Senior Indebtedness shall be "Designated Senior Indebtedness"
for purposes of the Indenture (provided that such instrument, agreement or other
document may place limitations and conditions on the right of such Senior
Indebtedness to exercise the rights of the Designated Senior Indebtedness).
"DOLLAR" or "U.S.$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"DTC" means The Depository Trust Company, a New York corporation.
"EVENT OF DEFAULT" has the meaning specified in Section 5.01.
"EXCHANGE ACT" means the United States Securities Exchange Act of 1934,
as amended from time to time.
"FUNDAMENTAL CHANGE" means the occurrence of any transaction or event
in connection with which all or substantially all of the Common Stock shall be
exchanged for, converted into, acquired for or constitute solely the right to
receive, consideration (whether by means of an exchange offer, liquidation,
tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise) which is not all or substantially all common
stock or shares which are (or, upon consummation of or immediately following
such transaction or event, will be) listed on a United States national
securities exchange or approved for quotation on the Nasdaq National Market or
any similar United States system of automated dissemination of quotations of
securities prices.
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"FUNDAMENTAL CHANGE REDEMPTION DATE" has the meaning specified in
Section 14.01.
"FUNDAMENTAL CHANGE REDEMPTION PRICE" has the meaning specified in
the form of Security.
"GLOBAL SECURITY" means any Security issued in the form set forth in
Section 2.02 and registered in the Note Register in the name of a Depositary or
a nominee thereof.
"HOLDER", when used with respect to any Security, means the Person in
whose name the Security is registered in the Note Register.
"INDEBTEDNESS" means, with respect to any Person, and without
duplication, (a) all indebtedness, obligations and other liabilities (contingent
or otherwise) of the Person for borrowed money (including obligations of the
Person in respect of overdrafts, foreign exchange contracts, currency exchange
agreements, interest rate protection agreements, and any loans or advances from
banks, whether or not evidenced by notes or similar instruments) or evidenced by
bonds, debentures, notes or similar instruments (whether or not the recourse of
the lender is to the whole of the assets of the Person or to only a portion
thereof) or obligations in respect of deferred and unpaid purchase price of
assets or property, (b) all reimbursement obligations and other liabilities
(contingent or otherwise) of the Person with respect to letters of credit, bank
guarantees or bankers' acceptances, (c) all obligations and liabilities
(contingent or otherwise) in respect of leases of the Person required, in
conformity with generally accepted accounting principles, to be accounted for as
capitalized lease obligations on the balance sheet of the Person or under other
leases for facilities, equipment or related assets, whether or not capitalized,
entered into or leased for financing purposes (as determined by the Company or
the Co-Obligor, as the case may be,) and all obligations and other liabilities
(contingent or otherwise) under any lease or related document (including a
purchase agreement) in connection with the lease of real property or
improvements thereon which provides that the Person is contractually obligated
to purchase or cause a third party to purchase the leased property and thereby
guarantee a minimum residual value of the leased property to the lessor and the
obligations of the Person under such lease or related document to purchase or to
cause a third party to purchase such leased property, (d) all obligations of the
Person (contingent or otherwise) with respect to an interest rate or other swap,
cap or collar agreement or other similar instrument or agreement or foreign
currency hedge, exchange, purchase or similar instrument or agreement, (e) all
direct or indirect guaranties or similar agreements by the Person in respect of,
and obligations or liabilities (contingent or otherwise) of the Person to
purchase or otherwise acquire or otherwise assure a creditor against loss in
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respect of, indebtedness, obligations or liabilities of another Person of the
kind described in clauses (a) through (d), (f) any indebtedness or other
obligations described in clauses (a) through (d) secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held by
the Person, regardless of whether the indebtedness or other obligation secured
thereby shall have been assumed by the Person and (g) any and all deferrals,
renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or liability of
the kind described in clauses (a) through (f). Notwithstanding anything to the
contrary in the foregoing, Indebtedness shall not include any indebtedness of or
amounts owed by any Person for compensation to employees, or for goods, services
or materials purchased in the ordinary course of business.
"INDENTURE" means this Indenture as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this Indenture and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Indenture and any such supplemental indenture,
respectively.
"INTEREST PAYMENT DATE" means the Stated Maturity of an installment of
interest on the Securities.
"ISSUE PRICE" means, in connection with the original issuance of a
Security (including any Predecessor Security), the initial issue price at which
such Security is sold as set forth on the face of such Security.
"ISSUER ORDER" or "ISSUER REQUEST" means a written request or order
signed in the name of an Issuer by its Chairman of the Board, its Vice Chairman
of the Board, its Chief Executive Officer, its President or a Senior Vice
President or a Vice President, and by its principal financial officer,
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"MATURITY", when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase right set forth in
Article 14 or otherwise.
"NASDAQ NATIONAL MARKET" means the electronic inter-dealer quotation
system operated by NASDAQ, Inc., a subsidiary of the National Association of
Securities Dealers, Inc.
"NON-ELECTING SHARE" has the meaning specified in Section 12.11.
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"NOTE REGISTER" has the meaning specified in Section 3.04.
"NOTE REGISTRAR" has the meaning specified in Section 2.02. The Company
has initially appointed the Trustee as its Note Registrar for the purpose of
registering Securities and transfers and exchange of Securities as provided for
herein. The Trustee shall maintain an office or agency for such purposes in the
City of New York.
"OFFICER" means, with respect to either Issuer, the Chairman of the
Board, a Vice Chairman of the Board, the Chief Executive Officer, the President
or a Senior Vice President or a Vice President, the principal financial officer,
the Treasurer, or Assistant Treasurer, the Secretary or an Assistant Secretary.
"OFFICERS' CERTIFICATE" means a certificate signed both (a) by the
Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President or a Senior Vice President or a Vice President and (b) by
the principal financial officer, Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Issuers and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of independent counsel of
recognized standing who may be counsel for the Issuers and who shall be
reasonably acceptable to the Trustee.
"ORIGINAL ISSUE DISCOUNT" of any Security means the difference between
the Issue Price and the principal amount at maturity of the Security as set
forth on the face of the Security. For purposes of this Indenture and the
Securities, accrual of Original Issue Discount shall be calculated on the basis
of a 360-day year of twelve 30-day months, compounded semi-annually.
"OUTSTANDING", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for the payment or redemption of which money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or the Co-Obligor) or set aside
and segregated in trust by the Company or the Co-Obligor (if the
Company shall act as its own Paying Agent) for the Holders of such
Securities, provided that if such Securities are to be redeemed, notice
of
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such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Issuers; and
(iv) Securities converted into Common Stock pursuant to Article 12;
provided, however, that in determining 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 given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities (including the
Co-Obligor) or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such determination as to the presence of a quorum or upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities (including the Co-Obligor) or any Affiliate of the Company or such
other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price, or interest, if any, on
any Securities on behalf of the Issuers and, except as otherwise specifically
set forth herein, such term shall include the Company if it shall act as its own
Paying Agent. The Company has initially appointed the Trustee as its Paying
Agent, which shall maintain an office or agency in The City of New York, New
York.
"PAYMENT BLOCKAGE NOTICE" has the meaning specified in Section 13.02.
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"PERSON" means any individual, corporation, partnership, joint venture,
association, trust, estate, unincorporated organization or government or any
agency or political subdivision thereof, and includes any successor of such
entity.
"PLACE OF CONVERSION" has the meaning specified in Section 3.01.
"PLACE OF PAYMENT" has the meaning specified in Section 3.01.
"PREDECESSOR SECURITY" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"PURCHASED SHARES" has the meaning specified in Section 12.04(f).
"RECORD DATE" means any Regular Record Date or Special Record Date.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed in whole or in part, means the date fixed for such redemption as set
forth in the form of Security.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the applicable price including any applicable additional
Original Issue Discount referred to therein.
"REGULAR RECORD DATE" for interest payable in respect of any Security
on any Interest Payment Date means the _________ or _________ (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"REPRESENTATIVE" means the (a) indenture trustee or other trustee,
agent or representative for any Senior Indebtedness or (b) with respect to any
Senior Indebtedness that does not have any such trustee, agent or other
representative, (i) in the case of such Senior Indebtedness issued pursuant to
an agreement providing for voting arrangements as among the holders or owners of
such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting
with the consent of the required persons necessary to bind such holders or
owners of such Senior Indebtedness and (ii) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.
"RESPONSIBLE OFFICER", when used with respect to the Trustee, means any
officer in the Corporate Trust Office of the Trustee and also means, with
respect
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to a particular corporate trust matter, any other officer of the Trustee to whom
such matter is referred because of his knowledge and familiarity with the
particular subject.
"RIGHTS" means the preferred share purchase rights, if any, as provided
by and subject to the terms of the Rights Agreement.
"RIGHTS AGREEMENT" means the rights agreement dated as of June 16,
1999, between the Company and ChaseMellon Shareholder Services, L.L.C., as
Rights Agent, as in effect on the date hereof.
"SECURITIES" has the meaning ascribed to it in the first paragraph
under the caption "Recitals".
"SECURITIES ACT" means the United States Securities Act of 1933, as
amended from time to time.
"SENIOR INDEBTEDNESS" means, collectively, the Company Senior
Indebtedness and the Co-Obligor Senior Indebtedness.
"SIGNIFICANT SUBSIDIARY" means, as of any date of determination, a
Subsidiary of an Issuer, if as of such date of determination either (a) the
assets of such subsidiary equal 10% or more of such Issuer's total consolidated
assets as of the date of such Issuer's latest audited balance sheet or (b) the
total revenue of which represented 10% or more of such Issuer's consolidated
total revenue for the most recently completed fiscal year.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.07.
"STATED MATURITY", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"SUBSIDIARY" means, with respect to any Person, a corporation more than
50% of the outstanding voting stock of which is owned, directly or indirectly,
by such Person or by one or more other Subsidiaries, or by such Person and one
or more other Subsidiaries. For the purposes of this definition, "VOTING STOCK"
means stock or other similar interests in the corporation which ordinarily has
or have voting power for the election of directors, or persons performing
similar functions, whether at all times or only so long as no senior class of
stock or other interests has or have such voting power by reason of any
contingency.
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"SUCCESSOR SECURITY" of any particular Security means every Security
issued after, and evidencing all or a portion of the same debt as that evidenced
by, such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.06 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"TRADING DAY" has the meaning specified in Section 12.04(h)(v).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in force
at the date as of which this Indenture was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "TRUST
INDENTURE ACT" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person named as the "TRUSTEE" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"TRUSTEE" shall mean such successor Trustee.
"1997 SECURITIES" means the 5.25% convertible subordinated notes due
2004 issued by the Co-Obligor pursuant to an indenture dated October 1, 1997
between the Co-Obligor and the Trustee, as amended and supplemented by the first
supplemental indenture dated as of May 28, 1999, as further amended and
supplemented by the amended and restated first supplemental indenture dated as
of July 30, 1999.
The definitions of certain other terms are specified in Article 12 and
elsewhere in this Indenture.
SECTION 1.02. Compliance Certificates and Opinions. Upon any
application or request by either Issuer to the Trustee or any Paying Agent to
take any action under any provision of this Indenture, such Issuer shall furnish
to the Trustee or the Paying Agent, as the case may be, an Officers' Certificate
stating that all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and if required
hereunder, an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or request, no additional certificate or opinion
need be furnished.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (excluding certificates
provided for in Section 10.05) shall include:
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(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 or she has
made such examination or investigation as is necessary to enable him or
her, as the case may be, 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, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to the Trustee. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents.
Any certificate or opinion of an Officer may be based, insofar as it
relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such Officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
the matters upon which such certificate or opinion is based are erroneous. Any
such certificate or opinion of counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
Officer or Officers stating that the information with respect to such factual
matters is in the possession of the Company or the Co-Obligor unless such
counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
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instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.04. Acts of Holders of Securities. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given or taken by Holders of Securities may be
embodied in and evidenced by (i) one or more instruments of substantially
similar tenor signed by such Holders in person or by agents or proxies duly
appointed in writing by such Holders, (ii) the record of Holders of Securities
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities duly called and held in
accordance with the provisions of Article 9 or (iii) a combination of such
instruments and any such record. Such action shall become effective when such
instrument or instruments or record or both are delivered to the Trustee and,
where it is hereby expressly required, to the Issuers. The Trustee shall
promptly deliver to the Issuers copies of all such instruments and records
delivered to the Trustee with a courtesy copy to Issuers' counsel at the address
listed in Section 1.05 and if pertaining to any conversion notice, with a
courtesy copy to Company's common stock transfer agent at the address listed in
Section 1.05. Such instrument or instruments and record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "ACT" of
the Holders of Securities signing such instrument or instruments and so voting
at such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 6.01) conclusive in favor of the Trustee and the Issuers if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 9.06.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The principal amount and serial number of any Security held by any
Person, and the date of his holding the same, shall be proved by the Note
Register.
(d) The fact and date of execution of any such instrument or writing
and the authority of the Person executing the same may also be proved in any
other manner which the Trustee or the Paying Agent deems sufficient; and the
Trustee
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or any Paying Agent may in any instance require further proof with respect to
any of the matters referred to in this Section 1.04.
(e) The Company may set any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted by this Indenture to be given or taken by
Holders. Promptly and in any case not later than ten days after setting a record
date, the Company shall notify the Trustee, each Paying Agent and the Holders of
such record date. If not set by the Company prior to the first solicitation of a
Holder made by any Person in respect of any such action, or, in the case of any
such vote, prior to such vote, the record date for any such action or vote shall
be the 30th day (or, if later, the date of the most recent list of Holders
required to be provided pursuant to Section 15.01) prior to such first
solicitation or vote, as the case may be. With regard to any record date, the
Holders on such date (or their duly appointed agents or proxies), and only such
Persons, shall be entitled to give or take, or vote on, the relevant action,
whether or not such Holders remain Holders after such record date.
Notwithstanding the foregoing, the Company shall not set a record date for, and
the provisions of this paragraph shall not apply with respect to, any notice,
declaration or direction referred to in the next paragraph.
Upon receipt by the Trustee from any Holder of (i) any notice of
default or breach referred to in Section 5.01(c), if such default or breach has
occurred and is continuing and the Trustee shall not have given such a notice to
the Issuers, (ii) any declaration of acceleration referred to in Section 5.02,
if an Event of Default has occurred and is continuing and the Trustee shall not
have given such a declaration to the Issuers, or (iii) any direction referred to
in Section 5.12, if the Trustee shall not have taken the action specified in
such direction, then a record date shall automatically and without any action by
the Issuers or the Trustee be set for determining the Holders entitled to join
in such notice, declaration or direction, which record date shall be the close
of business on the tenth day (or, if such day is not a Business Day, the first
Business Day thereafter) following the day on which the Trustee receives such
notice, declaration or direction. Promptly after such receipt by the Trustee,
and as soon as practicable thereafter, the Trustee shall notify the Issuers and
the Holders of any such record date so fixed. The Holders on such record date
(or their duly appointed agents or proxies), and only such Persons, shall be
entitled to join in such notice, declaration or direction, whether or not such
Holders remain Holders after such record date; provided that, unless such
notice, declaration or direction shall have become effective by virtue of
Holders of the requisite principal amount of Securities on such record date (or
their duly appointed agents or proxies) having joined therein on or prior to the
90th day after such record date, such notice, declaration or direction shall
automatically and without any action by any Person be canceled and of no further
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effect. Nothing in this paragraph shall be construed to prevent a Holder (or a
duly appointed agent or proxy thereof) from giving, before or after the
expiration of such 90-day period, a notice, declaration or direction contrary to
or different from, or, after the expiration of such period, identical to, the
notice, declaration or direction to which such record date relates, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph. In addition, nothing in this paragraph shall be construed to render
ineffective any notice, declaration or direction of the type referred to in this
paragraph given at any time to the Trustee and the Issuers by Holders (or their
duly appointed agents or proxies) of the requisite principal amount of
Securities on the date such notice, declaration or direction is so given.
(f) Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Successor Security
issued upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Issuers in reliance thereon, whether or not notation of such
action is made upon such Security.
(g) The provisions of this Section 1.04 are subject to the provisions
of Section 9.05.
SECTION 1.05. Notices, Etc., to Trustee and the Issuers. Any request,
demand, authorization, direction, notice, consent, election, waiver or Act of
Holders of Securities or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(a) the Trustee in Los Angeles, California or the office or agency of
the Trustee in New York, New York by any Holder of Securities or by
either Issuer shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee and
received at its Corporate Trust Office, 000 Xxxx 0xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Corporate Trust
Department - VERITAS Software Corporation ___% Convertible Subordinated
Notes due 2006 (facsimile number (000) 000-0000), or to or with the
office or agency of the Trustee at State Street Bank and Trust Company,
N.A., 00 Xxxxxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxxx Trust Window, New York,
New York 10006, Attention: VERITAS Software Corporation ___%
Convertible Subordinated Notes due 2006. In addition, a courtesy copy
shall be sent to Trustee's counsel (which shall not constitute notice
to the Trustee): Xxxxxxx & Xxxxxxx LLP, One American Row, Hartford,
Connecticut
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06103-2819, Attention: Xxxxxx Xxxxxx Xxxxx, Xx., Esq. (facsimile number
(000) 000-0000) or
(b) any Issuer by the Trustee or any Paying Agent or by any Holder of
Securities shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing, mailed, first-class
postage prepaid, or telecopied and confirmed by mail, first-class
postage prepaid, or delivered by hand or overnight courier, addressed
to such Issuer at VERITAS Software Corporation, 0000 Xxxxxxxx Xxxxxx,
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 (facsimile number: (000) 000-0000),
Attention: Chief Financial Officer, or at any other address previously
furnished in writing to the Trustee by such Issuer. In addition, a
courtesy copy shall be sent to Issuers' counsel (which shall not
constitute notice to an Issuer): Fenwick & West LLP, Two Xxxx Xxxx
Xxxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 (facsimile number (000) 000-0000),
Attention: Xxxxxx X. Xxxx, Esq. and if relating to a conversion notice
as described in Section 2.02, with a copy to Company's common stock
transfer agent, ChaseMellon Shareholder Services L.L.C., Securities
Transfer Services, X.X. Xxx 0000, Xxxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
(telephone number (000) 000-0000).
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
SECTION 1.06. Notice to Holders of Securities; Waiver. Except as
otherwise expressly provided herein, where this Indenture provides for notice to
Holders of Securities of any event, such notice shall be sufficiently given to
Holders of Securities if in writing and mailed, first-class postage prepaid, to
each Holder of a Security affected by such event, at the address of such Holder
as it appears in the Note Register, not earlier than the earliest date and not
later than the latest date prescribed for the giving of such notice. Such notice
shall be conclusively deemed to have been given and received by Holders when
such notice is mailed, whether or not such Holder receives such notice.
In any case where notice to Holders of Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities given as provided above. In
case by reason of the suspension of or irregularities in regular mail service or
by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification to Holders of Securities as shall be made with the
approval of the
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Trustee, which approval shall not be unreasonably withheld, shall constitute a
sufficient notification to such Holders for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
SECTION 1.07. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
SECTION 1.08. Successors and Assigns. All covenants, stipulations,
promises and agreements in this Indenture by an Issuer shall bind its successors
and assigns, whether so expressed or not.
SECTION 1.09. Separability Clause. In case any provision in this
Indenture or the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.10. Benefits of Indenture. Except as provided in the next
sentence, nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns hereunder and the Holders of Securities, any benefit or legal or
equitable right, remedy or claim under this Indenture. The provisions of Article
13 are intended to be for the benefit of, and shall be enforceable directly by,
the holders of Senior Indebtedness.
SECTION 1.11. Governing Law. THIS INDENTURE AND EACH SECURITY SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
THE UNITED STATES OF AMERICA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS.
SECTION 1.12. Legal Holidays. In any case where any due date for the
payment of principal, Issue Price, accrued Original Issue Discount, Redemption
Date, Fundamental Change Redemption Date or Stated Maturity of any Security or
the last day on which a Holder of a Security has a right to convert his Security
shall not be a Business Day at any Place of Payment or Place of Conversion, as
the case may be, then (notwithstanding any other provision of this Indenture or
of
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the Securities) payment of interest or principal, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price, or
delivery for conversion of such Security need not be made at such Place of
Payment or Place of Conversion, as the case may be, on or by such day, but may
be made on or by the next succeeding Business Day at such Place of Payment or
Place of Conversion, as the case may be, with the same force and effect as if
made on the Interest Payment Date, Redemption Date, Fundamental Change
Redemption Date, or at the Stated Maturity or by such last day for conversion;
provided, however, that in the case that payment is made on such succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Fundamental Change
Redemption Date, Stated Maturity or last day for conversion, as the case may be.
SECTION 1.13. Conflict with Trust Indenture Act. If any provision
hereof limits, qualifies or conflicts with a provision of the Trust Indenture
Act that is required under the Trust Indenture Act to be a part of and to govern
this Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be. Until such
time as this Indenture shall be qualified under the Trust Indenture Act, this
Indenture, the Issuers and the Trustee shall be deemed for all purposes hereof
to be subject to and governed by the Trust Indenture Act to the same extent as
would be the case if this Indenture were so qualified on the date hereof.
SECTION 1.14. Indenture and Securities Solely Corporate Obligations. No
recourse for the payment of the principal, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price, or interest in
respect of, any Security and no recourse under or upon any obligation, covenant
or agreement of the Issuers in this Indenture or in any supplemental indenture
or in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent,
officer, or director or subsidiary, as such, past, present or future, of the
Issuers or of any successor corporations, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is hereby
waived and released as a condition of, and as a consideration for, the execution
of this Indenture and the issue of the Securities.
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ARTICLE 2
SECURITY FORMS
SECTION 2.01. Forms Generally. The Securities shall be in substantially
the forms set forth in this Article, with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture, and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the Securities Act and the Exchange Act, applicable
state securities law or the rules of any securities exchange, the Code, and the
treasury regulations under the Code, or as may, consistently herewith, be
determined by the Officers executing such Securities, as evidenced by their
execution thereof.
The Election of Holder to Require Repurchase shall be substantially in
the form set forth in Section 2.03. The Conversion Notice shall be in
substantially the form set forth in Section 2.04. The Trustee's certificate of
authentication shall be in substantially the form set forth in Section 2.05.
The Securities may be printed, lithographed, typewritten, mimeographed
or otherwise produced, as determined by the Officers executing such Security, as
evidenced by their execution thereof.
SECTION 2.02. Form of Security. [FORM OF LEGEND FOR GLOBAL SECURITY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (THE
"DEPOSITARY," WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES)
TO THE ISSUERS OR THEIR 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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DEPOSITARY AND ANY
PAYMENT HEREON IS MADE TO CEDE & CO. (OR TO SUCH OTHER ENTITY AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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[FORM OF FACE OF NOTE]
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, THIS SECURITY BEARS
ORIGINAL ISSUE DISCOUNT. THE ISSUE PRICE WITH RESPECT TO EACH $1,000 OF
AGGREGATE PRINCIPAL AMOUNT AT MATURITY OF THIS SECURITY IS $________, THE AMOUNT
OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF AGGREGATE PRINCIPAL
AMOUNT AT MATURITY OF THIS SECURITY IS $________, THE ISSUE DATE IS ________,
1999 AND THE YIELD TO MATURITY BASED ON SEMI-ANNUAL COMPOUNDING IS __%.
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VERITAS SOFTWARE CORPORATION
VERITAS OPERATING CORPORATION
____% CONVERTIBLE SUBORDINATED NOTES DUE 2006
No. _____________ U.S.$_____
CUSIP NO. __________
Each of VERITAS Software Corporation, a Delaware corporation (herein
called the "COMPANY," which term includes any successor Person under the
Indenture referred to on the reverse hereof) and VERITAS Operating Corporation,
a Delaware corporation (herein called the "CO-OBLIGOR" and the Company and the
Co-Obligor, each referred to herein as an "ISSUER" and collectively referred to
herein as the "ISSUERS"), for value received, hereby promise jointly and
severally, to pay to_______________, or registered assigns (the "HOLDER"), the
principal sum of_____________ United States Dollars (U.S.$_____) (which amount
may from time to time be increased or decreased to such other principal amounts
(which, taken together with the principal amounts of all other Outstanding
Securities, shall not exceed $_________ in the aggregate at any time) by
adjustments made on the records of the Trustee, as Custodian of the Depositary,
in accordance with the rules and procedures of the Depositary) on _________,
2006 at the office or agency of the Company maintained for that purpose in New
York, New York, in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public and private
debts, and to pay interest, semi-annually in arrears on _________ and _________
in each year (each, an "INTEREST PAYMENT DATE"), commencing _________, 1999 on
said principal sum at said office or agency, in like coin or currency, at the
rate of ___% per annum from __________ or __________, as the case may be, next
preceding the date of this Note to which interest has been paid or duly provided
for, unless the date hereof is a date to which interest has been paid or duly
provided for, in which case from the date of this Note, or unless no interest
has been paid or duly provided for on the Notes, in which case from __________,
1999 until payment of said principal sum has been made or duly provided for.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the _________ or _________ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Except as
otherwise provided in the Indenture, any such interest not so punctually paid or
duly provided for
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("DEFAULTED INTEREST") on an Interest Payment Date will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by an Issuer, notice whereof shall be given
to Holders of Securities not less than 10 days prior to such Special Record
Date, or be paid at any time 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, all as more
fully provided in the Indenture. Payment of interest on this Security may be
made, at the option of an Issuer, by United States Dollar check mailed to the
address of the Person entitled thereto as such address shall appear in the Note
Register, or, upon written application by the Holder to the Note Registrar
setting forth wire instructions not later than the relevant Record Date, by
transfer to a United States Dollar account (such a transfer to be made only to a
Holder of an aggregate principal amount of Securities in excess of
U.S.$2,000,000 and only if such Holder shall have furnished wire instructions in
writing to the Trustee no later than 15 days prior to the relevant payment date)
maintained by the Holder with a bank in the United States.
Reference is made to the further provisions of this Security set forth
on the reverse hereof, including, without limitation, provisions subordinating
the payment of principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and interest, if
any, in respect of the Securities to the prior payment in full of all Senior
Indebtedness as defined in the Indenture and provisions giving the holder of
this Security the right to convert this Security into Common Stock on the terms
and subject to the limitations referred to on the reverse hereof and as more
fully specified in the Indenture. Such further provisions shall for all purposes
have the same effect as though fully set forth at this place. Capitalized terms
used herein, including on the reverse hereof, and not defined herein or on the
reverse hereof shall have the respective meanings given to such terms in the
Indenture.
This Security shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of said State.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof or an Authenticating Agent by the
manual signature of one of their respective authorized signatories, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Issuers have caused this Security to be signed
manually or by facsimile by its duly authorized officers under its corporate
seal.
Dated:
VERITAS SOFTWARE CORPORATION
[seal] By:
--------------------------------
Name:
Title:
Attest
By:
VERITAS OPERATING CORPORATION
By:
--------------------------------
Name:
Title:
[seal]
Attest
By:
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[FORM OF REVERSE OF SECURITY]
This Security is one of a duly authorized issue of securities of the
Issuers designated as their "___% Convertible Subordinated Notes due 2006"
(herein called the "SECURITIES"), limited in aggregate principal amount to U.S.
$_________, issued and to be issued under and pursuant to an Indenture, dated as
of _________, 1999 (herein called the "INDENTURE"), among the Issuers and State
Street Bank and Trust Company of California, N.A., as Trustee (herein called the
"TRUSTEE", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Issuers, the Trustee, the holders of Senior
Indebtedness and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The Securities are
issuable in the denomination of U.S.$1,000 and integral multiples thereof. As
provided in the Indenture and subject to the limitations therein set forth, the
Securities are exchangeable at the Corporate Trust Office of the Trustee, or the
office or agency of the Trustee, or at such other office or agency of the
Company as may be designated by it for such purpose, in The City of New York
(each a "NOTE REGISTRAR").
No sinking fund is provided for the Securities. The Securities will not
be redeemable at the option of the Company prior to _________, 2002. At any time
on or after _________, 2002, and prior to maturity, the Securities are subject
to redemption at the option of the Company at any time, upon not less than 20
nor more than 60 days' notice to the Holders prior to the Redemption Date, in
whole or in part, at the following optional Redemption Prices per $1,000
principal amount at maturity (which prices reflect accrued Original Issue
Discount calculated to each such date), together in each case with accrued
interest, to but excluding, the Redemption Date. The Redemption Price of a
Security redeemed between such dates would include an additional amount
reflecting the additional Original Issue Discount accrued since the next
preceding date in the table to the actual Redemption Date; provided, however,
that interest installments on Securities whose Stated Maturity is on or prior to
such Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
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(1) (2) (3)
Accrued Redemption
Note Original Issue Price
Redemption Date Issue Price Discount (1)+(2)
--------------- ------------- -------------- ----------
2002 $ $ $
2003 $ $ $
2004 $ $ $
2005 $ $ $
2006 $ $ $
In the event of a redemption of less than all of the Securities, the Company
will not be required (a) to register the transfer or exchange of Securities for
a period of 15 days immediately preceding the date notice is given identifying
the serial numbers of the Securities called for such redemption or (b) to
register the transfer or exchange of any Security, or portion thereof, called
for redemption.
In any case where the due date for the payment of the principal amount
at maturity or Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price, or interest, if any, in respect of, any
Security or the last day on which a Holder of a Security has a right to convert
his Security shall not be a Business Day, at any Place of Payment or Place of
Conversion, as the case may be, then payment of principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
Change Redemption Price, or interest, if any, in respect of such Security or
delivery for conversion of such Security need not be made on or by such date at
such place but may be made on or by the next succeeding Business Day at such
Place of Payment or Place of Conversion, as the case may be, with the same force
and effect as if made on the date for such payment or the date fixed for
redemption or repurchase, or by such last day for conversion, and no interest
shall accrue on the amount so payable for the period after such date.
Subject to the provisions of the Indenture, the Holder hereof has the
right, at his option, at any time through the close of business on ____________,
or, as to all or any portion hereof called for redemption, prior to the close of
business on the Business Day immediately preceding the date fixed for redemption
(unless the Issuers shall default in payment due upon redemption thereof), to
convert the principal hereof or any portion of such principal which is $1,000
principal amount at maturity or a multiple thereof, into that number of fully
paid and nonassessable shares of Common Stock, as said shares shall be
constituted at the date of
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conversion, obtained by dividing the principal amount at maturity of this Note
or portion thereof to be converted by $1,000 and multiplying the result so
obtained by ______ (the "CONVERSATION RATE") or such Conversion Rate as adjusted
from time to time as provided in the Indenture, upon surrender of this Security,
together with a conversion notice as provided in the Indenture, to the Company
at the office or agency of the Company maintained for that purpose in New York,
New York or Los Angeles, California, and, unless the shares issuable on
conversion are to be issued in the same name as this Security, duly endorsed by,
or accompanied by instruments of transfer in form satisfactory to the Company
duly executed by the holder or by his duly authorized attorney. No adjustments
in respect of accrued Original Issue Discount, interest or dividends will be
made upon any conversion; provided, however, that if this Security shall be
surrendered for conversion during the period from, but excluding, a record date
for any interest payment date to, but excluding such Interest Payment Date, this
Security (unless it or the portion being converted shall have been called for
redemption on a Redemption Date which occurs during such period, or is to be
redeemed in connection with a Fundamental Change on a Fundamental Change
Redemption Date which occurs during such period) must be accompanied by an
amount, in New York Clearing House funds, equal to the interest payable on such
interest payment date on the principal amount at maturity being converted;
provided further, however that no such payment need be made if there shall exist
at the time of conversion a default in the payment of interest on the
Securities. No fractional shares will be issued upon any conversion, but an
adjustment in cash will be made, as provided in the Indenture, in respect of any
fraction of a share which would otherwise be issuable upon the surrender of any
Security or Securities for conversion.
If a Fundamental Change (as defined in the Indenture) occurs at any
time on or prior to ___________, 2006, each Holder shall have the right, at such
Holder's option, to require the Issuers to repurchase all of such Holder's
Securities (or any portion of such Securities that is $1,000 or an integral
multiple of $1,000 in excess thereof) at a price (the "FUNDAMENTAL CHANGE
REDEMPTION PRICE") equal to the Issue Price plus accrued Original Issue Discount
to the Fundamental Change Redemption Date (as defined below), on the date (the
"FUNDAMENTAL CHANGE REDEMPTION DATE") (or if such date is not a Business Day,
the next succeeding Business Day) that is 45 days after notice thereof. In each
case, the Issuers shall also pay accrued interest, if any, on such Securities
to, but excluding, the Fundamental Change Redemption Date; provided that if such
Fundamental Change Redemption Date is on an Interest Payment Date, then the
interest payable on such date shall be paid to the Holder of record of the
Securities on the Regular Record Date next preceding such Fundamental Change
Redemption Date. The Issuers shall mail to all holders of record of the
Securities a notice of the occurrence of a Fundamental Change and of the
redemption right arising as a result thereof on or before the 30th day after the
occurrence of such Fundamental Change. For a Security to be so repaid at the
option of the Holder, the Trustee or any Paying Agent must receive such Security
with the form entitled
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"Option to Elect Redemption Upon a Fundamental Change" on the reverse thereof
duly completed, together with such Securities duly endorsed for transfer, on or
before the 30th day after the date of such notice (or if such 30th day is not a
Business Day, the immediately preceding Business Day). All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Security
for redemption shall be determined by the Issuers, whose determination shall be
final and binding.
[The following paragraph shall appear in each Security that is not a
Global Security:
In the event of redemption, repurchase or conversion of this Security
in part only, a new Security or Securities for the unredeemed, unrepurchased or
unconverted portion hereof will be issued in the name of the Holder hereof.]
In the event of a deposit or withdrawal of an interest in this
Security, including an exchange, transfer, redemption, repurchase or conversion
of this Security in part only, the Trustee, as Custodian of the Depositary,
shall make an adjustment on its records to reflect such deposit or withdrawal in
accordance with the rules and procedures of the Depositary.
The indebtedness evidenced by this Security and the obligations of the
Issuers under the Indenture are to the extent and in the manner provided in the
Indenture, expressly subordinate and subject in right of payment to the prior
payment in full of all Senior Indebtedness (as defined in the Indenture),
whether outstanding on the date of the Indenture or thereafter incurred, and
this Security is issued subject to such provisions of the Indenture with respect
thereto. Each Holder of this Security, by accepting the same, (a) agrees to and
shall be bound by such provisions, (b) authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes.
If an Event of Default (as defined in the Indenture) shall occur and be
continuing, the sum of the Issue Price plus accrued Original Issue Discount and
accrued interest to the date of declaration, may be declared due and payable,
with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Issuers and the rights of the Holders of the Securities under the Indenture at
any time (a) by the Issuers and the Trustee with the written consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time
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Outstanding (as defined in the Indenture), or (b) by the adoption of a
resolution, at a meeting of Holders of the Outstanding Securities at which a
quorum is present, by the Holders of at least a majority in aggregate principal
amount of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities at the time Outstanding, on behalf of the
Holders of all the Securities, to waive compliance by the Issuers with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Successor Security to this Security, whether or not
notation of such consent or waiver is made upon this Security or such other
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless (a) such Holder shall have previously
given the Trustee written notice of a continuing Event of Default, (b) the
Holders of not less than 25% in aggregate principal amount of the Securities
Outstanding shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default as Trustee and offered the
Trustee reasonable indemnity and the Trustee shall not have received from the
Holders of a majority in aggregate principal amount of the Securities
Outstanding a direction inconsistent with such request, and (c) shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price, or interest in respect hereof on or
after the respective due dates expressed herein or for the enforcement of the
right to convert this Security as provided in the Indenture.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligations of the Issuers, which
are absolute and unconditional, to pay the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and interest, if any, in respect of this Security at the times,
places and rate, and in the coin or currency, herein prescribed or to convert
this Security as provided in the Indenture.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months. Accrual of Original Issue Discount shall be
calculated on the basis of a 360-day year of twelve 30-day months, compounded
semi-annually.
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The Securities are issuable in registered form without coupons in
denominations of $1,000 principal amount at maturity and any multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of Securities is registrable on the Note Register (as
defined in the Indenture) upon surrender of a Security for registration of
transfer (a) at the Corporate Trust Office of the Trustee or at the office or
agency of the Trustee in the Borough of Manhattan or at such other office or
agency of the Company as may be designated by it for such purpose in the Borough
of Manhattan, The City of New York, or (b) subject to any laws or regulations
applicable thereto and to the right of the Company to terminate the appointment
of any Note Registrar, at the offices of the Note Registrars described herein or
at such other offices or agencies as the Company may designate, duly endorsed
by, or accompanied by a written instrument of transfer in form satisfactory to
the Company and the Note Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees by the Note Registrar. No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to recover any tax or
other governmental charge payable in connection therewith.
No recourse for the payment of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price, or interest, if any, in respect of this Security, or for any
claim based hereon or otherwise in respect hereof, and no recourse under or upon
any obligation, covenant or agreement of the Issuers in the Indenture or any
indenture supplemental thereto or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, officer or director or subsidiary, as such, past,
present or future, of the Issuers or of any successor corporations, either
directly or through the Issuers or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of consideration for the issue hereof, expressly waived and
released.
Prior to due presentation of a Security for registration of transfer,
the Issuers, the Trustee and any agent of the Issuers or the Trustee may treat
the Person in whose name such Security is registered, as the owner thereof for
all purposes, whether or not such Security be overdue, and neither the Issuers,
the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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38
SECTION 2.03. Form of Election of Holder to Require Repurchase.
ELECTION OF HOLDER TO REQUIRE REPURCHASE
(a) Pursuant to Section 14.01 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Issuers.
(b) The undersigned hereby directs the Issuers to pay it or
_______________ the Fundamental Change Redemption Price plus interest accrued
to, but excluding, the Fundamental Change Redemption Date, as provided
in the Indenture.
Dated:____________________
__________________________
__________________________
Signature(s)
Principal amount to be repurchased: ____________________
Remaining principal amount following such repurchase: ______________
Signature(s) must be guaranteed by a commercial bank or trust company or a
member firm of a major stock exchange with membership in an approved
signature guarantee medallion program pursuant to the Securities and Exchange
Commission Rule 17Ad-15 if shares of Common Stock are to be issued, or
Securities to be delivered, other than to or in the name of the registered
Holder._______________________. Signature Guaranteed
NOTICE: The signature to the foregoing Election must correspond to the name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SECTION 2.04. Form of Conversion Notice.
CONVERSION NOTICE
The undersigned Holder of this Security hereby irrevocably exercises
the option to convert this Security, or any portion of the principal amount
hereof (which is an integral multiple of U.S.$1,000) below designated, into
shares of Common Stock of the Company in accordance with the terms of the
Indenture
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39
referred to in this Security, and directs that such shares, together with a
check in payment for any fractional shares and any Securities representing any
unconverted principal amount hereof, be delivered to and be registered in the
name of the undersigned unless a different name has been indicated below. If
shares of Common Stock or Securities are to be registered in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto. Any amount required to be paid by the undersigned
on account of interest accompanies this Security.
Dated:---------------------
---------------------------
---------------------------
Signature(s)
If shares or Securities are to be If only a portion of the Security is
registered in the name of a Person to be converted, please indicate:
other than the Holder, please print
such Person's name and address: Principal amount to be converted:
U.S.$
----------------------------- ----------------------------
Name
-----------------------------
Address
-----------------------------
Social Security or other Taxpayer
Identification Number, if any
Signature(s) must be guaranteed by a commercial bank or trust company or a
member firm of a major stock exchange with membership in an approved signature
guarantee medallion program pursuant to the Securities and Exchange Commission
Rule 17Ad-15 if shares of Common Stock are to be issued, or
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40
Securities to be delivered, other than to or in the name of the registered
Holder._______________________. Signature Guaranteed
SECTION 2.05. Form of Certificate of Authentication. The Trustee's
certificate of authentication shall be in substantially the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: _______________
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:________________________________
Authorized Signatory
ARTICLE 3
THE SECURITIES
SECTION 3.01. Title and Terms. The aggregate principal amount at
maturity of Securities which may be authenticated and delivered under this
Indenture is limited to U.S. $__________, except for Securities authenticated
and delivered in exchange for, or in lieu of, other Securities pursuant to
Section 3.04, 3.05, 3.06, 8.05, 11.08, 12.02 or 14.02(e).
The Securities shall be known and designated as the "____% Convertible
Subordinated Notes due 2006" of the Issuers. Their Stated Maturity shall be
__________, 2006 and they shall bear interest on their principal amount from
__________, 1999, payable semi-annually in arrears on __________ and __________
in each year, commencing __________, 1999, at the rate of _____% until the
principal amount at maturity, Redemption Price or Fundamental Change Redemption
Price in respect thereof is due; provided, however, that payments shall only be
made on Business Days as provided in Section 1.12.
The principal, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price, and interest in respect of the
Securities shall be payable as provided in the form of Security set forth in
Section 2.02 and the Fundamental Change Redemption Price shall be payable at
such places as are identified in the Issuer Notice given pursuant to Section
14.02 (any
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city in which any Paying Agent is located being herein called a "PLACE OF
PAYMENT").
The Securities shall be redeemable at the option of the Company, in
whole or in part, and at the option of the Company as provided in Article 11 and
in the form of Security set forth in Section 2.02.
The Securities shall be convertible as provided in Article 12 (any city
in which any Conversion Agent is located being herein called a "PLACE OF
CONVERSION").
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article 13.
The Securities shall be subject to repurchase by the Issuers at the
option of the Holder as provided in Article 14.
SECTION 3.02. Denominations. The Securities shall be issuable in
registered form without coupons in denominations of $1,000 principal amount at
maturity and any multiple thereof. Every Security shall be dated the date of its
authentication, shall bear interest from the applicable date and shall be
payable on the dates specified on the face of the form of Security recited
above.
SECTION 3.03. Execution, Authentication, Delivery and Dating. The
Securities shall be executed on behalf of each Issuer, in each case by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or one of its Senior Vice Presidents or one of its Vice
Presidents, under an impression of its corporate seal or a facsimile of its
corporate seal reproduced thereon attested by its Treasurer or one of its
Assistant Treasurers or Secretary or one of its Assistant Secretaries. Any such
signature may be manual or facsimile.
Securities bearing the manual or facsimile signature of an individual
or individuals who were at any time the proper officer or officers of the
Issuers shall bind the Issuers, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Issuers may deliver Securities executed by the Issuers to
the Trustee or to its order for authentication (or to the Paying Agent),
together with an Issuer Order for the authentication and delivery of such
Securities, and the Trustee or an Authenticating Agent in accordance with such
Issuer Order shall authenticate and make available for delivery such Securities
as in this Indenture
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42
provided and not otherwise. In connection with any Issuer Order for
authentication, an Officers' Certificate and Opinion of Counsel pursuant to
Section 1.02 shall be required.
Each Security shall be dated the date of its authentication.
In authenticating the Securities and in accepting the additional
responsibilities under the Indenture in relation to such Securities, the Trustee
shall be entitled to receive and shall be fully protected in relying upon:
(a) A copy of the Board Resolution or Resolutions in or
pursuant to which the terms and form of the Securities were
established, and if the terms and form of such Securities are
established by an Officers' Certificate pursuant to general
authorization of the Board of Directors, such Officers' Certificate;
(b) an executed supplemental indenture, if any; and
(c) an Opinion of Counsel stating that:
(i) the form or forms of such Securities have been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been established in
conformity with the provisions of this Indenture;
(iii) such Securities, when completed by appropriate
insertions and executed and delivered by the Issuers to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued
by the Issuers in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute the legal, valid and binding
obligations of the Issuers, enforceable in accordance with their terms,
subject to applicable bankruptcy, insolvency, reorganization and other
similar laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equitable principles
and to such other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities;
(iv) all laws and requirements in respect of the execution and
delivery by the Issuers of such Securities and of the supplemental
indenture, if any, have been complied with and that authentication and
delivery of such Securities and the execution and delivery of the
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43
supplemental indenture, if any, by the Trustee will not violate the
terms of the Indenture;
(v) the Issuers have the corporate power to issue such
Securities, and have duly taken all necessary corporate action with
respect to such issuance; and
(vi) the issuance of such Securities will not contravene the
articles of incorporation or by-laws of the Issuers or result in any
violation of any of the terms or provisions of any law or regulation or
of any indenture, mortgage or other agreement by which the Issuers are
bound known to such Counsel, which violation would have a material
adverse effect on the Issuers.
The Trustee shall not be required to authenticate and deliver any such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or an Authenticating Agent by manual signature of an
authorized signatory, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder is entitled to the benefits of this Indenture.
Any Global Security shall represent such of the outstanding Securities
as shall be specified therein and shall provide that it shall represent the
aggregate amount of outstanding Securities from time to time endorsed thereon
and that the aggregate amount of outstanding Securities represented thereby may
from time to time be increased or reduced to reflect transfers or exchanges
permitted hereby. Any endorsement of a Global Security to reflect the amount of
any increase or decrease in the amount of outstanding Securities represented
thereby shall be made by the Trustee or the Custodian, at the direction of the
Trustee, in such manner and upon instructions given by the holder of such
Securities in accordance with this Indenture. Payment of principal, Issue Price,
accrued Original Issue Discount, Redemption Price, Fundamental Change Redemption
Price and interest , if any, in respect of any Global Security shall be made to
the Holder of such Global Security.
SECTION 3.04. Registration of Transfer and Exchange; Restrictions on
Transfer. (a) The Company shall cause to be kept at the Corporate Trust Office
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44
of the Trustee a register (the register maintained in such office and in any
other office or agency of the Company designated pursuant to Section 10.02
(including the office or agency of State Street Bank and Trust Company of
California, N.A., in the Borough of Manhattan, The City of New York) being
herein sometimes collectively referred to as the "NOTE REGISTER") in which,
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Securities and of transfers of Securities.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 10.02 for such
purpose, the Issuers shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate principal
amount and tenor and bearing such restrictive legends as may be required by this
Indenture.
At the option of the Holder, and subject to the further provisions of
this Section 3.04, Securities may be exchanged for other Securities of any
authorized denomination and of a like aggregate principal amount, upon surrender
of the Securities to be exchanged at any such office or agency maintained by the
Company pursuant to Section 10.02. Whenever any Securities are so surrendered
for exchange, and subject to the further provisions of this Section 3.04, the
Issuers shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive. Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Note Registrar) be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed, by the Holder thereof or his
attorney duly authorized in writing.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Issuers, evidencing the same
debt, and, subject to the other provisions of this Section 3.04, entitled to the
same benefits, under and subject to the same restrictions imposed by this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Except as provided in Section 3.06, no service charge shall be made to
a Holder for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
8.05, 11.08, 12.02 or 14.02(e) (other than, in the case of Securities, where the
Common Stock is to be issued or delivered in a name other than that of the
Holder of the Security) not involving any transfer and other than any stamp and
other duties, if any, which may be imposed in connection with any such transfer
or exchange by the
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United States or any political subdivision thereof or therein, which shall be
paid by the Company.
In the event of a redemption of the Securities in part, neither the
Company nor the Note Registrar will be required (a) to register the transfer of
or exchange of Securities for a period of 15 days immediately preceding the date
notice is given identifying the serial numbers of the Securities called for such
redemption or (b) to register the transfer of or exchange any Security, or
portion thereof, called for redemption.
(b) So long as the Securities are eligible for book-entry settlement
with the Depositary, or unless otherwise required by law, all Securities that
are so eligible may be represented by one or more Global Securities registered
in the name of the Depositary or the nominee of the Depositary, except as
otherwise specified below. The transfer and exchange of beneficial interests in
any such Global Security shall be effected through the Depositary in accordance
with this Indenture and the procedures of the Depositary therefor.
Except as provided below, beneficial owners of a Global Security shall
not be entitled to have certificates registered in their names, will not receive
or be entitled to receive physical delivery of certificates in definitive form
and will not be considered Holders of such Global Securities.
(c) Notwithstanding any other provisions of this Indenture (other than
the provisions set forth in the second paragraph of Section 3.04(b) and in this
Section 3.04(c)), a Global Security may not be transferred as a whole or in part
except by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary.
The Depositary shall be a clearing agency registered under the Exchange
Act. The Company initially appoints DTC to act as Depositary with respect to the
Global Securities. Initially, each Global Security shall be issued to the
Depositary, registered in the name of Cede & Co., as the nominee of the
Depositary, and deposited with the Custodian for Cede & Co.
If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security, the Company may appoint a successor Depositary with respect to such
Global Security. If a successor Depositary is not appointed by the Company
within ninety (90) days after the Company receives such notice, the Company will
execute, and the Trustee, upon receipt of an Officers' Certificate for the
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authentication and delivery of Securities, will authenticate and deliver,
definitive Securities, in aggregate principal amount equal to the Principal
Amount of such Global Security, in exchange for such Global Security.
If a definitive Security is issued in exchange for any portion of a
Global Security after the close of business at the office or agency where such
exchange occurs on any Record Date and before the opening of business at such
office or agency on the next succeeding Interest Payment Date, interest will not
be payable on such Interest Payment Date in respect of such Security, but will
be payable on such Interest Payment Date, subject to the provisions of Section
3.07, only to the Person to whom interest in respect of such portion of such
Global Security is payable in accordance with the provisions of this Indenture.
Definitive Securities issued in exchange for all or a part of a Global
Security pursuant to this Section 3.04 shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee.
Upon execution and authentication, the Trustee shall deliver such definitive
Securities to the Persons in whose names such definitive Securities are so
registered.
At such time as all interests in a Global Security have been redeemed,
repurchased, converted, canceled, exchanged for definitive Securities, or
transferred to a transferee who receives definitive Securities, such Global
Security shall, upon receipt thereof, be canceled by the Trustee in accordance
with standing procedures and instructions existing between the Depositary and
the Custodian. At any time prior to such cancellation, if any interest in a
Global Security is exchanged for definitive Securities, redeemed, converted,
repurchased or canceled, exchanged for definitive Securities in certificated
form or transferred to a transferee who receives definitive Securities therefor
or any definitive Security is exchanged or transferred for part of a Global
Security, the principal amount of such Security shall, in accordance with the
standing procedures and instructions existing between the Depositary and the
Custodian, be appropriately reduced or increased, as the case may be, and an
endorsement shall be made on such Global Security, by the Trustee or the
Custodian, at the direction of the Trustee, to reflect such reduction or
increase.
SECTION 3.05. Temporary Securities. Pending the preparation of
definitive Securities, the Issuers may execute and the Trustee or an
Authenticating Agent shall, upon the written request of the Issuers,
authenticate and deliver temporary Securities (printed or lithographed).
Temporary Securities shall be issuable in any authorized denomination, and
substantially in the form of the Securities in certificated form, but with such
omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the
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Issuers. Every such temporary Security shall be executed by the Issuers and
authenticated by the Trustee or such Authenticating Agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the definitive Securities. Without unreasonable delay the Issuers will execute
and deliver to the Trustee or such Authenticating Agent Securities and thereupon
any or all temporary Securities may be surrendered in exchange therefor, at each
office or agency maintained by the Company and the Trustee or such
Authenticating Agent shall authenticate and make available for delivery in
exchange for such temporary Securities an equal aggregate principal amount of
definitive Securities. Such exchange shall be made by the Issuers at its own
expense and without any charge therefor. Until so exchanged, the temporary
Securities shall in all respects be entitled to the same benefits and subject to
the same limitations under this Indenture as Securities authenticated and
delivered hereunder.
SECTION 3.06. Mutilated, Destroyed, Lost or Stolen Securities. If any
mutilated Security is surrendered to the Trustee or to a Note Registrar, the
Issuers shall execute, the Trustee or an Authenticating Agent shall authenticate
and the Trustee or Note Registrar shall deliver in exchange therefor a new
Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there be delivered to the Company and either to the Trustee or to a
Note Registrar:
(a) evidence to their satisfaction of the destruction, loss or
theft of any Security, and
(b) such security or indemnity as may be satisfactory to the
Company and the Trustee and such Note Registrar to save each of them
and any agent of either of them harmless, then, in the absence of
actual notice to the Company, the Trustee or the Note Registrar that
such Security has been acquired by a bona fide purchaser, the Issuers
shall execute, and upon its request, the Trustee or an Authenticating
Agent shall authenticate and the Trustee or Note Registrar shall
deliver in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security, a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion, but
subject to any conversion rights, may, instead of issuing a new Security, pay
such Security.
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Upon the issuance of any new Security under this Section 3.06, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto (other than any
stamp and other duties, if any, which may be imposed in connection therewith by
the United States of America or any political subdivision thereof or therein,
which shall be paid by the Company) and any other expenses (including the fees
and expenses of the Trustee, any Paying Agent and any Note Registrar) connected
therewith.
Every new Security issued pursuant to this Section 3.06 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Issuers, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and such new Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities duly issued
hereunder.
The provisions of this Section 3.06 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies of any Holder with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved. 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 that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest except (i) that the
interest payable upon redemption (unless the date of redemption is an Interest
Payment Date) will be payable to the person to whom principal amount at maturity
is payable and (ii) as set forth in the next succeeding sentence. In the case of
any Security (or portion thereof) which is converted into Common Stock during
the period from, but excluding, a Regular Record Date to, but excluding, the
next succeeding Interest Payment Date either (i) if such Security (or portion
thereof) has been called for redemption on a Redemption Date which occurs during
such period, or is to be redeemed in connection with a Fundamental Change on a
Fundamental Change Redemption Date which occurs during such period, the Issuers
shall not be required to pay interest on such Interest Payment Date in respect
of any such Security (or portion thereof) except to the extent required to be
paid upon redemption of such Security or portion thereof pursuant to Section
11.07 or Section 14.01 hereof or (ii) if otherwise, any Security (or portion
thereof) submitted for conversion during such period shall be accompanied by
funds equal to the interest payable on such succeeding Interest Payment Date on
the principal amount at maturity so converted in accordance with the provisions
of Section 12.02 hereof, unless at the time of conversion there exists a default
in the payment of interest on the Securities. Interest may, at the option of the
Issuers, be paid by
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check mailed to the address of such person on the registry kept for such
purposes or by wire transfer in immediately available funds to an account
maintained by such person in the United States; provided that with respect to
any Holder with an aggregate principal amount at maturity equal to or in excess
of $2,000,000, at the request of such Holder in writing the Issuers shall pay
interest on such Holder's Securities by wire transfer in immediately available
funds.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"DEFAULTED INTEREST") shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by an Issuer, at its election in each case, as
provided in clause (a) or (b) below:
(a) An Issuer 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 for the payment of such Defaulted
Interest, which shall be fixed in the following manner. Such Issuer
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security, and the date of the proposed
payment, and at the same time such Issuer 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 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 date of the
proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall
promptly notify such Issuer of such Special Record Date and, in the
name and at the expense of such Issuer, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities at such Holder's address as it appears in the Note Register,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid
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).
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(b) An Issuer 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 given
by such Issuer to the Trustee of the proposed payment pursuant to this
clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each 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 accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company or the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving payment
of principal, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price, and (subject to Section 3.07) interest, if
any, in respect of such Security and for all other purposes whatsoever, whether
or not such Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Note
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any Depositary, as a Holder, with respect to
such Global Security or impair, as between such Depositary and owners of
beneficial interests in such Global Security, the operation of customary
practices governing the exercise of the rights of such Depositary (or its
nominee) as Holder of such Global Security.
SECTION 3.09. Cancellation. All Securities surrendered for payment,
redemption, repurchase, registration of transfer or exchange or conversion
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee. All Securities so delivered to the Trustee shall be canceled promptly
by the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities canceled as provided in this Section 3.09. The Trustee shall
destroy all canceled
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Securities in accordance with applicable law and its customary practices in
effect from time to time.
SECTION 3.10. Computation of Interest. Interest on the Securities shall
be computed on the basis of a 360-day year of twelve 30-day months. Accrual of
Original Issue Discount shall be calculated on the basis of a 360-day year of
twelve 30-day months, compounded semi-annually.
SECTION 3.11. CUSIP Numbers. The Company in issuing Securities may use
"CUSIP" numbers (if then generally in use) in addition to serial numbers; if so,
the Trustee shall use such "CUSIP" numbers in addition to serial numbers in
notices of redemption and repurchase as a convenience to Holders; provided that
any such notice may state that no representation is made as to the correctness
of such CUSIP numbers either as printed on the Securities or as contained in any
notice of a redemption or repurchase and that reliance may be placed only on the
serial or other identification numbers printed on the Securities, and any such
redemption or repurchase shall not be affected by any defect in or omission of
such CUSIP numbers. The Company will promptly notify the Trustee of any changes
in the "CUSIP" numbers.
SECTION 3.12. Company to Determine Certain Matters. In accordance with
the provisions of this Indenture, the Company shall determine solely certain
matters relating to the administration of the Securities, including but not
limited to Sections 3.04, 3.06, 3.08, 3.11, 10.02, 14.02 and Article 15. It
shall be at the Company's sole option to exercise the redemption provisions set
forth in Article 11, although the Co-Obligor shall also be obligated to make
payments of the Redemption Price. In addition, it shall be the sole obligation
of the Company to satisfy the provisions of Article 12.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture. This Indenture
shall, upon an Issuer Request, cease to be of further effect (except as to any
surviving rights of conversion, or registration of transfer or exchange, or
replacement of Securities herein expressly provided for and the Issuers'
obligations to the Trustee pursuant to Section 6.07), and the Trustee, at the
expense of the Issuers, shall execute proper instruments in form and substance
satisfactory to the Trustee acknowledging satisfaction and discharge of this
Indenture, when
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(a) either
(i) all Securities theretofore authenticated and
delivered (other than (A) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.06 and (B) Securities for whose
payment money has theretofore been deposited with the Trustee
or the Paying Agent in trust or segregated and held in trust
by the Issuers and thereafter repaid to the Issuers or
discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to
the Trustee or the Paying Agent or its agent for cancellation
(other than Securities referred to in clauses (A) and (B) of
clause (a)(i) above)
(A) have become due and payable, or
(B) will have become due and payable at
their Stated Maturity within one year, or
(C) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
Issuers,
and the Issuers, in the case of clause (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds
(immediately available to the Holders in the case of clause (A)) in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price and
Fundamental Change Redemption Price, and interest, if any, to the date
of such deposit in the case of Securities which have become due and
payable or to the Stated Maturity, Redemption Date or Fundamental
Change Redemption Date, as the case may be;
(b) the Issuers have paid or caused to be paid all other sums
payable hereunder by the Issuers; and
(c) the Issuers have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
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precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuers to the Trustee under Section 6.07, the obligations of
the Issuers to any Authenticating Agent under Section 6.12 and, if money shall
have been deposited with the Trustee pursuant to clause (a)(ii) of this Section
4.01, the obligations of the Trustee under Section 4.02 and the last paragraph
of Section 10.03 shall survive. Funds held in trust pursuant to this Section are
not subject to the provisions of Article 13.
SECTION 4.02. Application of Trust Money. Subject to the provisions of
the last paragraph of Section 10.03, all money deposited with the Trustee
pursuant to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine to the Persons entitled thereto, of
the principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price, and interest, if any, for
whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.
All moneys deposited with the Trustee pursuant to Section 4.01 (and
held by it or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Issuers upon an Issuer Request.
SECTION 4.03. Co-Obligor's Obligations Released. If the 1997 Securities
are no longer outstanding, then the Co-Obligor shall be released from all of its
obligations under this Indenture, including, without limitation, with respect to
its covenant under Section 10.01, and the Trustee, at the expense of the
Company, shall execute proper instruments in form and substance satisfactory to
the Trustee acknowledging satisfaction and discharge of the Co-Obligor's
obligations under this Indenture.
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ARTICLE 5
REMEDIES
SECTION 5.01. Events of Default. "Event of Default", wherever used
herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be occasioned by the provisions of Article
13 or be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(a) default in the payment of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, or Fundamental Change Redemption Price, on any Security as and
when the same shall become due and payable, including at Maturity or in
connection with any redemption or repurchase, whether or not such
payment is prohibited by the subordination provisions of Article 13; or
(b) default in the payment of any interest upon any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days, whether or not such payment is prohibited by the
subordination provisions of Article 13; or
(c) default in the performance, or breach, of any covenant or
warranty of the Company or the Co-Obligor, as the case may be, in this
Indenture (other than a covenant or warranty a default in the
performance or breach of which is specifically dealt with elsewhere in
this Section), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail,
to the Company or the Co-Obligor by the Trustee or to the Company or
the Co-Obligor and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities a written
notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
(d) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company, the
Co-Obligor or any Significant Subsidiary in an involuntary case or
proceeding under any applicable bankruptcy, moratorium of payments,
insolvency, reorganization or other similar law or (ii) a decree or
order adjudging the Company, the Co-Obligor or any Significant
Subsidiary bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company,
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the Co-Obligor or any Significant Subsidiary under any applicable
federal or state law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company, the Co-Obligor or any Significant Subsidiary or of
substantially all of the Company, Co-Obligor or Significant
Subsidiary's property, as the case may be, or ordering the winding up
or liquidation of the Company, Co-Obligor or Significant Subsidiary's
affairs and the continuance of any such decree or order unstayed and in
effect for a period of 60 consecutive days; or
(e) the commencement by the Company, the Co-Obligor or any
Significant Subsidiary of a voluntary case or proceeding under any
applicable bankruptcy, moratorium of payments, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent or to be granted moratorium
of payment, or the consent by the Company, the Co-Obligor or any
Significant Subsidiary to the entry of a decree or order for relief in
respect of the Company, the Co-Obligor or Significant Subsidiary, as
the case may be, in an involuntary case or proceeding under any
applicable bankruptcy, moratorium of payment, insolvency,
reorganization or other similar law or to the commencement of any
bankruptcy, moratorium of payment or insolvency proceedings against the
Company, the Co-Obligor or any Significant Subsidiary, or the filing by
the Company, the Co-Obligor or any Significant Subsidiary of a petition
or consent seeking reorganization or similar relief under any
applicable law, or the consent by the Company, the Co-Obligor or any
Significant Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official
of the Company, the Co-Obligor or Significant Subsidiary, as the case
may be, or of substantially all of the property of the Company, the
Co-Obligor or Significant Subsidiary, as the case may be, or the making
by the Company, the Co-Obligor or any Significant Subsidiary of an
assignment for the benefit of creditors, or the admission by the
Company, the Co-Obligor or any Significant Subsidiary in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company, the Co-Obligor or any Significant
Subsidiary in furtherance of any such action; provided that a
liquidation or winding up of a Significant Subsidiary pursuant to
applicable corporate law shall not be deemed to be an Event of Default
hereunder.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Section 5.01(d) or
(e) with respect to the Company or the Co-Obligor) occurs and is continuing,
then
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in every such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare the sum of the Issue
Price plus accrued Original Issue Discount from the date of issue of the
Securities to the date of declaration and the interest accrued thereon to be due
and payable immediately, by a notice in writing to the Issuers (and to the
Trustee if given by the Holders), and upon any such declaration the same shall
become immediately due and payable. If an Event of Default specified in Section
5.01(d) or (e) occurs with respect to the Company or the Co-Obligor, the sum of
the Issue Price plus accrued Original Issue Discount from the date of issue of
the Securities to the date of declaration, and accrued interest on all the
Securities then Outstanding shall ipso facto become immediately due and payable
without any declaration or other Act of the Holders or any act on the part of
the Trustee.
At any time after such declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article 5 provided, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Issuers and the Trustee, may rescind and annul such declaration and its
consequences if
(a) The Issuers have paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest on all Securities;
(ii) the principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price and
Fundamental Change Redemption Price in respect of any
Securities which have become due otherwise than by such
declaration of acceleration and any interest thereon at the
rate borne by the Securities (giving effect to accrual of
Original Issue Discount);
(iii) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate borne by
the Securities (giving effect to the accrued Original Issue
Discount); and
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default, other than the nonpayment of the
principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price, or any
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interest, in respect of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No rescission or annulment referred to above shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Issuers covenant that, if
(a) default is made in the payment of any interest on any
Security when it becomes due and payable and such default continues for
a period of 30 days, or
(b) default is made in the payment of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption
Price or Fundamental Change Redemption Price, as and when the same
shall become due and payable, including at Maturity or in connection
with any redemption or repurchase,
the Issuers will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount then due and payable
on such Securities for the principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price or Fundamental Change Redemption
Price, or interest, if any, with interest on the overdue principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price and
Fundamental Change Redemption Price and on any overdue interest, to the extent
permitted by law, at the rate borne by the Securities (giving effect to the
accrued Original Issue Discount), and in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Issuers fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Issuers or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Issuers or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of
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Securities by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, moratorium of
payments, reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Issuers or any other obligor upon the Securities or
the property of the Issuers or of such other obligor or the creditors of either,
the Trustee (irrespective of whether the principal amount at maturity of, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price, and any interest in respect of, the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Issuers
for the payment of overdue principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price
or interest in respect of the Securities) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and
interest, if any, owing and unpaid in respect of the Securities and
take such other actions, including participating as a member, voting or
otherwise, of any official committee of creditors appointed in such
matter, and to file such other papers or documents, in each of the
foregoing cases, as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of Securities allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the same
after deduction of any amounts due the Trustee under Section 6.07;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders of Securities to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and any other amounts due the Trustee under Section 6.07.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder of a Security in any such proceeding;
provided, however, that the Trustee may, on behalf of such Holders, vote for the
election of a trustee in bankruptcy or similar official.
SECTION 5.05. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which judgment
has been recovered.
SECTION 5.06. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article 5 shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal amount of maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price,
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.07;
SECOND: Subject to the provisions of Article 13, in case the
principal of the outstanding Securities shall not have become due and
be unpaid, to the payment of interest on the Securities in default in
the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the rate borne by
the Securities (giving effect to the accrual of Original Issue
Discount), such payments to be made ratably to the persons entitled
thereto;
THIRD: Subject to the provisions of Article 13, in case the
principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price or Fundamental Change Redemption Price and
interest, if any, in respect of the outstanding Securities shall have
become due, by declaration or otherwise, and be unpaid, to the payment
of the whole
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amount then owing and unpaid upon the Securities for principal amount
at maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price and interest, if any, with
interest on the overdue principal amount at maturity, Issue Price,
accrued Original Issue Discount, Redemption Price and Fundamental
Change Redemption Price, and (to the extent that such interest has been
collected by the Trustee) upon overdue installments of interest at the
rate borne by the Securities (giving effect to the accrual of Original
Issue Discount); and in case such monies shall be insufficient to pay
in full the whole amounts so due and unpaid upon the Securities, then
to the aggregate principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and interest, if any, without preference or priority
of principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price or Fundamental Change Redemption Price over
interest, or of interest over principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price or Fundamental
Change Redemption Price or of any installment of interest over any
other installment of interest, or of any Security over any other
Security, ratably to the aggregate of such principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price and accrued and unpaid
interest;
FOURTH: Subject to the provisions of Article 13, to the
payment of the remainder, if any, to the Issuers or any other person
lawfully entitled thereto.
SECTION 5.07. Limitation on Suits. No Holder of any Security shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred in compliance with such request;
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(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal
Amount at Maturity, Issue Price, Accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price and Interest and to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and accrued
interest on such Security, on or after the respective due dates expressed in
such Security, and to convert such Security in accordance with Article 12, and
to institute suit for the enforcement of any such payment and right to convert,
and such rights shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies. If the Trustee or any
Holder of a Security has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Issuers, the Trustee and the Holders of Securities shall be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and such Holders shall
continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders of
Securities is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity
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or otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or any acquiescence therein.
Every right and remedy given by this Article 5 or by law to the Trustee or to
the Holders of Securities may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or (subject to the limitations contained
in this Indenture) by the Holders of Securities.
SECTION 5.12. Control by Holders of Securities. Subject to Section
6.03(f), the Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; provided that
(a) such direction shall not be in conflict with any rule of
law or with this Indenture;
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction;
(c) the Trustee need not take any action which might result in
personal liability or be unjustly prejudicial to the Holders of
Securities not consenting; and
(d) such direction shall be presented by such Holders to the
Trustee in a timely manner.
SECTION 5.13. Waiver of Past Defaults. The Holders, either (a) through
the written consent of not less than a majority in aggregate principal amount of
the Outstanding Securities, or (b) by the adoption of a resolution, at a meeting
of Holders of the Outstanding Securities at which a quorum is present, by the
Holders of not less than a majority in aggregate principal amount of Outstanding
Securities represented at such meeting, may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except (i) in
the payment of the principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price or
interest, if any, in respect of the Securities, (ii) a failure by the Company to
convert any Securities into Common Stock, or (iii) in respect of a covenant or
provision hereof
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which under Article 8 cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his or her acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken, suffered or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; provided that the provisions of this Section 5.14 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount at maturity of the Securities outstanding, or to any suit
instituted by any Holder for the enforcement of the payment of the principal
amount at maturity, Issue Price, accrued Original Issue Discount, Redemption
Price, Fundamental Change Redemption Price and interest, if any, in respect of
any Security on or after the due date expressed in such Security or to any suit
for the enforcement of the right to convert any Security in accordance with the
provisions of Article 12.
SECTION 5.15. Waiver of Stay, Extension and Usury Laws. Each of the
Issuers covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension law or usury law or other law that
would prohibit or forgive the Issuers from paying all or any portion of its
obligations on the Securities as provided herein, wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and each of the Issuers (to the extent it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
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ARTICLE 6
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities. (a) 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 or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture, but not to verify the contents thereof.
(b) In case an Event of Default has occurred (which has not been cured
or waived and of which a Responsible Officer has actual knowledge), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(i) this paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in aggregate principal
amount of the
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Outstanding Securities or such lesser percentage as provided in this
Indenture relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee, under this Indenture.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
(e) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability has
not been provided to it.
SECTION 6.02. Notice of Defaults. Within 90 days after the occurrence
of any default hereunder as to which the Trustee has received written notice,
the Trustee shall give to all Holders of Securities, in the manner provided in
Section 1.06, notice of such default, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price or interest, if
any, in respect of any Security, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a trust committee of directors or Responsible Officers of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 6.03. Certain Rights of Trustee. Subject to the provisions of
Section 6.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate,
other certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Issuers mentioned herein
shall be sufficiently evidenced by an Issuer Request or Issuer Order,
and any resolution of the Board shall be sufficiently evidenced by a
Board Resolution;
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(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its selection and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of
indebtedness or other paper or document, but the Trustee in its sole
discretion may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Issuers, personally or
by agent or attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the permissive right of the Trustee to take or refrain
from taking any actions enumerated in this Indenture shall not be
construed as a duty and the Trustee shall not be answerable in such
actions other than for its own negligence, bad faith or willful
misconduct in exercising any such right; and
(i) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to
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be authorized or within the discretion or rights or powers conferred
upon it by the Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) shall be taken as the statements of the Issuers,
and the Trustee or any Authenticating Agent assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, of the Securities or of the Common Stock issuable
upon the conversion of the Securities. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the Issuers of Securities
or the proceeds thereof.
SECTION 6.05. May Hold Securities, Act as Trustee Under Other
Indentures. The Trustee, any Authenticating Agent, any Paying Agent, any
Conversion Agent or any other agent of the Issuers or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
and may otherwise deal with the Issuers with the same rights it would have if it
were not the Trustee, Authenticating Agent, Paying Agent, Conversion Agent or
such other agent.
The Trustee may become and act as trustee under other indentures under
which other securities, or certificates of interest or participation in other
securities, of the Issuers are outstanding in the same manner as if it were not
Trustee hereunder.
SECTION 6.06. Money Held in Trust. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed in writing with the Issuers.
SECTION 6.07. Compensation and Reimbursement. The Issuers agree,
jointly and severally,
(a) to pay to the Trustee from time to time such compensation
as the Issuers and the Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any
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provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except for
any such expense, disbursement or advance as may be attributable to its
negligence, bad faith or willful misconduct. The Trustee agrees to
repay such expenses, disbursements and advances attributable to its
negligence, bad faith or willful misconduct upon the entry of a final
nonappealable determination that the Trustee engaged in negligence, bad
faith or willful misconduct; and
(c) to indemnify the Trustee (and its directors, officers,
employees and agents) for, and to hold it harmless against, any loss,
liability or expense incurred without negligence, bad faith or willful
misconduct on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs,
expenses and reasonable attorneys' fees of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 5.01(d) or Section 5.01(e) in the case
of the Company, the Co-Obligor or any Significant Subsidiary, the expenses
(including the reasonable charges of its counsel) and the compensation for the
services are intended to constitute expenses of the administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
Any Paying Agent or Authenticating Agent appointed hereunder shall be
entitled to the benefits of Section 6.07(c) as if the indemnity set forth
therefor were specifically afforded to such Paying Agent or Authenticating
Agent.
The provisions of this Section shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee, any Paying Agent
or any Authenticating Agent, as the case may be. The obligations of the Issuers
under this Section to compensate the Trustee, to pay or reimburse the Trustee
for expenses, disbursements and advances and to indemnify and hold harmless the
Trustee shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture. As security for the performance of
such obligations of the Issuers, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price,
or interest with respect to particular Securities.
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SECTION 6.08. Corporate Trustee Required; Eligibility. There shall at
all times be a Trustee hereunder which shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such, having (or if the Trustee is
a member of a bank holding company, its bank holding company has) a combined
capital and surplus of at least U.S.$50,000,000, subject to supervision or
examination by Federal or state authority, in good standing. If such corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article and a successor shall be appointed pursuant to Section 6.09.
SECTION 6.09. Resignation and Removal; Appointment of Successor. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.10.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuers. If the instrument of acceptance by a successor Trustee
required by Section 6.10 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities, delivered
to the Trustee and the Issuers. If the instrument of acceptance by a successor
Trustee required by Section 6.10 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of removal, the removed Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If at any time:
(i) the Trustee shall cease to be eligible under Section 6.08
and shall fail to resign after written request therefor by the Issuers
or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(ii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
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property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case (i) the Issuers by Board Resolutions may remove the
Trustee, or (ii) subject to Section 5.14, any Holder of a Security who has been
a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Issuers, by Board Resolutions, shall promptly appoint a successor Trustee and
shall comply with the applicable requirements of this Section and Section 6.10.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities delivered to the Issuers and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.10, become the
successor Trustee and supersede the successor Trustee appointed by the Issuers.
If no successor Trustee shall have been so appointed by the Issuers or the
Holders of Securities and accepted appointment in the manner required by this
Section and Section 6.10, any Holder of a Security who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Issuers shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders of
Securities in the manner provided in Section 1.06. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.10. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Issuers and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Issuers or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property
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and money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Issuers shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be eligible under this Article.
SECTION 6.11. Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including the trust created by this Indenture), shall
be the successor of the Trustee hereunder, provided such corporation shall be
otherwise eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.12. Authenticating Agents. The Trustee may appoint an
additional Authenticating Agent or Agents with respect to the Securities which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon exchange or substitution pursuant to this Indenture.
Securities authenticated by an Authenticating Agent shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder, and every reference in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Issuers and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof, the District
of Columbia authorized under such laws to act as Authenticating Agent and
subject to supervision or examination by government or other fiscal authority.
If at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 6.12, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.12.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent
(including the duties under this Indenture), shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.12, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Issuers. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Issuers. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.12, the Trustee may appoint a successor
Authenticating Agent which shall be subject to acceptance by the Issuers. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.12.
The Issuers agree to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.12 and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 6.07.
If an Authenticating Agent is appointed with respect to the Securities
pursuant to this Section 6.12, the Securities may have endorsed thereon, in
addition to or in lieu of the Trustee's certification of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
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Dated: STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
as Trustee
By [Authenticating Agent],as Authenticating
Agent
By:
--------------------------------------
Authorized Signatory
SECTION 6.13. Disqualification; Conflicting Interest. If the Trustee
has or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
SECTION 6.14. Preferential Collection of the Claims Against the
Issuers. If and when the Trustee shall be or become a creditor of either Issuer
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of Section 311 of the Trust Indenture Act regarding the collection of
claims against such Issuer (or any such other obligor).
ARTICLE 7
CONSOLIDATION, MERGER, TRANSFER OR LEASE
SECTION 7.01. An Issuer May Consolidate, Etc., Only on Certain Terms.
An Issuer shall not consolidate or merge into any other corporation or convey or
transfer its properties and assets substantially as an entirety to any Person,
and shall not transfer and assign all its obligations of, and position as, an
Issuer hereunder, except for a consolidation or merger in which such Issuer is
the surviving party, unless:
(a) the Person formed by such consolidation or into which an
Issuer is merged or which acquires by conveyance or transfer the
properties and assets of such Issuer substantially as an entirety, or
to which obligations of, and position as, such Issuer hereunder are
transferred and assigned (the "SUCCESSOR") (i) shall be a corporation,
limited liability company, partnership or trust organized and existing
under the laws of, and resident for tax purposes in, the United States
of America or any political subdivision thereof, and (ii) shall
expressly assume, by an
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indenture supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, due and punctual payment of the
principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price and
interest, if any, on all of the Securities and the performance of every
covenant of this Indenture and in the Securities on the part of the
such Issuer to be performed or observed;
(b) immediately after giving effect to any such consolidation,
merger, conveyance or transfer, or such transfer and assignment, no
default and no Event of Default shall have occurred and be continuing;
and
(c) such Issuer has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance or transfer, or such transfer and
assignment, and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with.
SECTION 7.02. Successor Substituted. Upon any consolidation, merger or
any conveyance or transfer of the properties and assets of either Issuer
substantially as an entirety, or upon transfer and assignment of all obligations
of, and position as, an Issuer hereunder, in accordance with Section 7.01, the
Successor shall succeed to and be substituted for, and may exercise every right
and power of, an Issuer under this Indenture with the same effect as if such
Successor had been named as an Issuer herein. The Successor thereupon may cause
to be signed, and may issue either in its own name or in the name of VERITAS
Software Corporation or VERITAS Operating Corporation, as the case may be, any
or all of the Securities issuable hereunder which theretofore shall not have
been signed by an Issuer and delivered to the Trustee; and, upon the order of
the Successor instead of an Issuer and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of an Issuer to the Trustee for authentication, and
any Securities which the Successor thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the
Securities theretofore or thereafter issued in accordance with the terms of this
Indenture as though all of such Securities had been issued at the date of the
execution hereof. In the event of any such consolidation, merger, sale,
conveyance or lease, the person named as the "Company" or "Co-Obligor" in the
first paragraph of this Indenture or any successor which shall thereafter have
become such in the manner prescribed in this Article 7 may be dissolved, wound
up and liquidated at any time thereafter
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and such person shall be released from its liabilities as obligor and maker of
the Securities and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
ARTICLE 8
SUPPLEMENTAL INDENTURES
SECTION 8.01. Supplemental Indentures Without Consent of Holders of
Securities. Without the consent of any Holders of Securities, the Issuers, when
authorized by Board Resolutions, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto in form
satisfactory to the Trustee for any of the following purposes:
(a) to evidence the succession of another Person to an Issuer
and the assumption by any such successor of the covenants and
obligations of such Issuer herein and in the Securities as permitted by
this Indenture; or
(b) to add to the covenants of the Issuers for the benefit of
the Holders of Securities, or to surrender any right or power herein
conferred upon the Issuers; or
(c) to add any additional Events of Default; or
(d) to provide for the issuance under this Indenture of
Securities in coupon form (including Securities registrable as to
principal only) and to provide for exchangeability of such Securities
with the Securities issued hereunder in fully registered form and to
make all appropriate changes for such purpose; or
(e) to secure the Securities; or
(f) to provide for successor or additional trustees; or
(g) to make provision with respect to the conversion rights of
Holders of Securities pursuant to Section 12.11 or the repurchase
rights of Holders of Securities pursuant to Section 14.03; or
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(h) to comply with the requirements of the Trust Indenture Act
or the rules and regulations of the Commission thereunder in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by this Indenture or otherwise; or
(i) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or which is otherwise defective, or to make any other provisions
with respect to matters or questions arising under this Indenture as
the Issuers and the Trustee may deem necessary or desirable, provided,
such action pursuant to this clause (i) shall not adversely affect the
interests of the Holders of Securities in any material respect; or
(j) to release the Co-Obligor from its obligations pursuant to
Section 4.03.
Upon Issuer Requests, accompanied by Board Resolutions authorizing the
execution of any such supplemental indenture, and subject to and upon receipt by
the Trustee of the Opinion of Counsel described in Section 8.03 hereof, the
Trustee shall join with the Issuers in the execution of any supplemental
indenture authorized or permitted by the terms of this Indenture and to make any
further appropriate agreements and stipulations which may be therein contained.
SECTION 8.02. Supplemental Indentures with Consent of Holders of
Securities. With either (a) the written consent of the Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities, by the
Act of said Holders delivered to the Issuers and the Trustee, or (b) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Securities
at which a quorum is present, by the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, the Issuers, when
authorized by Board Resolutions, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the rights of the Holders of Securities under this
Indenture; provided, however, that no such supplemental indenture shall:
(i) extend the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the rate or extend
the time of payment of interest payable thereon, change the rate of
accrual or extend the time of payment in connection with Original Issue
Discount, or reduce the principal amount at maturity thereof, or reduce
any amount payable upon redemption thereof, change the optional
election of the Company to make redemption of any Security or the
obligation of the
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Issuers to pay the Redemption Price upon such election pursuant to
Article 11, or impair or affect the right of any Holder to institute
suit for the payment thereof, or make the principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price or interest, if any, in respect
thereof payable in any coin or currency other than that provided in the
Securities, or, except as permitted by Section 12.11, adversely affect
the right to convert any Security as provided in Article 12, or modify
the provisions of this Indenture with respect to the subordination of
the Securities in a manner adverse to the Holders of Securities, in any
material respect, without the consent of the Holder of each Security so
affected, or
(ii) reduce the aforesaid percentage in aggregate principal
amount of the Outstanding Securities the consent of whose Holders is
required for any such supplemental indenture, without the consent of
the Holder of each Outstanding Security.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 8.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Sections
6.01 and 6.03) shall be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture, and that such supplemental indenture has been duly
authorized, executed and delivered by the Issuers and constitutes a valid and
legally binding obligation of the Issuers enforceable against the Issuers in
accordance with its terms. The Trustee may, but shall not be obligated to, enter
into any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 8.04. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 8.05. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a
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notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Issuers shall so determine, new Securities so
modified as to conform, in the opinion of the Issuers and the Trustee, to any
such supplemental indenture may be prepared and executed by the Issuers and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities.
SECTION 8.06. Notice of Supplemental Indentures. Promptly after the
execution by the Issuers and the Trustee of any supplemental indenture pursuant
to the provisions of Section 8.02, the Issuers shall give notice to all Holders
of Securities of such fact, setting forth in general terms the substance of such
supplemental indenture, in the manner provided in Section 1.06. Any failure of
the Issuers to give such notice, or any defect therein, shall not in any way
impair or affect the validity of any such supplemental indenture.
ARTICLE 9
MEETINGS OF HOLDERS OF SECURITIES
SECTION 9.01. Purposes for Which Meetings May Be Called. A meeting of
Holders of Securities may be called at any time and from time to time pursuant
to this Article to make, give or take any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be made, given or taken by Holders of Securities.
SECTION 9.02. Call, Notice and Place of Meetings. (a) The Trustee may
at any time call a meeting of Holders of Securities for any purpose specified in
Section 9.01, to be held at such time and at such place in Los Angeles,
California or in the Borough of Manhattan, The City of New York, as the Trustee
shall determine. Notice of every meeting of Holders of Securities, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
1.06, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time an Issuer, pursuant to a Board Resolution, or
the Holders of at least 25% in aggregate principal amount of the Outstanding
Securities shall have requested the Trustee to call a meeting of the Holders of
Securities for any purpose specified in Section 9.01, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then such Issuer or
the Holders of
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Securities in the amount specified, as the case may be, may determine the time
and the place in the Borough of Manhattan, The City of New York for such meeting
and may call such meeting for such purposes by giving notice thereof as provided
in paragraph (a) of this Section.
SECTION 9.03. Persons Entitled to Vote at Meetings. To be entitled to
vote at any meeting of Holders of Securities, a Person shall be (a) a Holder of
one or more Outstanding Securities on the applicable record date, or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of Holders shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Issuers and their counsel.
SECTION 9.04. Quorum; Action. The Persons entitled to vote a majority
in aggregate principal amount of the Outstanding Securities shall constitute a
quorum. In the absence of a quorum within 30 minutes of the time appointed for
any such meeting, the meeting shall, if convened at the request of Holders of
Securities, be dissolved. In any other case, the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
reconvened meeting, such reconvened meeting may be further adjourned for a
period not less than 10 days as determined by the chairman of the meeting prior
to the adjournment of such reconvened meeting (subject to repeated applications
of this sentence). Notice of the reconvening of any adjourned meeting shall be
given as provided in Section 9.02(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is scheduled
to be reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage of the principal amount of the Outstanding Securities
which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum, the Persons entitled to vote 25% in aggregate principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 8.02) shall be effectively passed and decided
if passed or decided by not less than a majority in aggregate principal amount
of the Outstanding Securities represented and entitled to vote at such meeting.
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Any resolution passed or decisions taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not present or represented at the meeting. The
Trustee shall, in the name and at the expense of the Issuers, notify all the
Holders of Securities of any such resolutions or decisions pursuant to Section
1.06.
SECTION 9.05. Determination of Voting Rights; Conduct and Adjournment
of Meetings. (a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities in regard to proof of the holding of Securities
and of the appointment of proxies and in regard to the appointment and duties of
inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the
conduct of the meeting as it shall deem appropriate. Except as otherwise
permitted or required by any such regulations, the holding of Securities shall
be proved in the manner specified in Section 1.04 and the appointment of any
proxy shall be proved in the manner specified in Section 1.04.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman (which may be the Trustee) of the meeting, unless the meeting
shall have been called by an Issuer or by Holders of Securities as provided in
Section 9.02(b), in which case such Issuer or the Holders of Securities calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities represented at the meeting.
(c) At any meeting, each Holder of a Security or proxy shall be
entitled to one vote for each U.S.$1,000 principal amount at maturity of
Securities held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Security or proxy.
(d) Any meeting of Holders of Securities duly called pursuant to
Section 9.02 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in aggregate principal amount at maturity of
the Outstanding Securities represented at the meeting, and the meeting may be
held as so adjourned without further notice.
SECTION 9.06. Counting Votes and Recording Action of Meetings. The vote
upon any resolution submitted to any meeting of Holders of Securities shall be
by written ballots on which shall be subscribed the signatures of the Holders of
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Securities or of their representatives by proxy and the principal amounts at
maturity and serial numbers of the Outstanding Securities held or represented by
them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
Securities shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 9.02 and, if
applicable, Section 9.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Issuers and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE 10
COVENANTS
SECTION 10.01. Payment of Principal Amount at Maturity, Issue Price,
Accrued Original Issue Discount, Redemption Price, Fundamental Change Redemption
Price and Interest. The Issuers covenant and agree that they will duly and
punctually pay the principal amount at maturity, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price and
interest, if any, in respect of the Securities in accordance with the terms of
the Securities and this Indenture. The Issuers will deposit or cause to be
deposited with the Trustee on or prior to the due date for any installment of
interest thereon or on the Stated Maturity of any Security all payments so due,
which payments shall be in immediately available funds on the date of such due
date or Stated Maturity, as the case may be.
SECTION 10.02. Maintenance of Offices or Agencies. The Company hereby
appoints the Corporate Trust Office of the Trustee in Los Angeles, California
and the office or agency of the Trustee in the Borough of Manhattan, The City of
New York, as places where Securities may be presented or surrendered for
payment, where Securities may be surrendered for registration of transfer or
exchange, where Securities may be surrendered for conversion, and where notices
and demands to or upon the Company in respect of the Securities
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and this Indenture may be served, and where Securities may be surrendered for
registration of transfer or exchange and where Securities may be surrendered for
conversion.
The Company may at any time and from time to time vary or terminate the
appointment of any such agent or appoint any additional agents for any or all of
such purposes; provided, however, that until all of the Securities have been
delivered to the Trustee for cancellation, or moneys sufficient to pay the
principal amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price and interest, if any, in
respect of the Securities have been made available for payment and either paid
or returned to the Company pursuant to the provisions of Section 10.03, the
Company will maintain in the Borough of Manhattan, The City of New York, an
office or agency where Securities may be presented or surrendered for payment
and conversion, where 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, and notice to the Holders in accordance with
Section 1.06, of the appointment or termination of any such agents and of the
location and any change in the location of any such office or agency.
If at any time the Company shall fail to maintain any such required
office or agency, or shall fail to furnish the Trustee with the address thereof,
presentations and surrenders may be made and notices and demands may be served
on the office or agency of the Trustee in the Borough of Manhattan, the City of
New York.
SECTION 10.03. Money for Security Payments to Be Held in Trust. If the
Company shall act as its own Paying Agent, it will, on or before each due date
of the principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price or interest, if
any, in respect of any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the amounts so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and the Company will promptly notify the Trustee of its
action or failure so to act and of any failure by the Issuers (or by any other
obligor under the Securities) to make any payment of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price or interest, if any, in respect of the
Securities when the same shall become due and payable.
Whenever there shall be one or more Paying Agents, the Issuers will, on
or prior to each due date of the principal amount at maturity, Issue Price,
accrued
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Original Issue Discount, Redemption Price, Fundamental Change Redemption Price
or interest, if any, in respect of any Securities, deposit with such Paying
Agent a sum sufficient to pay such amounts so becoming due, such sum to be held
for the benefit of the Persons entitled to such principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
Change Redemption Price or interest, if any, and (unless such Paying Agent is
the Trustee) the Issuers will promptly notify the Trustee of their action or any
failure so to act.
The Issuers will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
amount at maturity, Issue Price, accrued Original Issue Discount,
Redemption Price, Fundamental Change Redemption Price or interest, if
any, in respect of Securities for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise
disposed of as herein provided;
(b) give the Trustee notice of any default by the Issuers (or
any other obligor upon the Securities) in the making of any payment of
the principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price or
interest, if any, in respect of the Securities, when the same shall be
due and payable; and
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held by such Paying Agent.
An Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal amount at maturity,
Issue Price, accrued Original Issue Discount, Redemption Price, Fundamental
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Change Redemption Price, or interest, if any, in respect of any Security and
remaining unclaimed for the earlier of ten days prior to the time such money
would escheat to the state or two years after such amount has become due and
payable shall be paid to the Issuers or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Issuers for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
SECTION 10.04. Corporate Existence. Subject to Article 7, the Issuers
will do or cause to be done all things necessary to preserve and keep in full
force and effect their existence.
SECTION 10.05. Statement by Officers as to Default. The Issuers will
deliver to the Trustee within 120 days after the end of each fiscal year of the
Issuers an Officers' Certificate stating that in the course of performance by
the signers of their duties as such officers of the Issuers they would normally
obtain knowledge of whether any default exists in the performance and observance
of any of the terms, provisions and conditions of this Indenture and whether the
Issuers have kept, observed, performed and fulfilled their obligations under
this Indenture. Such Officers' Certificate shall further state, as to each such
officer signing such Certificate, to the best of the knowledge of such officer,
as of the date of such Officers' Certificate, (a) whether any such default
exists, (b) whether the Issuers (as applicable) during the preceding fiscal year
kept, observed, performed and fulfilled each and every covenant and obligation
of the Issuers under this Indenture and (c) whether there was any default in the
performance and observance of any of the terms, provisions or conditions of this
Indenture during such preceding fiscal year. If the officer or officers signing
the Officers' Certificate know of such a default, whether then existing or
occurring during such preceding fiscal year, the Officers' Certificate shall
describe such default and its status with particularity. The Issuers shall also
promptly notify the Trustee if the Issuers' fiscal year is changed so that the
end thereof is on any date other than the then current fiscal year end date.
The Issuers will deliver to the Trustee, forthwith and in any event
within 5 days after the Issuers become aware of any default in the performance
or observance of any covenant, agreement or condition contained in this
Indenture, or any Event of Default, an Officers' Certificate specifying with
particularity such default or Event of Default and further stating what action
the Issuers have taken, is taking or propose to take with respect thereto.
Any notice required to be given under this Section 10.05 shall be
delivered to the Trustee at its Corporate Trust Office.
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SECTION 10.06. Calculation of Original Issue Discount. The Issuers
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on Outstanding Securities as of the end of
such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE 11
REDEMPTION OF SECURITIES
SECTION 11.01. Right of Redemption. The Company may not redeem the
Securities prior to __________, 2002. On or after that date, the Company may, at
its option, redeem all or from time to time any part of the Securities on any
date prior to maturity, upon notice as set forth in Section 11.05, and at the
optional Redemption Prices set forth in the form of Security set forth in
Section 2.02, together with accrued interest, if any, to, but excluding, the
Redemption Date.
SECTION 11.02. Applicability of Article. Redemption of Securities at
the election of the Company or otherwise, as permitted or required by any
provision of the Securities or this Indenture, shall be made in accordance with
such provision and this Article 11.
SECTION 11.03. Selection to Redeem; Notice to Trustee. The election of
the Company to redeem any Securities shall be evidenced by a Board Resolution.
In case of any redemption at the election of the Company of less than all of the
Securities, the Company shall, at least 45 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee in writing of such Redemption Date.
SECTION 11.04. Selection by Trustee of Securities to Be Redeemed. If
fewer than all the Securities are to be redeemed, the Trustee shall select, with
written notice to the Company, by lot, pro rata or by another manner as the
Trustee shall deem equitable and fair, the Securities or portions thereof (in
multiples of $1,000 principal amount at maturity) to be redeemed. If any
Security selected for partial redemption is converted in part after such
selection, the converted portion of such Security shall be deemed (so far as may
be) to be the portion to be selected for redemption. The Securities (or portions
thereof) so selected shall be deemed duly selected for redemption for all
purposes hereof,
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notwithstanding that any such Security is converted as a whole or in part before
the mailing of the notice of redemption.
Upon any redemption of less than all the Securities, the Company and
the Trustee may treat as outstanding any Securities surrendered for conversion
during the period of 15 days next preceding the mailing of a notice of
redemption and need not treat as outstanding any Security authenticated and made
available for delivery during such period in exchange for the unconverted
portion of any Security converted in part during such period.
The Trustee shall promptly notify the Company and each Note Registrar
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 the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.05. Notice of Redemption. Notice of redemption shall be
given in the manner provided in Section 1.06 to the Holders of Securities to be
redeemed not less than 20 nor more than 60 days prior to the Redemption Date,
and such notice shall be irrevocable. The Company shall also publish a notice of
such redemption at least once in each of Bloomberg Business News, Dow Xxxxx News
(DJN) and Xxxxxx Financial Report in the City of New York (or if any such
publications are not then published, such other publications in the City of New
York of comparable circulation as may be determined by the Company) at least 20
and not more than 60 days prior to the date fixed for redemption.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
(c) if less than all Outstanding Securities are to be
redeemed, the aggregate principal amount of Securities to be redeemed
and the aggregate principal amount of Securities which will be
outstanding after such partial redemption,
(d) that on the Redemption Date the Redemption Price, and
interest and Original Issue Discount accrued to, but excluding, the
Redemption Date will be paid as specified in said notices, and that on
and after said date interest and Original Issue Discount thereon or on
the portions thereof to be redeemed, will cease to accrue,
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(e) the Conversion Rate then in effect, the date on which the
right to convert the Securities to be redeemed will terminate and the
places where such Securities, may be surrendered for conversion, and
(f) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest
and Original Issue Discount, if any.
In case of a partial redemption, the notice shall specify the serial
and CUSIP numbers (if any) and the portions thereof called for redemption and
that transfers and exchanges may occur on or prior to the Redemption Date.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's written request,
by the Trustee in the name of and at the expense of the Company. Notice of
redemption of Securities to be redeemed at the election of the Company received
by the Trustee shall be given by the Trustee to each Paying Agent in the name of
and at the expense of the Company.
SECTION 11.06. Deposit of Redemption Price. By 10:00 a.m. (New York
time) on any Redemption Date of the Securities, the Issuers shall deposit with
the Trustee or with the Paying Agent so directed by the Trustee (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money (which shall be in immediately
available funds on such Redemption Date) sufficient to pay the Redemption Price
of, and accrued interest on, all the Securities which are to be redeemed on that
date other than any Securities called for redemption on that date which have
been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with a Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security, if a Security, or any Predecessor Security, to receive interest
as provided in the last paragraph of Section 3.07) be paid to the Issuers on
Issuer Request as soon as administratively practicable after the Trustee
receives such Issuer Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 11.07. Securities Payable on Redemption Date. If notice of
redemption has been given as above provided, the Securities or portions of
Securities with respect to which such notice has been given shall, unless
theretofore converted into Common Stock pursuant to the terms hereof, become due
and payable on the date and at the place or places stated in such notices at the
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applicable Redemption Price, together with interest accrued to, but excluding,
the Redemption Date, and on and after said date (unless the Issuers shall
default in the payment of such Securities at the Redemption Price, together with
interest accrued to, but excluding, said date). Original Issue Discount and
interest on the Securities or portions of Securities so called for redemption
shall cease to accrue and such Securities shall cease after the Redemption Date
to be convertible into Common Stock and, except as provided in Sections 6.06 and
10.03, to be entitled to any benefit or security under this Indenture, and the
Holders thereof shall have no right in respect of such Securities except the
right to receive the Redemption Price thereof and unpaid interest to, but
excluding, the Redemption Date. Upon surrender of any Security for redemption in
accordance with said notice, such Security shall be paid by the Issuers at the
Redemption Price together with accrued and unpaid interest to, but excluding,
the Redemption Date; provided, however, that installments of interest shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Record Date according to their
terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price and, to the extent
permitted by applicable law, interest, if any, in respect thereof shall, until
paid, bear interest from the Redemption Date at the rate borne by the Security
(giving effect to accrual of Original Issue Discount) and such Security shall
remain convertible into Common Stock until the Redemption Price shall have been
paid or duly provided for.
SECTION 11.08. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at an office or agency of the Company
designated for that purpose pursuant to Section 10.02 (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 his attorney duly authorized in writing), and the Issuers shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Security 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 unredeemed portion
of the principal of the Security so surrendered.
SECTION 11.09. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities by an agreement with one or more
investment bankers or other purchasers (the "PURCHASERS") to purchase such
securities by paying to the Trustee in trust for the Holders, on or before the
Redemption Date, an amount not less than the applicable Redemption Price,
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together with interest accrued to, but excluding, the Redemption Date, of such
Securities. Notwithstanding anything to the contrary contained in this Article
11, the obligation of the Issuer to pay the Redemption Price, together with
interest accrued to, but excluding, the Redemption Date, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
Purchasers. If such an agreement is entered into (a copy of which shall be filed
with the Trustee 3 days prior to the Redemption Date), any Securities called for
redemption that are not duly surrendered for conversion by the Holders thereof
may, at the option of the Company, be deemed, to the fullest extent permitted by
law, and consistent with any agreement or agreements with such Purchasers, to be
acquired by such Purchasers from such Holders and (notwithstanding anything to
the contrary contained in Article 12) surrendered by such Purchasers for
conversion, all as of immediately prior to the close of business on the
Redemption Date (and the right to convert any such Securities shall be extended
though such time), subject to payment of the above amount as aforesaid. At the
direction of the Company, the Trustee shall hold and dispose of any such amount
paid to it to the Holders in the same manner as it would monies deposited with
it by the Issuers for the redemption of Securities. Without the Trustee's prior
written consent, no arrangement between the Company and such Purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, responsibilities or obligations of the Trustee as set
forth in this Indenture, and the Company agrees to indemnify the Trustee from,
and hold it harmless against, any loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such Purchasers, including the costs and
expenses, including reasonable legal fees, incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
SECTION 11.10. No Sinking Fund. The Securities shall not be entitled to
the benefit of any sinking fund.
ARTICLE 12
CONVERSION OF SECURITIES
SECTION 12.01. Conversion Privilege and Conversion Rate. Subject to and
upon compliance with the provisions of this Article 12, at the option of the
Holder thereof, the Holder of any Security is entitled at his option, at any
time prior to the close of business on __________, 2006, to convert the
principal amount at maturity of any such Security, or any portion of such
principal amount
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at maturity which is $1,000 or a multiple thereof, into that number of fully
paid and nonassessable shares of Common Stock obtained by dividing the principal
amount at maturity of the Security or portion thereof surrendered for conversion
by $1,000 and multiplying the result so obtained by the Conversion Rate in
effect at such time, by surrender of the Security so to be converted in whole or
in part in the manner provided in Section 12.02 at the Conversion Rate,
determined as hereinafter provided, in effect at the time of conversion. Such
conversion right shall be subject, in the case of the conversion of any Global
Security, to any applicable book-entry procedures of the Depositary therefor and
the following sentence. In case a Security or portion thereof is called for
redemption or is delivered for repurchase, such conversion right in respect of
the Security or portion so called shall expire at the close of business on the
Business Day prior to the Redemption Date or the Fundamental Change Redemption
Date (as defined in Article 14), as the case may be, unless the Issuers default
in making the payment due upon redemption or repurchase, as the case may be.
The Conversion Rate shall be as specified in the forms of Security set
forth in Section 2.02, subject to adjustment as provided in this Article 12.
SECTION 12.02. Exercise of Conversion Privilege. Beneficial owners of
interests in a Global Security may exercise their right of conversion by
delivering to the Depositary the appropriate instruction form for conversion
pursuant to the Depositary's conversion program. To convert a definitive
Security into shares of Common Stock, a Holder must (a) complete and manually
sign the conversion notice in the form set forth in Section 2.03 on the back of
the definitive Security (or complete and manually sign a facsimile thereof) and
deliver such notice to the Trustee at the Corporate Trust Office of the Trustee
or the office or agency of State Street Bank and Trust Company of California,
N.A., in New York, New York or the office of any Conversion Agent, (b) surrender
the definitive Security to the Trustee at the Corporate Trust Office of the
Trustee or the office or agency of the State Street Bank and Trust Company of
California, N.A., in New York, New York or the office of any Conversion Agent,
(c) if required, furnish appropriate endorsements and transfer documents, (d) if
required, pay all transfer or similar taxes, and (e) if required, pay funds
equal to interest payable on the next Interest Payment Date. The date on which
all of the foregoing requirements have been satisfied is the date of surrender
for conversion. The Trustee shall promptly deliver to the Company and the
Company's Common Stock transfer agent notification of such notice of conversion
at the address described in Section 1.05.
Each Security surrendered for conversion will be converted into Common
Stock in registered form. Any Security or portion thereof surrendered for
conversion during the period from, but excluding, a record date for any Interest
Payment Date to, but excluding, such Interest Payment Date shall (unless such
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Security or portion thereof being converted shall have been called for
redemption on a Redemption Date which occurs during such period, or is to be
redeemed in connection with a Fundamental Change on a Fundamental Change
Redemption Date which occurs during such period) be accompanied by payment, in
New York Clearing House funds of an amount equal to the interest otherwise
payable on such Interest Payment Date on the principal amount at maturity being
converted; provided, however, that no such payment need be made if there shall
exist at the time of conversion a default in the payment of interest on the
Securities. Except as provided above in this Section, no adjustment shall be
made for Original Issue Discount or interest accrued on any Security converted
or for dividends on any shares issued upon the conversion of such Security as
provided in this Article.
The Company's delivery to the Holder of the number of shares of Common
Stock (and cash in lieu of fractions thereof, as provided in this Indenture)
into which a Security is convertible will be deemed to satisfy the Issuers'
obligation to pay the principal amount at maturity of the Security and the
accrued Original Issue Discount that has not previously been (or is not
simultaneously being) paid. The Common Stock is treated as issued first in
payment of accrued Original Issue Discount and interest, and then in payment of
principal amount at maturity.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion,
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the shares of Common Stock issuable upon conversion shall be
treated for all purposes as the record holder or holders of such Common Stock at
such time. As promptly as practicable on or after the conversion date, the
Company shall issue and deliver to the Trustee, for delivery to the Holder, a
certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 12.03.
In the case of any Security which is converted in part only, upon such
conversion the Issuers shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Issuers, a new Security or
Securities of authorized denominations in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security. A Security may
be converted in part, but only if the principal amount of such Security to be
converted is any integral multiple of U.S.$1,000 and the principal amount of
such security to remain Outstanding after such conversion is equal to U.S.$1,000
or any integral multiple thereof.
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SECTION 12.03. Fractions of Shares. No fractional shares of Common
Stock shall be issued upon conversion of any Securities. If more than one
Security shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock which would otherwise be issuable upon conversion of any Securities
(or specified portions thereof), the Company shall make an adjustment and
payment in respect of such fraction in cash at the current market value thereof,
to be completed at the close of business on the day of conversion.
SECTION 12.04. Adjustment of Conversion Rate. The Conversion Rate shall
be subject to adjustments from time to time as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Rate in effect at the opening of business on the date
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be increased by multiplying
such Conversion Rate by a fraction, the denominator of which shall be the number
of shares of Common Stock outstanding at the close of business on the date fixed
for such determination and the numerator of which shall be the sum of such
number of shares and the total number of shares constituting such dividend or
other distribution, such increase to become effective immediately after the
opening of business on the day following the date fixed for such determination.
If any dividend or distribution of the type described in this Section 12.04(a)
is declared but not so paid or made, the Conversion Rate shall again be adjusted
to the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.
(b) In case the Company shall issue rights or warrants to all holders
of its outstanding Common Stock entitling them (for a period expiring within 45
days after the date fixed for determination of stockholders entitled to receive
such rights or warrants) to subscribe for or purchase Common Stock at a price
per share less than the Current Market Price (as defined in Section
12.04(h)(ii)) on the date fixed for determination of stockholders entitled to
receive such rights or warrants, the Conversion Rate shall be adjusted so that
the same shall equal the price determined by multiplying the Conversion Rate in
effect immediately prior to the date fixed for determination of shareholders
entitled to receive such rights or warrants by a fraction, the denominator of
which shall be the number of shares of Common Stock outstanding at the close of
business on the date fixed for determination of stockholders entitled to receive
such rights and warrants plus the number of shares which the aggregate offering
price of the total number of shares
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so offered would purchase at such Current Market Price, and the numerator of
which shall be the number of shares of Common Stock outstanding on the date
fixed for determination of stockholders entitled to receive such rights and
warrants plus the total number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall be successively made whenever
any such rights and warrants are issued, and shall become effective immediately
after the opening of business on the day following the date fixed for
determination of stockholders entitled to receive such rights or warrants. To
the extent that shares of Common Stock are not delivered after the expiration of
such rights or warrants, the Conversion Rate shall be readjusted to the
Conversion Rate which would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on the basis of delivery of only
the number of shares of Common Stock actually delivered. In the event that such
rights or warrants are not so issued, the Conversion Rate shall again be
adjusted to be the Conversion Rate which would then be in effect if such date
fixed for the determination of stockholders entitled to receive such rights or
warrants had not been fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of such
Common Stock, there shall be taken into account any consideration received by
the Company for such rights or warrants, the value of such consideration, if
other than cash, to be determined by the Board of Directors.
(c) In case outstanding Common Stock shall be subdivided into a
greater number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such combination becomes effective shall
be proportionately reduced.
(d) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock shares of any class of capital stock of the
Company (other than any dividends or distributions to which Section 12.04(a)
applies) or evidences of its indebtedness or assets (including securities, but
excluding any rights or warrants referred to in Section 12.04(b), and excluding
any dividend or distribution (x) paid exclusively in cash or (y) referred to in
Section 12.04(a) (any of the foregoing hereinafter in this Section 12.04(d)
called the "DISTRIBUTION SECURITIES")), then, in each such case, the Conversion
Rate shall be increased so that the same shall be equal to the price determined
by multiplying the Conversion Rate in effect on the Distribution Record Date
with respect to such distribution by a fraction the denominator of which shall
be the Current Market Price per share of
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Common Stock on such Distribution Record Date less the fair market value (as
determined by the Board of Directors whose determination shall be conclusive,
and described in a resolution of the Board of Directors) on the Distribution
Record Date of the portion of the Distribution Securities so distributed
applicable to one share of Common Stock and the numerator of which shall be the
Current Market Price per share of Common Stock, such reduction to become
effective immediately prior to the opening of business on the day following such
Distribution Record Date; provided, however, that in the event the then fair
market value (as so determined) of the portion of the Distribution Securities so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price per share of the Common Stock on the Distribution
Record Date, in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder shall have the right to receive upon conversion the
amount of Distribution Securities such Holder would have received had such
Holder converted each Security on the Distribution Record Date. In the event
that such dividend or distribution is not so paid or made, the Conversion Rate
shall again be adjusted to be the Conversion Rate which would then be in effect
if such dividend or distribution had not been declared. If the Company's Board
of Directors determines the fair market value of any distribution for purposes
of this Section 12.04(d) by reference to the actual or when issued trading
market for any securities, it must in doing so consider the prices in such
market over the same period used in computing the Current Market Price of the
Common Stock.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("TRIGGER EVENT"): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of shares of Common Stock, shall be deemed not to have been
distributed for purposes of this Section 12.04 (and no adjustment to the
Conversion Rate under this Section 12.04 will be required) until the occurrence
of the earliest Trigger Event, whereupon such rights and warrants shall be
deemed to have been distributed and an appropriate adjustment (if any is
required) to the Conversion Rate shall be made under this Section 12.04(d). If
any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to events, upon the
occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of indebtedness or other assets or different
amounts of any of the foregoing, or both, then the date of the occurrence of any
and each such event shall be deemed to be the date of distribution and record
date with respect to new rights or warrants with such rights (and a termination
or expiration of the existing rights or warrants without exercise by any of the
holders thereof). In addition, in the event of any distribution (or
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deemed distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto that was
counted for purposes of calculating a distribution amount for which an
adjustment to the Conversion Rate under this Section 12.04 was made, (1) in the
case of any such rights or warrants which shall all have been redeemed or
repurchased without exercise by any holders thereof, the Conversion Rate shall
be readjusted upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or repurchase price received by
a holder or holders of shares of Common Stock with respect to such rights or
warrants (assuming such holder had retained such rights or warrants), made to
all holders of shares of Common Stock as of the date of such redemption or
repurchase, and (2) in the case of such rights or warrants which shall have
expired or been terminated without exercise by any holders thereof, the
Conversion Rate shall be readjusted as if such rights and warrants had not been
issued.
Notwithstanding the foregoing, in the event that the Company shall
distribute rights or warrants to subscribe for additional shares of the Common
Stock (other than rights or warrants described in Section 12.04(b)), pro rata to
substantially all holders of Common Stock, the Company may, in lieu of making
any adjustment pursuant to this Section 12.04(d), make proper provision so that
each holder of a Security who converts such Security (or any portion thereof)
after the Distribution Record Date for such distribution shall be entitled to
receive upon such conversion, in addition to the shares of Common Stock issuable
upon such conversion (the "CONVERSION SHARES"), a number of rights or warrants
to be determined as follows: (i) if such conversion occurs on or prior to the
date for the distribution to the holders of such rights or warrants of separate
certificates evidencing such rights or warrants (the "DISTRIBUTION DATE"), the
same number of rights or warrants to which a holder of a number of shares of
Common Stock equal to the number of Conversion Shares is entitled at the time of
such conversion in accordance with the terms and provisions of and applicable to
such rights or warrants; and (ii) if such conversion occurs after the
Distribution Date, the same number of rights or warrants to which a holder of
the number of shares of Common Stock into which the principal amount of the
Security so converted was convertible immediately prior to the Distribution Date
would have been entitled on the Distribution Date in accordance with the terms
and provisions of, and applicable to such rights or warrants.
For purposes of this Section 12.04(d) and Sections 12.04(a) and (b),
any dividend or distribution to which this Section 12.04(d) is applicable that
also includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
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capital stock other than such shares of Common Stock or rights or warrants (and
any Conversion Rate increase required by this Section 12.04(d) with respect to
such dividend or distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such rights or
warrants (and any further Conversion Rate increase required by Sections 12.04(a)
and (b) with respect to such dividend or distribution shall then be made),
except (A) the Distribution Record Date of such dividend or distribution shall
be substituted as "the date fixed for the determination of shareholders entitled
to receive such dividend or other distribution" and "the date fixed for such
determination" within the meaning of Sections 12.04(a) and (b) and (B) any
shares of Common Stock included in such dividend or distribution shall not be
deemed "outstanding at the close of business on the date fixed for such
determination" within the meaning of Section 12.04(a).
Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 12 shall be entitled to receive the appropriate number
of Rights, if any, and the certificates representing the Common Stock issued
upon such conversion shall bear such legends, if any, in each case as provided
by and subject to their terms of the Rights Agreement as in effect at the time
of such conversion. If the Rights are separated from the Common Stock in
accordance with the provisions of the Rights Agreement such that the Holders of
Securities would thereafter not be entitled to receive any such Rights in
respect to the Common Stock issuable upon conversion of such Securities, the
Conversion Rate will be adjusted as provided in this Section 12.04(d) on the
separation date; provided that if such Rights expire, terminate or are redeemed
by the Company, the Conversion Rate shall again be adjusted to be the Conversion
Rate which would then be in effect if such separation had not occurred. In lieu
of any such adjustment, the Company may amend the 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 shares of Common Stock if the Rights had not become separated
from the Common Stock pursuant to the provisions of the Rights Agreement.
(e) In case the Company shall, by dividend or otherwise, distribute to
all holders of its Common Stock cash (excluding (x) any quarterly cash dividend
on the Common Stock to the extent that the aggregate cash dividend per share of
Common Stock in any quarterly period does not exceed the greater of (A) the
amount per share of Common Stock of the next preceding quarterly cash dividend
on the Common Stock to the extent that such preceding quarterly dividend did not
require any adjustment of the Conversion Rate pursuant to this Section 12.04(e)
(as adjusted to reflect subdivisions or combinations of the Common Stock), and
(B) 3.75% of the arithmetic average of the Closing Prices (determined as set
forth in Section 12.04(h)) during the ten Trading Days immediately prior to the
date of
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declaration of such dividend, (y) any dividend or distribution in connection
with the liquidation, dissolution or winding up of the Company, whether
voluntary or involuntary and (z) any cash that is distributed as part of a
distribution requiring a Conversion Rate adjustment pursuant to Section
12.04(d)), then, in such case, the Conversion Rate shall be increased so that
the same shall equal the price determined by multiplying the Conversion Rate in
effect immediately prior to the close of business on such Distribution Record
Date by a fraction of which the denominator shall be the Current Market Price of
the Common Stock on the Distribution Record Date less the amount of cash so
distributed (and not excluded as provided above) applicable to one share of
Common Stock and the numerator shall be such Current Market Price of the Common
Stock, such increase to be effective immediately prior to the opening of
business on the day following the Distribution Record Date; provided, however,
that in the event the portion of the cash so distributed applicable to one share
of Common Stock is equal to or greater than the Current Market Price of the
Common Stock on the Distribution Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion the amount of cash such Holder would have
received had such Holder converted each Security on the Distribution Record
Date. In the event that such dividend or distribution is not so paid or made,
the Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if such dividend or distribution had not been declared.
If any adjustment is required to be made as set forth in this Section 12.04(e)
as a result of a distribution that is a quarterly dividend, such adjustment
shall be based upon the amount by which such distribution exceeds the amount of
the quarterly cash dividend permitted to be excluded pursuant hereto. If an
adjustment is required to be made as set forth in this Section 12.04(e) above as
a result of a distribution that is not a quarterly dividend, such adjustment
shall be based upon the full amount of the distribution.
(f) In case a tender or exchange offer made by the Company or any
subsidiary of the Company for all or any portion of the Common Stock shall
expire and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to stockholders of consideration per share of
Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution) that as of the last time (the "EXPIRATION TIME") tenders or
exchanges may be made pursuant to such tender or exchange offer (as it may be
amended) exceeds the Current Market Price of the Common Stock on the Trading Day
next succeeding the Expiration Time, the Conversion Rate shall be increased so
that the same shall equal the price determined by multiplying the Conversion
Rate in effect immediately prior to the Expiration Time by a fraction of which
the denominator shall be the number of Common Stock outstanding (including any
tendered or exchanged shares) on the Expiration Time multiplied by the Current
Market Price
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of the Common Stock on the Trading Day next succeeding the Expiration Time and
the numerator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "PURCHASED SHARES") and (y) the product of the number of
Common Stock outstanding (less any Purchased Shares) on the Expiration Time and
the Current Market Price of the Common Stock on the Trading Day next succeeding
the Expiration Time, such reduction to become effective immediately prior to the
opening of business on the day following the Expiration Time. In the event that
the Company is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company is permanently prevented by applicable law from
effecting any such purchases or all such purchases are rescinded, the Conversion
Rate shall again be adjusted to be the Conversion Rate which would then be in
effect if such tender or exchange offer had not been made.
(g) In case of a tender or exchange offer made by a Person other than
the Company or any Subsidiary of the Company for an amount which increases the
offeror's ownership of Common Stock to more than 25% of the Common Stock
outstanding and shall involve the payment by such Person of consideration per
share of Common Stock having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
resolution of the Board) at the last time (the "TENDER EXPIRATION TIME") tenders
or exchanges may be made pursuant to such tender or exchange offer (as it shall
have been amended) that exceeds the Current Market Price per share of the Common
Stock on the Trading Day next succeeding the Tender Expiration Time, and in
which, as of the Tender Expiration Time the Board of Directors is not
recommending rejection of the offer, the Conversion Rate shall be increased so
that the same shall equal the price determined by multiplying the Conversion
Rate in effect immediately prior to the Tender Expiration Time by a fraction of
which the denominator shall be the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) on the Tender Expiration Time
multiplied by the Current Market Price of the Common Stock on the Trading Day
next succeeding the Tender Expiration Time and the numerator shall be the sum of
(x) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares validly
tendered or exchanged and not withdrawn as of the Tender Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the
"ACCEPTED PURCHASED SHARES") and (y) the product of the number of shares of
Common Stock outstanding (less any Accepted Purchased Shares) on the Tender
Expiration Time and the Current Market Price of the Common Stock
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on the Trading Day next succeeding the Tender Expiration Time, such reduction to
become effective immediately prior to the opening of business on the day
following the Tender Expiration Time. In the event that such Person is obligated
to purchase shares pursuant to any such tender or exchange offer, but such
Person is permanently prevented by applicable law from effecting any such
purchases or all such purchases are rescinded, the Conversion Rate shall again
be adjusted to be the Conversion Rate which would then be in effect if such
tender or exchange offer had not been made. Notwithstanding the foregoing, the
adjustment described in this Section 12.04(g) shall not be made if, as of the
Tender Expiration Time, the offering documents with respect to such offer
disclose a plan or intention to cause the Company to engage in any transaction
described in Article 7.
(h) For purposes of this Section 12.04, the following terms shall have
the meaning indicated:
(i) "CLOSING PRICE" with respect to any securities on any day
shall mean the closing sale price regular way on such day or, in case
no such sale takes place on such day, the average of the reported
closing bid and asked prices, regular way, in each case on the New York
Stock Exchange, or, if such security is not listed or admitted to
trading on such Exchange, on the principal security exchange or
quotation system in the United States on which such security is quoted
or listed or admitted to trading, or, the average of the closing bid
and asked prices of such security on the over-the-counter market on the
day in question as reported by the Nasdaq National Market or a similar
generally accepted reporting service, or if not so available, in such
manner as furnished by any New York Stock Exchange member firm selected
from time to time by the Board of Directors for that purpose, or a
price determined in good faith by the Board of Directors or, to the
extent permitted by applicable law, a duly authorized committee
thereof, whose determination shall be conclusive.
(ii) "CURRENT MARKET PRICE" shall mean the average of the
daily Closing Prices per share of Common Stock for the ten consecutive
Trading Days immediately prior to the date in question; provided,
however, that (A) if the "ex" date (as hereinafter defined) for any
event (other than the issuance or distribution or Fundamental Change
requiring such computation) that requires an adjustment to the
Conversion Rate pursuant to Section 12.04(a), (b), (c), (d), (e), (f)
or (g) occurs during such ten consecutive Trading Days, the Closing
Price for each Trading Day prior to the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by the reciprocal
of the fraction by which the Conversion Rate is so required to be
adjusted as a result of such other event, (B) if the "ex" date for any
event (other than the issuance, distribution or
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Fundamental Change requiring such computation) that requires an
adjustment to the Conversion Rate pursuant to Section 12.04(a), (b),
(c), (d), (e), (f) or (g) occurs on or after the "ex" date for the
issuance or distribution requiring such computation and prior to the
day in question, the Closing Price for each Trading Day on and after
the "ex" date for such other event shall be adjusted by multiplying
such Closing Price by the same fraction by which the Conversion Rate is
so required to be adjusted as a result of such other event, and (C) if
the "ex" date for the issuance, distribution or Fundamental Change
requiring such computation is prior to the day in question, after
taking into account any adjustment required pursuant to clause (A) or
(B) of this proviso, the Closing Price for each Trading Day on or after
such "ex" date shall be adjusted by adding thereto the amount of any
cash and the fair market value (as determined by the Board of Directors
in a manner consistent with any determination of such value for
purposes of Section 12.04(d), (f) or (g) whose determination shall be
conclusive and described in a resolution of the Board of Directors) of
the evidences of indebtedness, shares of capital stock or assets being
distributed applicable to one share of Common Stock as of the close of
business on the day before such "ex" date. For purposes of any
computation under Section 12.04(f) or (g), the Current Market Price of
the Common Stock on any date shall be deemed to be the average of the
daily Closing Prices per share of Common Stock for such day and the
next two succeeding Trading Days; provided, however, that if the "ex"
date for any event (other than the tender or exchange offer requiring
such computation) that requires an adjustment to the Conversion Rate
pursuant to Section 12.04(a), (b), (c), (d), (e), (f) or (g) occurs on
or after the Expiration Time or Tender Expiration Time, as the case may
be, for the tender or exchange offer requiring such computation and
prior to the day in question, the Closing Price for each Trading Day on
and after the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the same fraction by which the
Conversion Rate is so required to be adjusted as a result of such other
event. For purposes of this paragraph, the term "EX" date, (1) when
used with respect to any issuance or distribution, means the first date
on which the Common Stock trades regular way on the relevant exchange
or in the relevant market from which the Closing Price was obtained
without the right to receive such issuance or distribution, (2) when
used with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades regular
way on such exchange or in such market after the time at which such
subdivision or combination becomes effective, and (3) when used with
respect to any tender or exchange offer means the first date on which
the Common Stock trades regular way on such exchange or
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in such market after the Expiration Time or Tender Expiration Time, as
the case may be, of such offer.
(iii) "FAIR MARKET VALUE" shall mean the amount which a
willing buyer would pay a willing seller in an arm's length
transaction.
(iv) "DISTRIBUTION RECORD DATE" shall mean, with respect to
any dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash, securities
or other property or in which the Common Stock (or other applicable
security) is exchanged for or converted into any combination of cash,
securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(v) "TRADING DAY" shall mean (x) if the applicable security is
listed or admitted for trading on the New York Stock Exchange or
another national security exchange, a day on which the New York Stock
Exchange or another national security exchange is open for business or
(y) if the applicable security is quoted on the Nasdaq National Market,
a day on which trades may be made on thereon or (z) if the applicable
security is not so listed, admitted for trading or quoted, any day
other than a Saturday or Sunday or a day on which banking institutions
in the State of New York are authorized or obligated by law or
executive order to close.
(i) No adjustment in the Conversion Rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(i)) would require an increase or decrease of at least one percent in such rate;
provided, however, that any adjustments which by reason of this paragraph (i)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article shall be made to
the nearest cent or to the nearest one-hundredth of a share, as the case may be.
(j) The Company may, at its option, make such increases in the
Conversion Rate as the Board deems advisable, in addition to those required by
paragraphs (a), (b), (c), (d), (e), (f) or (g) of this Section 12.04 in order to
avoid or diminish any income tax to any holders of Common Stock or rights to
purchase Common Stock resulting from any dividend or distribution on Common
Stock (or rights to acquire such shares) or from any event treated as such for
income tax purposes, resulting from any dividend or distribution of shares or
issuance of rights or warrants to purchase or subscribe for shares or from any
event treated as such for income tax purposes.
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To the extent permitted by applicable law, the Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the period is (i) at least twenty (20) days, (ii) the increase is irrevocable
during the period and (iii) the Board shall have made a determination that such
increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall give notice of the increase to the Holders
of Securities in the manner provided in Section 1.06 at least fifteen (15) days
prior to the date the increased Conversion Rate takes effect, and such notice
shall state the increased Conversion Rate and the period during which it will be
in effect.
(k) No adjustment of the Conversion Rate will result in zero or a
negative number.
SECTION 12.05. Notice of Adjustments of Conversion Rate. Whenever the
Conversion Rate is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Rate in
accordance with Section 12.04 and shall prepare a certificate signed by
the President, Treasurer, Chief Financial Officer or Vice President of
Finance of the Company setting forth the adjusted Conversion Rate and
showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall promptly be filed with the Trustee
and with each Conversion Agent; and
(b) a notice stating that the Conversion Rate has been
adjusted and setting forth the adjusted Conversion Rate shall promptly
be prepared and as soon as practicable thereafter, such notice shall be
provided by the Company to all Holders in accordance with Section 1.06.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours. Unless and until the Trustee shall receive such certificate, it may
assume without inquiry that the Conversion Rate has not been adjusted.
SECTION 12.06. Notice of Certain Corporate Action. In case:
(a) the Company shall declare a dividend (or any other
distribution) on all or substantially all of its Common Stock payable
(i) otherwise than exclusively in cash or (ii) exclusively in cash in
an amount that would require any adjustment pursuant to Section 12.04;
or
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(b) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights that would require any adjustment pursuant to Section 12.04; or
(c) of any reclassification of the Common Stock of the Company
(other than a subdivision or combination of its outstanding Common
Stock), or of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the
assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(e) the Company or any Subsidiary of the Company shall
commence a tender offer for all or a portion of the Company's
outstanding Common Stock (or shall amend any such tender offer);
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 10.02, and shall
cause to be provided to all Holders in accordance with Section 1.06, at least 20
days (or 10 days in any case specified in clause (a) or (b) above) prior to the
applicable record, expiration or effective date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution, rights, options or warrants, or, if a record is not to
be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, (y) the date on which the right to make tenders under such tender
offer expires or (z) the date on which such reclassification, consolidation,
merger, share exchange, conveyance, transfer, sale, dissolution, liquidation or
winding up is expected to become effective, and the date as of which it is
expected that holders of shares of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, share exchange,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up. If at
the time the Trustee shall not be the Conversion Agent, a copy of such notice
and any notice referred to in the following paragraph shall also forthwith be
filed by the Company with the Trustee.
The preceding paragraph to the contrary notwithstanding, the Company
shall cause to be filed at each office or agency maintained for the purpose of
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conversion of Securities pursuant to Section 10.02, and shall cause to be
provided to all Holders in accordance with Section 1.06, notice of any tender
offer by the Company or any subsidiary of the Company for all or any portion of
the Common Stock at or about the time that such notice of tender offer is
provided to the public generally (such notice to be sent to all Holders within
five days after receipt of such notice by the Trustee or Conversion Agent from
the Company).
SECTION 12.07. Company to Provide Common Stock. The Company shall
ensure that the Company has, free from preemptive rights, out of its authorized
but unissued Common Stock, the full number of shares of Common Stock for the
purpose of effecting the conversion of Securities.
SECTION 12.08. Taxes on Conversions. The Company will pay any and all
taxes and duties that may be payable in respect of the issue or delivery of
Common Stock on conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any tax or duty which may be payable in respect of
any transfer involved in the issue and delivery of Common Stock in a name other
than that of the Holder of the Security or Securities to be converted, and no
such issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of any such tax or duty, or has
established to the satisfaction of the Company that such tax or duty has been
paid.
SECTION 12.09. Company Covenant as to Common Stock. The Company
covenants that all Common Stock which may be delivered upon conversion of
Securities, upon such delivery, will have been duly authorized and validly
issued and will be fully paid and nonassessable and, except as provided in
Section 12.08, the Company will pay all taxes, liens and charges with respect to
the issue thereof.
SECTION 12.10. Cancellation of Converted Securities. All Securities
delivered for conversion shall be delivered to the Trustee or its agent to be
canceled by or at the direction of the Trustee, which shall dispose of the same
as provided in Section 3.09.
SECTION 12.11. Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur, namely (a) any reclassification or
change of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 12.04(c) applies), (b) any consolidation, merger or
combination of the Company with another corporation as a result of which holders
of Common Stock shall be entitled to receive stock, securities or other property
or assets (including cash) with respect to or in exchange for such Common Stock,
or (c) any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or other
property or
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assets (including cash) with respect to or in exchange for such Common Stock,
then the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the Trust Indenture Act as in force at the date of execution of such
supplemental indenture) providing that such Security shall be convertible into
the kind and amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance by a holder of a number
of shares of Common Stock issuable upon conversion of such Securities (assuming,
for such purposes, a sufficient number of authorized shares of Common Stock
available to convert all such Securities) immediately prior to such
reclassification, change, consolidation, merger, combination, sale or conveyance
assuming such holder of Common Stock is (i) not a Person with which the Company
consolidated or into which the Company merged or which merged into the Company
or to which such sale or transfer was made, as the case may be (a "CONSTITUENT
PERSON"), or an Affiliate of a Constituent Person, and (ii) failed to exercise
his rights of election, if any, as to the kind or amount of securities, cash or
other property receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance (provided that, if the kind or amount of
securities, cash or other property receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance is not the same
for each share of Common Stock in respect of which such rights of election shall
not have been exercised ("NON-ELECTING SHARE")), then for the purposes of this
Section 12.11 the kind and amount of securities, cash or other property
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance for each Non-electing Share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
non-electing shares. Such supplemental indenture shall provide for adjustments
which, for events subsequent to the effective date of such supplemental
indenture, shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Article. The above provisions of this Section
12.11 shall similarly apply to successive reclassifications, changes,
consolidations, mergers, combinations, sales or conveyances. Notice of the
execution of such a supplemental indenture shall be given by the Company to the
Holder of each Security as provided in Section 1.06 promptly upon such
execution.
Neither the Trustee, any Paying Agent nor any Conversion Agent shall be
under any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the kind or
amount of shares of stock or other securities or property or cash receivable by
Holders of Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, combination, sale or conveyance
or to any such adjustment, but may accept as conclusive evidence of the
correctness of any such
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provisions, and shall be protected in relying upon, an Opinion of Counsel with
respect thereto, which the Company shall cause to be furnished to the Trustee.
SECTION 12.12. Responsibility of Trustee for Conversion Provisions. The
Trustee and any Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same, or whether a supplemental indenture need be entered into.
Neither the Trustee nor any Conversion Agent shall be accountable with respect
to the validity or value (or the kind or amount) of any Common Stock, or of any
other securities or property or cash, which may at any time be issued or
delivered upon the conversion of any Security; and it or they do not make any
representation with respect thereto. Neither the Trustee, subject to the
provisions of Section 6.01, nor any Conversion Agent shall be responsible for
any failure of the Company to make or calculate any cash payment or to issue,
transfer or deliver any Common Stock or share certificates or other securities
or property or cash upon the surrender of any Security for the purpose of
conversion; and the Trustee and any Conversion Agent shall not be responsible
for any failure of the Company to comply with any of the covenants of the
Company contained in this Article.
ARTICLE 13
SUBORDINATION OF SECURITIES
SECTION 13.01. Agreement of Subordination. The Issuers covenant and
agree, and each Holder of Securities issued hereunder by his acceptance thereof
likewise covenants and agrees, that all Securities shall be issued subject to
the provisions of this Article 13; and each Person holding any Security, whether
upon original issue or upon transfer, assignment or exchange thereof, accepts
and agrees to be bound by such provisions.
The payment of the principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price or Fundamental Change Redemption
Price, if any, and interest, if any, in respect of all Securities (including,
but not limited to, the Redemption Price with respect to the Securities called
for redemption in accordance with Article 11, or the Fundamental Change
Redemption Price with respect to Securities submitted for repurchase in
accordance with Article 14, as the case may be, as provided in this Indenture)
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issued hereunder shall, to the extent and in the manner hereinafter set forth,
be subordinated and subject in right of payment to the prior payment in full in
cash of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
Notwithstanding any provision of this Article 13, the Securities shall
rank pari passu with the 1997 Securities. In addition, no provision of this
Article 13 shall prevent the occurrence of any default or Event of Default
hereunder.
SECTION 13.02. Payments to Holders. No payment shall be made with
respect to the principal amount at maturity, Issue Price, accrued Original Issue
Discount, Redemption Price, Fundamental Change Redemption Price, or interest, if
any, in respect of, the Securities by or on behalf of an Issuer (including, but
not limited to, the Redemption Price with respect to the Securities to be called
for redemption in accordance with Article 11 or the Fundamental Change
Redemption Price with respect to Securities submitted for repurchase in
accordance with Article 14, as the case may be, as provided in this Indenture),
except payments and distributions made by the Trustee as permitted by the first
or second paragraph of Section 13.05, if:
(a) a default in the payment of principal, premium, interest,
rent or other obligations due on any Company Senior Indebtedness or
Co-Obligor Senior Indebtedness, as the case may be, has occurred and is
continuing (or, in the case of Company Senior Indebtedness or
Co-Obligor Senior Indebtedness, as the case may be, for which there is
a period of grace, in the event of such a default that continues beyond
the period of grace, if any, specified in the instrument or lease
evidencing such Senior Indebtedness), unless and until such default
shall have been cured or waived or shall have ceased to exist; or
(b) default (other than a payment default) on Designated
Senior Indebtedness of such Issuer occurs and is continuing that then
permits holders of such Designated Senior Indebtedness to accelerate
its maturity and the Trustee receives a notice of the default (a
"PAYMENT BLOCKAGE NOTICE") from the Company or the Co-Obligor, as the
case may be, or a Representative of Designated Senior Indebtedness of
such Issuer or a holder of Designated Senior Indebtedness of such
Issuer.
If the Trustee receives any Payment Blockage Notice pursuant to clause
(b) above, no subsequent Payment Blockage Notice shall be effective for purposes
of this Section unless and until at least 365 days shall have elapsed since the
initial effectiveness of the immediately prior Payment Blockage Notice. No
nonpayment default that existed or was continuing on the date of delivery of any
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Payment Blockage Notice to the Trustee (unless such default was waived, cured or
otherwise ceased to exist and thereafter subsequently reoccurred) shall be, or
be made, the basis for a subsequent Payment Blockage Notice.
An Issuer may and shall resume payments on and distributions in respect
of the Securities upon the earlier of:
(i) in the case of a payment default, the date upon
which the default is cured or waived or ceases to exist, or
(ii) in the case of a default referred to in clause
(b) above, the earlier of the date on which such default is
cured or waived or ceases to exist or 179 days after the date
on which the applicable Payment Blockage Notice is received by
the Trustee if the maturity of the applicable Designated
Senior Indebtedness has not been accelerated and no Payment
Default with respect to any such Designated Senior
Indebtedness has occurred which has not been cured or waived
(in which case clause (i) shall instead be applicable),
unless this Article 13 otherwise prohibits the payment or distribution at the
time of such payment or distribution (including without limitation, in the case
of default referred to in clause (b) above, as a result of a payment default
with respect to the applicable Senior Indebtedness as a consequence of the
acceleration of the maturity thereof or otherwise).
Upon any payment by an Issuer, or distribution of assets of such Issuer
of any kind or character, whether in cash, property or securities, to creditors
upon any dissolution or winding-up or liquidation or reorganization of such
Issuer, whether voluntary or involuntary or in bankruptcy, moratorium of
payments, insolvency, receivership or other proceedings, all amounts due or to
become due upon all Co-Obligor Senior Indebtedness or Company Senior
Indebtedness, as the case may be, shall first be paid in full in cash or other
payment satisfactory to the holders of such Senior Indebtedness, or payment
thereof in accordance with its terms provided for in cash or other payment
satisfactory to the holders of such Senior Indebtedness before any payment is
made on account of the principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price,
or interest, if any, in respect of the Securities (except payments by the
Issuers made pursuant to Article 4 from monies deposited with the Trustee
pursuant thereto prior to commencement of proceedings for such dissolution,
winding-up, liquidation or reorganization); and upon any such dissolution or
winding-up or liquidation or reorganization of an Issuer or bankruptcy,
insolvency, receivership or other proceeding, any payment
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by an Issuer, or distribution of assets of an Issuer of any kind or character,
whether in cash, property or securities, to which the Holders or the Trustee
would be entitled, except for the provision of this Article 13, shall (except as
aforesaid) be paid by such Issuer or by any receiver, trustee in bankruptcy,
moratorium of payments, liquidating trustee, agent or other Person making such
payment or distribution, or by the Holders or by the Trustee under this
Indenture if received by them or it, directly to the holders of Company Senior
Indebtedness or Co-Obligor Senior Indebtedness, as the case may be, (pro rata to
such holders on the basis of the respective amounts of such Senior Indebtedness
held by such holders, or as otherwise required by law or a court order) or their
Representative or Representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any such Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay all such Senior Indebtedness in full, in cash or
other payment satisfactory to the holders of such Senior Indebtedness, after
giving effect to any concurrent payment or distribution to or for the holders of
such Senior Indebtedness, before any payment or distribution is made to the
Holders or to the Trustee.
For purposes of this Article 13, the words, "cash, property or
securities" shall not be deemed to include a payment or distribution of stock of
an Issuer as reorganized or readjusted, or securities of an Issuer or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this Article
13 with respect to the Securities to the payment of all Company Senior
Indebtedness or Co-Obligor Senior Indebtedness, as the case may be, which may at
the time be outstanding; provided that (i) such Senior Indebtedness is assumed
by the new corporation, if any, resulting from any reorganization or
readjustment, and (ii) the rights of the holders of such Senior Indebtedness
(other than leases which are not assumed by the Issuer or the new corporation,
as the case may be) are not, without the consent of such holders, altered by
such reorganization or readjustment. The merger of an Issuer into another
corporation or the liquidation or dissolution of an Issuer following the
conveyance or transfer of its property as an entirety, or substantially as an
entirety, to another corporation upon the terms and conditions provided for in
Article 7 shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 13.02 if such other corporation
shall, as a part of such merger, conveyance or transfer, comply with the
conditions stated in Article 7.
In the event of the acceleration of the Securities because of an Event
of Default, no payment or distribution shall be made to the Trustee or any
Holder of Securities in respect of the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price, or interest, if any, in respect of, the Securities by an
Issuer (including, but
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not limited to, the Redemption Price with respect to the Securities called for
redemption in accordance with Article 11 or the Fundamental Change Redemption
Price with respect to Securities submitted for repurchase in accordance with
Article 14, as the case may be, as provided in this Indenture), except payments
and distributions made by the Trustee as permitted by the first or second
paragraph of Section 13.05, until all Company Senior Indebtedness or Co-Obligor
Senior Indebtedness as the case may be, has been paid in full in cash or other
payment satisfactory to the holders of such Senior Indebtedness or such
acceleration is rescinded in accordance with the terms of this Indenture. If
payment of the Securities is accelerated because of an Event of Default, the
Issuers shall promptly notify holders of their Senior Indebtedness of the
acceleration.
In the event that, notwithstanding the foregoing provisions, any
payment or distribution of assets of an Issuer of any kind or character, whether
in cash, property or securities (including, without limitation, by way of setoff
or otherwise), prohibited by the foregoing, shall be received by the Trustee or
the Holders of the Securities before all of the Company Senior Indebtedness or
Co-Obligor Senior Indebtedness as the case may be, is paid in full in cash or
other payment satisfactory to the holders of such Senior Indebtedness, or
provision is made for such payment thereof in accordance with its terms in cash
or other payment satisfactory to the holders of their Senior Indebtedness, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of Senior Indebtedness or their
Representative or Representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any such Senior
Indebtedness may have been issued, as their respective interests may appear, as
calculated by the Issuers, for application to the payment of all such Senior
Indebtedness remaining unpaid to the extent necessary to pay all such Senior
Indebtedness in full in cash or other payment satisfactory to the holders of
such Senior Indebtedness, after giving effect to any concurrent payment or
distribution, or provision therefor, to or for the holders of such Senior
Indebtedness.
Nothing in this Article 13 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.07. This Section 13.02 shall be
subject to the further provisions of Section 13.05.
SECTION 13.03. Subrogation of Securities. Subject to the payment in
full in cash of all Senior Indebtedness, the Holders of the Securities shall be
subrogated to the extent of the payments or distributions made to the holders of
such Senior Indebtedness pursuant to the provisions of this Article 13 (equally
and ratably with the holders of all indebtedness of the Issuers which by its
express terms is subordinated to other indebtedness of the Issuers to
substantially the same
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extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities applicable to the
Senior Indebtedness until the principal amount at maturity, Issue Price, accrued
Original Issue Discount, Redemption Price, Fundamental Change Redemption Price,
and interest, if any, in respect of the Securities shall be paid in full; and,
for the purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which
the Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article 13, and no payment over pursuant to the provisions of
this Article 13, to or for the benefit of the holders of Company Senior
Indebtedness or the Co-Obligor Senior Indebtedness, as the case may be, by
Holders of the Securities or the Trustee, shall, as between the relevant Issuer,
its creditors other than holders of such Senior Indebtedness, and the Holders of
the Securities, be deemed to be a payment by the relevant Issuer to or on
account of the Company Senior Indebtedness or the Co-Obligor Senior
Indebtedness, as the case may be. It is understood that the provisions of this
Article 13 are and are intended solely for the purposes of defining the relative
rights of the Holders of the Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
Nothing contained in this Article 13 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Issuers, their
creditors other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Issuers, which is absolute and unconditional,
to pay to the Holders of the Securities the principal amount at maturity, Issue
Price, accrued Original Issue Discount, Redemption Price, Fundamental Change
Redemption Price and interest, if any, in respect of the Securities as and when
the same shall become due and payable in accordance with their terms, or is
intended to or shall affect the relative rights of the Holders of the Securities
and creditors of the Issuers other than the holders of the Senior Indebtedness,
nor shall anything herein or therein prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
13 of the holders of Senior Indebtedness in respect of cash, property or
securities received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Issuers referred to
in this Article 13, the Trustee, subject to the provisions of Section 6.01, and
the Holders of the Securities shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of
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the Securities, for the purpose of ascertaining the Persons entitled to
participate in such distribution, the holders of the Senior Indebtedness of the
Issuers and other Indebtedness of the Issuers, the amount thereof or payable
thereon and all other facts pertinent thereto or to this Article 13.
SECTION 13.04. Authorization to Effect Subordination. Each Holder of a
Security by the Holder's acceptance thereof authorizes and directs the Trustee
on the Holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 13 and appoints the
Trustee to act as the Holder's attorney-in-fact for any and all such purposes.
If the Trustee does not file a proper proof of claim or proof of debt in the
form required in any proceeding referred to in Section 5.04 hereof at least 30
days before the expiration of the time to file such claim, the holders of any
Senior Indebtedness or their Representatives are hereby authorized to file an
appropriate claim for and on behalf of the Holders of the Securities.
SECTION 13.05. Notice to Trustee. The relevant Issuer shall give prompt
written notice in the form of an Officers' Certificate to a Responsible Officer
of the Trustee and to any Paying Agent of any fact known to such Issuer which
would prohibit the making of any payment of monies deposited by such Issuer to
or by the Trustee or any Paying Agent in respect of the Securities pursuant to
the provisions of this Article 13. Notwithstanding the provisions of this
Article 13 or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies deposited by an Issuer to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article 13, unless
and until a Responsible Officer of the Trustee shall have received written
notice thereof at the Corporate Trust Office from the relevant Issuer (in the
form of an Officers' Certificate) or a Representative of Senior Indebtedness or
of a holder or holders of Senior Indebtedness or from any trustee thereof; and
before the receipt of any such written notice, the Trustee shall be entitled in
all respects to assume that no such facts exist; provided that if on a date not
fewer than two Business Days prior to the date upon which by the terms hereof
any such monies may become payable for any purpose (including, without
limitation, the payment of the principal amount, Issue Price, accrued Original
Issue Discount, Redemption Price, Fundamental Change Redemption Price, or
interest, if any, in respect of any Security) the Trustee shall not have
received, with respect to such monies, the notice provided for in this Section
13.05, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such monies deposited by
an Issuer and to apply the same to the purpose for which they were received, and
shall not be affected by any notice to the contrary which may be received by it
on or after such prior date.
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Notwithstanding anything in this Article 13 to the contrary, nothing
shall prevent any payment by the Trustee to the Holders of monies deposited with
it pursuant to Section 4.01, and any such payment shall not be subject to the
provisions of Section 13.01 or 13.02.
The Trustee shall be entitled to rely on the delivery to it of a
written notice by a Representative or a Person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a Representative or a holder of
Senior Indebtedness or a trustee on behalf of any such holder or holders. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article 13, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article 13, and if such evidence is not furnished the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 13.06. Trustee's Relation to Senior Indebtedness of the
Issuers. The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article 13 in respect of any Senior Indebtedness at any
time held by it, to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article 13, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to Holders of Securities, the Issuers or any other Person money or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article 13 or otherwise.
SECTION 13.07. No Impairment of Subordination. No right of any present
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the Issuers or by any act or failure to act, in
good faith, by any such holder, or by any noncompliance by the Issuers with the
terms, provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or otherwise be charged with.
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SECTION 13.08. Article Applicable to Paying Agents. If at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article shall
(unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that the first paragraph of Section
13.05 shall not apply to either of the Issuers or any Affiliate of the Issuers
if either Issuer or such Affiliate acts as Paying Agent.
SECTION 13.09. Senior Indebtedness Entitled to Rely. The holders of
Senior Indebtedness (including, without limitation, Designated Senior
Indebtedness) shall have the right to rely upon this Article 13, and no
amendment or modification of the provisions contained herein shall diminish the
rights of such holders unless such holders shall have agreed in writing thereto.
SECTION 13.10. Certain Conversions Deemed Payment. For the purposes of
this Article 13 only, (1) the issuance and delivery of junior securities upon
conversion of Securities in accordance with Article 12 shall not be deemed to
constitute a payment or distribution on account of the principal amount at
maturity, Issue Price, accrued Original Issue Discount, Redemption Price,
Fundamental Change Redemption Price or interest, if any, in respect of
Securities or on account of the purchase or other acquisition of Securities, and
(2) the payment, issuance or delivery of cash (except in satisfaction of
fractional shares pursuant to Section 12.02), property or securities (other than
junior securities) upon conversion of a Security shall be deemed to constitute
payment on account of the principal of such Security. For the purposes of this
Section 13.10, the term "junior securities" means (a) shares of any stock of any
class of the Company (including, without limitation, the Common Stock), or (b)
securities of the Company or the Co-Obligor which are subordinated in right of
payment to all Company Senior Indebtedness or Co-Obligor Senior Indebtedness, as
the case may be, which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Securities are so subordinated as provided in this Article. Nothing
contained in this Article 13 or elsewhere in this Indenture or in the Securities
is intended to or shall impair, as among the Issuers, their creditors other than
holders of Senior Indebtedness and the Holders, the right, which is absolute and
unconditional, of the Holder of any Security to convert such Security in
accordance with Article 12.
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ARTICLE 14
REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDERS UPON A
FUNDAMENTAL CHANGE
SECTION 14.01. Right to Require Repurchase. In the event that a
Fundamental Change shall occur at any time prior to __________, 2006, then each
Holder shall have the right, at the Holder's option, to require the Issuers to
repurchase, and upon the exercise of such right the Issuers shall repurchase,
all of such Holder's Securities, or any portion of the principal amount thereof
that is equal to U.S.$1,000 principal amount at maturity at their accreted value
or any integral multiple thereof, on the date (the "FUNDAMENTAL CHANGE
REDEMPTION DATE") (or if such date is not a Business Day, the next succeeding
Business Day) that is 45 days after the date of the Company Notice (as defined
in Section 14.02) at the Fundamental Change Redemption Price set forth in the
form of Security. The Issuers shall also pay accrued interest, if any, on such
Securities to, but excluding, the Fundamental Change Redemption Date; provided,
however, that installments of interest on Securities whose Stated Maturity is on
or prior to the Fundamental Change Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such on the Regular Record Date according to their terms and the provisions of
Section 3.07. Such right to require the repurchase of the Securities shall not
continue after a discharge of the Issuers from its obligations with respect to
the Securities in accordance with Article 4, unless a Fundamental Change shall
have occurred prior to such discharge. Whenever in this Indenture (including
Sections 2.02, 3.01, 5.01(a) and 5.08) there is a reference, in any context, to
the principal of any Security as of any time, such reference shall be deemed to
include reference to the Fundamental Change Redemption Price payable in respect
of such Security to the extent that such Fundamental Change Redemption Price is,
was or would be so payable at such time, and express mention of the Fundamental
Change Redemption Price in any provision of this Indenture shall not be
construed as excluding the Fundamental Change Redemption Price in those
provisions of this Indenture when such express mention is not made.
SECTION 14.02. Notices; Method of Exercising Repurchase Right, Etc. (a)
Unless the Company shall have theretofore called for redemption all of the
Outstanding Securities, on or before the 30th day after the occurrence of a
Fundamental Change, the Company or, at the request and expense of the Company,
the Trustee, shall give to all Holders of Securities, in the manner provided in
Section 1.06, notice (the "COMPANY NOTICE") of the occurrence of the Fundamental
Change and of the repurchase right set forth herein arising as a result thereof.
The Company shall also deliver a copy of such notice of a repurchase right to
the Trustee.
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Each notice of a repurchase right shall state:
(i) the Fundamental Change Redemption Date,
(ii) the date by which the repurchase right must be exercised,
(iii) the Fundamental Change Redemption Price,
(iv) a description of the procedure which a Holder must follow
to exercise a repurchase right, and the place or places where such
Securities maturing after the Fundamental Change Redemption Date, are
to be surrendered for payment of the Fundamental Change Redemption
Price and accrued interest, if any,
(v) that on the Fundamental Change Redemption Date, the
Fundamental Change Redemption Price and accrued interest, if any, will
become due and payable to, but excluding, the Fundamental Change
Redemption Date upon each such Security designated by the Holder to be
repurchased, and that interest thereon shall cease to accrue on and
after said date, and
(vi) the Conversion Rate then in effect, the date on which the
right to convert the principal amount of the Securities to be
repurchased will terminate and the place or places where such
Securities may be surrendered for conversion.
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder's right to exercise a repurchase right or affect
the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of this Article
are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee or any Paying Agent on or before the 30th day after the date of the
Company Notice (or if such 30th day is not a Business Day, the immediately
preceding Business Day) the Security to be repurchased with the form entitled
"Option to Elect Redemption Upon a Fundamental Change" on the reverse thereof
duly completed, together with such Security duly endorsed for transfer.
Such written notice shall be irrevocable, except that the right of the
Holder to convert the Securities with respect to which the repurchase right is
being
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exercised shall continue until the close of business on the Business Day prior
to the Fundamental Change Redemption Date.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Issuers shall pay or cause to be paid to the Trustee
or the Paying Agent the Fundamental Change Redemption Price in cash, as provided
above, for payment to the Holder on the Fundamental Change Redemption Date
together with accrued and unpaid interest to the Fundamental Change Redemption
Date payable with respect to the Securities as to which their purchase right has
been exercised; provided, however, that installments of interest that mature on
or prior to the Fundamental Change Redemption Date shall be payable in cash, in
the case of Securities, to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for repurchase
shall not be so paid on the Fundamental Change Redemption Date, the principal
amount of such Security (or portion thereof, as the case may be) shall, until
paid, bear interest to the extent permitted by applicable law from the
Fundamental Change Redemption Date at the rate of ____% per annum, and each
Security shall remain convertible into Common Stock until the principal of such
Security (or portion thereof, as the case may be) shall have been paid or duly
provided for.
(e) Any Security which is to be repurchased only in part shall be
surrendered to the Trustee (with, if the Issuers or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Issuers and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Issuers shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, containing
identical terms and conditions, each in an authorized denomination in aggregate
principal amount equal to and in exchange for the unrepurchased portion of the
principal of the Security so surrendered.
(f) All securities delivered for repurchase shall be delivered to the
Trustee, the Paying Agent or any other agents (as shall be set forth in the
Company Notice) to be canceled by or at the direction of the Trustee, which
shall dispose of the same as provided in Section 3.09.
SECTION 14.03. Merger, Consolidation, Etc. In the case of any merger,
consolidation, sale or transfer of all or substantially all of the assets of the
Company to which Section 12.11 applies, in which the Common Stock of the
Company is changed or exchanged as a result into the right to receive shares of
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stock and other securities or property or assets (including cash) which includes
Common Stock of the Company or common stock of another Person that are, or upon
issuance will be, traded on a United States national securities exchange or
approved for trading on an established automated over-the-counter trading market
in the United States and such shares constitute at the time such change or
exchange becomes effective in excess of 50% of the aggregate fair market value
of such shares of stock and other securities, property and assets (including
cash) (as determined by the Company, which determination shall be conclusive and
binding), then the Company and the Person resulting from such merger or
consolidation or which acquires the properties or assets (including cash) of the
Company, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture) modifying the
provisions of this Indenture relating to the right of Holders to cause the
Issuers to repurchase the Securities following a Fundamental Change, including
without limitation the applicable provisions of this Article 14 and the
definitions of the Common Stock and Fundamental Change, as appropriate, and such
other related definitions set forth herein as determined in good faith by the
Company and the Company (which determination shall be conclusive and binding),
to make such provisions apply in the event of a subsequent Fundamental Change to
the common stock and the issuer thereof if different from the Company and the
Common Stock of the Company (in lieu of the Company and Common Stock of the
Company).
ARTICLE 15
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 15.01. Company to Furnish Trustee Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after the Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities as of
such Regular Record Date, and
(b) at such other times as the Trustee may reasonably request
in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
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provided, however, that no such list need be furnished so long as the Trustee is
acting as Note Registrar.
SECTION 15.02. Trustee to Furnish Company Names and Addresses of
Holders. The Trustee will furnish or cause to be furnished to the Company, or to
Company's counsel:
(a) within 10 days from the date of this Indenture, an updated
Note Register,
(b) semi-annually, not more than 15 days after the Regular
Record Date, an updated Note Register, in such form as the Company may
reasonably require, of the names and addresses of the Holders of
Securities as of such Regular Record Date, and
(c) at such other times as the Trustee may reasonably request
in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished; provided, however,
that no such list need be furnished so long as the Trustee is not
acting as Note Registrar.
SECTION 15.03. Preservation of Information. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, the names and
addresses of Holders contained in the most recent list furnished to the Trustee
as provided in Section 15.01, if any, and the names and addresses of Holders
received by the Trustee in its capacity as Note Registrar. The Trustee may
destroy any list furnished to it pursuant to Section 15.01 upon receipt of a new
list so furnished.
(b) If and when this Indenture has become qualified under the
Trust Indenture Act, the rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and duties of the Trustee,
shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Issuers and the Trustee that neither the Issuers
nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made hereunder.
SECTION 15.04. Reports by Trustee. (a) If and when this Indenture
becomes qualified under the Trust Indenture Act, the Trustee shall transmit to
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Holders such reports concerning the Trustee and its actions under this Indenture
as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto.
(b) If and when this Indenture becomes qualified under the Trust
Indenture Act, a copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 15.05. Reports by Company. If and when this Indenture becomes
qualified under the Trust Indenture Act, the Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 shall be filed with the Trustee within 15 days after the
same is so required to be filed with the Commission.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
VERITAS SOFTWARE CORPORATION
By:
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Name:
Title:
VERITAS OPERATING CORPORATION
By:
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Name:
Title:
STATE STREET BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.,
as Trustee
By:
-------------------------------
Name:
Title:
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