Exhibit 12
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TiVo Inc., Issuer
The Bank of New York,
as Trustee
INDENTURE
Dated as of August 28, 2001
7% Convertible Senior Notes due 2006
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CROSS-REFERENCE SHEET*
Provisions of Trust Indenture Act of 1939 and Indenture, dated as of
August 28, 2001, between TiVo Inc. and The Bank of New York, as Trustee,
providing for the 7% Convertible Senior Notes due 2006:
Section of the Act Section of Indenture
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310(a)(1) and (2)............................ 8.9
310(a)(3) and (4)............................ N.A.**
310(b)....................................... 8.8 and 8.10(b) and (d)
310(c)....................................... N.A.
311(a)....................................... 8.13
311(b)....................................... 8.13
311(c)....................................... N.A.
312(a)....................................... 6.1 and 6.2(a)
312(b)....................................... 6.2(b)
312(c)....................................... 6.2(c)
313(a)....................................... 6.3(a)
313(b)(1).................................... N.A.
313(b)(2).................................... 6.3(a)
313(c)....................................... 6.3(a)
313(d)....................................... 6.3(b)
314(a)....................................... 6.4
314(b)....................................... N.A.
314(c)(1) and (2)............................ 17.5
314(c)(3).................................... N.A.
314(d)....................................... N.A.
314(e)....................................... 17.5
314(f)....................................... N.A.
315(a), (c) and (d).......................... 8.1
315(b)....................................... 7.8
315(e)....................................... 7.9
316(a)(1).................................... 7.7
316(a)(2).................................... Not required
316(a) (last sentence)....................... 9.4
316(b)....................................... 11.2
* This Cross-Reference Table shall not, for any purpose, be deemed a part
of this Indenture.
** N.A. means Not Applicable.
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................................................................1
Section 1.1 Definitions.....................................................................................1
ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES..........................................7
Section 2.1 Designation, Amount and Issue of Notes..........................................................7
Section 2.2 Form of Notes...................................................................................7
Section 2.3 Date and Denomination of Notes; Payments of Interest............................................8
Section 2.4 Execution of Notes..............................................................................9
Section 2.5 Exchange and Registration of Transfer of Notes; Restrictions on Transfer.......................10
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes.....................................................17
Section 2.7 Temporary Notes................................................................................18
Section 2.8 Cancellation of Notes Paid, Etc................................................................18
Section 2.9 CUSIP Numbers..................................................................................19
ARTICLE III PROVISIONAL REDEMPTION OF NOTES..........................................................................19
Section 3.1 Redemption Price...............................................................................19
Section 3.2 Notice of Redemption; Selection of Notes.......................................................20
Section 3.3 Payment of Notes Called for Redemption.........................................................21
Section 3.4 Conversion Arrangement on Call for Redemption..................................................22
ARTICLE IV [Intentionally Omitted.]..................................................................................23
ARTICLE V PARTICULAR COVENANTS OF THE COMPANY........................................................................23
Section 5.1 Payment of Principal, Premium and Interest.....................................................23
Section 5.2 Maintenance of Office or Agency................................................................23
Section 5.3 Appointments to Fill Vacancies in Trustee's Office.............................................24
Section 5.4 Provisions as to Paying Agent..................................................................24
Section 5.5 Existence......................................................................................25
Section 5.6 Information Requirement........................................................................25
Section 5.7 Stay, Extension and Usury Laws.................................................................25
Section 5.8 Compliance Certificate.........................................................................25
Section 5.9 Further Instruments and Acts...................................................................26
Section 5.10 Limitation on Dividends and Distributions......................................................26
Section 5.11 Limitation on Incurrence of Indebtedness of Subsidiaries.......................................26
ARTICLE VI NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE.............................................27
Section 6.1 Noteholders' Lists.............................................................................27
Section 6.2 Preservation and Disclosure of Lists...........................................................27
Section 6.3 Reports by Trustee.............................................................................27
Section 6.4 Reports by Company.............................................................................28
ARTICLE VII DEFAULTS AND REMEDIES....................................................................................28
Section 7.1 Events of Default..............................................................................28
Section 7.2 Payments of Notes on Default; Suit Therefor....................................................31
Section 7.3 Application of Monies Collected by Trustee.....................................................33
Section 7.4 Proceedings by Noteholder......................................................................33
Section 7.5 Proceedings by Trustee.........................................................................34
Section 7.6 Remedies Cumulative and Continuing.............................................................34
Section 7.7 Direction of Proceedings and Waiver of Defaults by Majority of Noteholders.....................34
Section 7.8 Notice of Defaults.............................................................................35
Section 7.9 Undertaking to Pay Costs.......................................................................35
Section 7.10 Delay or Omission Not Waiver...................................................................36
ARTICLE VIII CONCERNING THE TRUSTEE..................................................................................36
Section 8.1 Duties and Responsibilities of Trustee.........................................................36
Section 8.2 Reliance on Documents, Opinions, Etc...........................................................37
Section 8.3 No Responsibility for Recitals, Etc............................................................39
Section 8.4 Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes...........................39
Section 8.5 Monies to be Held in Trust.....................................................................39
Section 8.6 Compensation and Expenses of Trustee...........................................................39
Section 8.7 Officer's Certificate as Evidence..............................................................40
Section 8.8 Conflicting Interests of Trustee...............................................................40
Section 8.9 Eligibility of Trustee.........................................................................40
Section 8.10 Resignation or Removal of Trustee..............................................................40
Section 8.11 Acceptance by Successor Trustee................................................................42
Section 8.12 Succession by Merger, Etc......................................................................42
Section 8.13 Limitation on Rights of Trustee as Creditor....................................................43
ARTICLE IX CONCERNING THE NOTEHOLDERS................................................................................43
Section 9.1 Action by Noteholders..........................................................................43
Section 9.2 Proof of Execution by Noteholders..............................................................43
Section 9.3 Who Are Deemed Absolute Owners.................................................................43
Section 9.4 Company-Owned Notes Disregarded................................................................44
Section 9.5 Revocation of Consents; Future Holders Bound...................................................44
ARTICLE X NOTEHOLDERS' MEETINGS......................................................................................45
Section 10.1 Purpose of Meetings............................................................................45
Section 10.2 Call of Meetings by Trustee....................................................................45
Section 10.3 Call of Meetings by Company or Noteholders.....................................................45
Section 10.4 Qualifications for Voting......................................................................46
Section 10.5 Regulations....................................................................................46
Section 10.6 Voting.........................................................................................46
Section 10.7 No Delay of Rights by Meeting..................................................................47
ARTICLE XI AMENDMENTS; SUPPLEMENTAL INDENTURES.......................................................................47
Section 11.1 Amendments; Supplemental Indentures without Consent of Noteholders.............................47
Section 11.2 Amendments; Supplemental Indentures with Consent of Noteholders................................48
Section 11.3 Effect of Amendments and Supplemental Indentures...............................................49
Section 11.4 Notation on Notes..............................................................................49
Section 11.5 Evidence of Compliance of Amendment or Supplemental Indenture to be Furnished to Trustee.......50
ARTICLE XII CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE........................................................50
Section 12.1 Company May Consolidate, Etc...................................................................50
Section 12.2 Successor Entity to be Substituted.............................................................51
Section 12.3 Opinion of Counsel to be Given Trustee.........................................................51
ARTICLE XIII SATISFACTION AND DISCHARGE OF INDENTURE.................................................................52
Section 13.1 Discharge of Indenture.........................................................................52
Section 13.2 Deposited Monies to be Held in Trust by Trustee................................................52
Section 13.3 Paying Agent to Repay Monies Held..............................................................52
Section 13.4 Return of Unclaimed Monies.....................................................................53
Section 13.5 Reinstatement..................................................................................53
ARTICLE XIV IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS..........................................53
Section 14.1 Indenture and Notes Solely Corporate Obligations...............................................53
ARTICLE XV CONVERSION OF NOTES.......................................................................................54
Section 15.1 Right to Convert...............................................................................54
Section 15.2 Exercise of Conversion Privilege; Issuance of Common Stock on Conversion.......................54
Section 15.3 Cash Payments in Lieu of Fractional Shares.....................................................56
Section 15.4 Conversion Price...............................................................................56
Section 15.5 Adjustment of Conversion Price.................................................................56
Section 15.6 Effect of Reclassification, Consolidation, Merger or Sale......................................66
Section 15.7 Taxes on Shares Issued.........................................................................67
Section 15.8 Reservation of Shares; Shares to be Fully Paid; Listing of Common Stock........................67
Section 15.9 Responsibility of Trustee......................................................................67
Section 15.10 Notice to Holders Prior to Certain Actions.....................................................68
Section 15.11 Additional Conversion Price Adjustments........................................................69
ARTICLE XVI REPURCHASE UPON A REPURCHASE EVENT.......................................................................72
Section 16.1 Repurchase Right...............................................................................72
Section 16.2 Notices; Method of Exercising Repurchase Right, Etc............................................73
Section 16.3 [Reserved......................................................................................75
Section 16.4 Certain Definitions............................................................................75
ARTICLE XVII MISCELLANEOUS PROVISIONS................................................................................77
Section 17.1 Provisions Binding on Company's Successors.....................................................77
Section 17.2 Official Acts by Successor Corporation.........................................................77
Section 17.3 Addresses for Notices, Etc.....................................................................77
Section 17.4 Governing Law..................................................................................78
Section 17.5 Evidence of Compliance with Conditions Precedent; Certificates to Trustee......................78
Section 17.6 Legal Holidays.................................................................................78
Section 17.7 No Security Interest Created...................................................................78
Section 17.8 Trust Indenture Act............................................................................78
Section 17.9 Benefits of Indenture..........................................................................79
Section 17.10 Table of Contents, Headings, Etc...............................................................79
Section 17.11 Authenticating Agent...........................................................................79
Section 17.12 Execution in Counterparts......................................................................80
INDENTURE dated as of August 28, 2001 between TiVo Inc., a Delaware
corporation (hereinafter sometimes called the "Company", as more fully set
forth in Section 1.1), and The Bank of New York, a New York banking
corporation, as trustee (hereinafter sometimes called the "Trustee", as more
fully set forth in Section 1.1).
W I T N E S S E T H:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 7% Convertible Senior Notes due 2006 (hereinafter
sometimes called the "Notes"), in an aggregate principal amount not to exceed
$51,750,000 and to provide the terms and conditions upon which the Notes are
to be authenticated, issued and delivered, the Company has duly authorized
the execution and delivery of this Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne by
the Notes, a form of assignment, a form of option to elect repayment upon a
Repurchase Event, and a form of conversion notice and transfer to be borne by
the Notes are to be substantially in the forms hereinafter provided for; and
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee or a
duly authorized authenticating agent, as provided in this Indenture, the
valid, binding and legal obligations of the Company, and to constitute these
presents a valid agreement according to its terms, have been done and
performed, and the execution of this Indenture and the issue hereunder of the
Notes have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Notes are, and are to be, authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the Notes
by the holders thereof, the Company covenants and agrees with the Trustee for
the equal and proportionate benefit of the respective holders from time
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. The terms defined in this Section 1.1
(except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any indenture
supplemental hereto shall have the respective meanings specified in this
Section 1.1. All other terms used in this Indenture, which are defined in the
Trust Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires) shall have the meanings assigned to such terms in
said Trust Indenture Act and in said Securities Act as in force at the date
of the execution of this Indenture. The words "herein," "hereof,"
"hereunder," and words of similar import refer to this Indenture as a whole
and not to any particular Article, Section or other Subdivision. The terms
defined in this Article include the plural as well as the singular.
Affiliate: The term "Affiliate" of any specified person shall mean
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.
Board of Directors: The term "Board of Directors" shall mean the
Board of Directors of the Company or a committee of such Board duly
authorized to act for it hereunder.
Board Resolution: The term "Board Resolution" means a copy of a
resolution certified by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Board of Directors, or duly
authorized committee thereof (to the extent permitted by applicable law), and
to be in full force and effect on the date of such certification, and
delivered to the Trustee.
Business Day: The term "Business Day" means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which the banking
institutions in The City of New York or the city in which the Corporate Trust
Office is located are authorized or obligated by law or executive order to
close or be closed.
Change in Control: The term "Change in Control" shall have the
meaning specified in Section 16.4.
close of business: The term "close of business" means 5 p.m. (New
York City time).
Commission: The term "Commission" shall mean the Securities and
Exchange Commission.
Common Stock: The term "Common Stock" shall mean any stock of any
class of the Company which has no preference in respect of dividends or of
amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject to
redemption by the Company. Subject to the provisions of Section 15.6,
however, shares issuable on conversion of Notes 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 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.
Common Stock Equivalent: The term "Common Stock Equivalent" shall
mean (a) any evidence of indebtedness of the Company convertible into,
exchangeable for or exercisable for Common Stock; shares of capital stock
(other than Common Stock) of the Company convertible into, exchangeable for
or exercisable for Common Stock; or other securities of the Company
convertible into, exchangeable for or exercisable for Common Stock and (b)
any rights, options or warrants to subscribe for, purchase or otherwise
acquire either Common Stock or any of the securities described in the
preceding clause (a).
Company: The term "Company" shall mean TiVo Inc., a Delaware
corporation, and subject to the provisions of Article XII, shall include its
successors and assigns.
Conversion Price: The term "Conversion Price" shall have the meaning
specified in Section 15.4.
Corporate Trust Office: The term "Corporate Trust Office," or other
similar term, shall mean the office of the Trustee at which at any particular
time its corporate trust business shall be principally administered, which
office is, at the date as of which this Indenture is dated, located at 000
Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate
Trust Administration.
Current Market Price: The term "Current Market Price" shall have the
meaning specified in Section 15.5(h).
default: The term "default" shall mean any event that is, or after
notice or passage of time, or both, would be, an Event of Default.
Equity Interests: The term "Equity Interests" shall mean capital
stock or warrants, options or other rights to acquire capital stock (but
excluding any debt security which is convertible into, or exchangeable for,
capital stock).
Event of Default: The term "Event of Default" shall mean any event
specified in Section 7.1, continued for the period of time, if any, and after
the giving of notice, if any, therein designated.
Exchange Act: The term "Exchange Act" means the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder.
Expiration Time: The term "Expiration Time" shall have the meaning
specified in Section 15.5(f).
Indebtedness: The term "Indebtedness" means the principal of,
premium, if any, interest on (including any interest accruing after the
filing of a petition by or against the Company under any bankruptcy law) and
any other payment due pursuant to, any of the following, whether outstanding
on the date of this Indenture or thereafter incurred or created: (a) All
indebtedness of the Company for money borrowed that is evidenced by notes,
debentures, bonds or other securities (including, but not limited to, those
which are convertible or exchangeable for securities of the Company); (b) All
reimbursement obligations of the Company under letters of credit, bank
guarantees or bankers' acceptances; (c) All indebtedness of the Company under
interest rate and currency swap agreements, cap, floor and collar agreements,
currency spot and forward contracts and other similar agreements and
arrangements; (d) All indebtedness consisting of commitment or standby fees
under the Company's credit facilities or letters of credit available to the
Company; (e) All obligations of the Company under leases required or
permitted to be capitalized under generally accepted accounting principles;
(f) All indebtedness or obligations of the kinds described in any of the
preceding clauses (a), (b), (c), (d) or (e) that have been assumed by or
guaranteed in any manner by the Company or in effect guaranteed (directly or
indirectly) by the Company through an agreement to purchase, contingent or
otherwise; and (g) All renewals, extensions, refundings, deferrals,
amendments or modifications of any indebtedness or obligations of the kinds
described in any of the preceding clauses (a), (b), (c), (d), (e) or (f);
if and to the extent that any of the indebtedness or obligations described in
the preceding clauses (a), (b), (c), (d), (e), (f), and (g) (other than the
letters of credit described in the preceding clause (b) and the indebtedness
described in the preceding clause (c)) would appear as a liability upon the
Company's balance sheet as prepared in accordance with generally accepted
accounting principles, but in the case of each of the items described in the
preceding clauses (a), (b), (c), (d), (e), (f) and (g), excluding
indebtedness for trade payables or the deferred purchase price of assets or
services incurred by the Company in the ordinary course of business (or
refinancings thereof).
Indenture: The term "Indenture" shall mean this instrument as
originally executed or, if amended or supplemented as herein provided, as so
amended or supplemented.
Individual Accredited Investor: The term "Individual Accredited
Investor" shall mean an individual "accredited investor" as defined in Rule
501(a)(5) or (6) of Regulation D under the Securities Act.
Institutional Accredited Investor: The term "Institutional
Accredited Investor" shall mean an institutional "accredited investor" as
such term is defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act.
Liquidated Damages: The term "Liquidated Damages" means all
liquidated damages then owing pursuant to Section 3(e) of the Registration
Rights Agreement.
Note or Notes: The terms "Note" or "Notes" shall mean any Note or
Notes, as the case may be, authenticated and delivered under this Indenture.
Noteholder or holder: The terms "Noteholder" or "holder" as applied
to any Note, or other similar terms (but excluding the term "beneficial
holder"), shall mean any person in whose name at the time a particular Note
is registered on the Note register.
Note register: The term "Note register" shall have the meaning
specified in Section 2.5(a).
Officer's Certificate: The term "Officer's Certificate", when used
with respect to the Company, shall mean a certificate signed by one of the
President, the Chief Executive Officer, Chief Financial Officer, Executive or
Senior Vice President or any Vice President (whether or not designated by a
number or numbers or word added before or after the title "Vice President"),
that is delivered to the Trustee. Each such certificate shall include the
statements provided for in Section 17.5 if and to the extent required by the
provisions of such Section.
Opinion of Counsel: The term "Opinion of Counsel" shall mean an
opinion in writing signed by legal counsel, who may be an employee of or
counsel to the Company, which is delivered to the Trustee. Each such opinion
shall include the statements provided for in Section 17.5 if and to the
extent required by the provisions of such Section.
outstanding: The term "outstanding," when used with reference to
Notes, shall, subject to the provisions of Section 9.4, mean, as of any
particular time, all Notes authenticated and delivered by the Trustee under
this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(b) Notes, or portions thereof, for the payment, or redemption
of which monies in the necessary amount shall have been deposited in
trust with the Trustee or with any paying agent (other than the
Company) or shall have been set aside and segregated in trust by the
Company (if the Company shall act as its own paying agent); provided
that if such Notes are to be redeemed, as the case may be, prior to
the maturity thereof, notice of such redemption shall have been
given as provided in Section 3.2, or provision satisfactory to the
Trustee shall have been made for giving such notice;
(c) Notes paid pursuant to Section 2.6 and Notes in lieu of
which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.6
unless proof satisfactory to the Trustee is presented that any such
Notes are held by bona fide holders in due course; and (d) Notes
converted into Common Stock pursuant to Article XV and Notes deemed
not outstanding pursuant to Section 3.2.
person: The term "person" shall mean an individual, a corporation, a
limited liability company, an association, a partnership, an individual, a
joint venture, a joint stock company, a trust, an unincorporated organization
or a government or an agency or a political subdivision thereof.
Predecessor Note: The term "Predecessor Note" of any particular Note
shall mean every previous Note evidencing all or a portion of the same debt
as that evidenced by such particular Note; and, for the purposes of this
definition, any Note authenticated and delivered under Section 2.6 in lieu of
a lost, destroyed or stolen Note shall be deemed to evidence the same debt as
the lost, destroyed or stolen Note that it replaces.
Registration Rights Agreement: The term "Registration Rights
Agreement" means that certain Registration Rights Agreement, dated as of
August 28, 2001, between the Company and the initial purchasers of the Notes
as such agreement may be amended from time to time.
Repurchase Event: The term "Repurchase Event" shall have the meaning
specified in Section 16.4.
Repurchase Price: The term "Repurchase Price" has the meaning
specified in Section 16.1.
Responsible Officer: The term "Responsible Officer", when used with
respect to the Trustee, shall mean an officer of the Trustee in the Corporate
Trust Office assigned and duly authorized by the Trustee to administer its
obligations under this Indenture.
Restricted Securities: The term "Restricted Securities" has the
meaning specified in Section 2.5(d).
Securities Act: The term "Securities Act" means the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder.
Significant Subsidiary: The term "Significant Subsidiary" means,
with respect to any person, a Subsidiary of such person that would constitute
a "significant subsidiary" as such term is defined under Rule 1-02 of
Regulation S-X of the Commission.
Subsidiary: The term "Subsidiary" means a corporation more than 50%
of the outstanding voting stock of which is owned, directly or indirectly, by
the Company or by one or more other Subsidiaries, or by the Company and one
or more other Subsidiaries. For the purposes of this definition, "voting
stock" means stock which ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock
has such voting power by reason of any contingency.
Trading Day: The term "Trading Day" has the meaning specified in
Section 15.5(h)(5).
Trust Indenture Act: The term "Trust Indenture Act" shall mean the
Trust Indenture Act of 1939, as amended, as it was in force at the date of
execution of this Indenture, except as provided in Sections 11.3 and 15.6;
provided, however, that in the event the Trust Indenture Act of 1939 is
amended after the date hereof, the term "Trust Indenture Act" shall mean, to
the extent required by such amendment, the Trust Indenture Act of 1939 as so
amended.
Trustee: The term "Trustee" shall mean The Bank of New York and its
successors and any corporation resulting from or surviving any consolidation
or merger to which it or its successors may be a party and any successor
trustee at the time serving as successor trustee hereunder.
The definitions of certain other terms are as specified in Article XV
and Article XVI.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.1 Designation, Amount and Issue of Notes. The Notes shall
be designated as "7% Convertible Senior Notes due 2006." Notes not to exceed
the aggregate principal amount of $51,750,000 upon the execution of this
Indenture, or (except pursuant to Sections 2.5, 2.6, 3.3, 15.2 and 16.2) from
time to time thereafter, may be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Notes upon the written order of the Company, signed by the
Company's (a) President, Chief Executive Officer, Executive or Senior Vice
President or any Vice President (whether or not designated by a number or
numbers or word or words added before or after the title "Vice President")
and (b) Chief Financial Officer, Treasurer or Assistant Treasurer or its
Secretary or any Assistant Secretary, without any further action by the
Company hereunder.
Section 2.2 Form of Notes. The Notes and the Trustee's certificate
of authentication to be borne by such Notes shall be substantially in the
form set forth in Exhibit A, which is incorporated in and made a part of this
Indenture.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, or to conform to usage.
The terms and provisions contained in the form of Note attached as
Exhibit A hereto shall constitute, and is hereby expressly made, a part of
this Indenture and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
Section 2.3 Date and Denomination of Notes; Payments of Interest.
The Notes shall be issuable in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof.
Every Note shall be dated the date of its authentication, and shall bear
interest from the applicable date and accrued interest shall be payable on
each August 15 and February 15 of each year, commencing February 15, 2002, as
specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be deemed to have commenced accruing on
August 24, 2001.
The person in whose name any Note (or its Predecessor Note) is
registered at the close of business on any record date with respect to any
interest payment date (including any Note that is converted after the record
date and on or before the interest payment date) shall be entitled to receive
the interest payable on such interest payment date notwithstanding the
cancellation of such Note upon any transfer, exchange or conversion
subsequent to the record date and on or prior to such interest payment date;
provided that, in the case of any Note, or portion thereof, called for
redemption pursuant to Article III on a redemption date, or repurchased by
the Company pursuant to Article XVI on a repurchase date, during the period
from the close of business on the record date to the close of business on the
Business Day next preceding the following interest payment date, interest
shall not be paid to the person in whose name the Note, or portion thereof,
is registered on the close of business on such record date, and the Company
shall have no obligation to pay interest on such Note or portion thereof
except to the extent required to be paid upon such redemption or repurchase
in accordance with Article III or Article XVI. Interest may, at the option of
the Company, be paid by check mailed to the address of such person on the
Note registry; provided that, with respect to any holder of Notes with an
aggregate principal amount equal to or in excess of $500,000, at the request
of such holder in writing to the Company, interest on such holder's Notes
shall be paid by wire transfer in immediately available funds to any bank
located in the United States in accordance with the wire transfer instruction
supplied by such holder from time to time to the Trustee and paying agent (if
different from Trustee) at least two days prior to the applicable record
date. The term "record date" with respect to any interest payment date shall
mean the August 1 or February 1 preceding said August 15 or February 15,
respectively.
Interest on the Notes shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
Any interest on any Note which is payable, but is not punctually
paid or duly provided for, on any said August 15 or February 15 (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
Noteholder on the relevant record date by virtue of his having been such
Noteholder; and such Defaulted Interest shall be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Notes (or their
respective Predecessor Notes) are registered at the close of
business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest to be paid on each Note and the date of the payment (which
shall be not less than twenty-five (25) days after the receipt by
the Trustee of such notice, unless the Trustee shall consent to an
earlier date), and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount to be
paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to
the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a special record date for the payment of such Defaulted
Interest which shall be not more than fifteen (15) days and not less
than ten (10) days prior to the date of the proposed payment and not
less than ten (10) days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment
of such Defaulted Interest and the special record date therefor to
be mailed, first-class postage prepaid, to each Noteholder as of
such special record date at his address as it appears in the Note
register, not less than ten (10) days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and
the special record date therefor having been so mailed, such
Defaulted Interest shall be paid to the persons in whose names the
Notes (or their respective Predecessor Notes) were registered at the
close of business on such special record date and shall no longer be
payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of
any securities exchange or automated quotation system on which the
Notes may be listed or designated for issuance, and upon such notice
as may be required by such exchange or automated quotation system,
if, after notice given by the Company to the Trustee of the proposed
payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Section 2.4 Execution of Notes. The Notes shall be signed in the
name and on behalf of the Company by the facsimile signature of its
President, its Chief Executive Officer, any of its Executive or Senior Vice
Presidents, or any of its Vice Presidents (whether or not designated by a
number or numbers or word or words added before or after the title "Vice
President") and attested by the facsimile signature of its Chief Financial
Officer, Treasurer or its Assistant Treasurer, or Secretary or any of its
Assistant Secretaries (which may be printed, engraved or otherwise reproduced
thereon, by facsimile or otherwise). Only such Notes as shall bear thereon a
certificate of authentication substantially in the form set forth on the form
of Note attached as Exhibit A hereto, manually executed by the Trustee (or an
authenticating agent appointed by the Trustee as provided by Section 17.11),
shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee (or such authenticating
agent) upon any Note executed by the Company shall be conclusive evidence
that the Note so authenticated has been duly authenticated and delivered
hereunder and that the holder thereof is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any of the
Notes shall cease to be such officer before the Notes so signed shall have
been authenticated and delivered by the Trustee, or disposed of by the
Company, such Notes nevertheless may be authenticated and delivered or
disposed of as though the person who signed such Notes had not ceased to be
such officer of the Company; and any Note may be signed on behalf of the
Company by such persons as, at the actual date of the execution of such Note,
shall be the proper officers of the Company, although at the date of the
execution of this Indenture any such person was not such an officer.
Section 2.5 Exchange and Registration of Transfer of Notes;
Restrictions on Transfer.
(a) The Company shall cause to be kept at the Corporate
Trust Office a register (the register maintained in such office and
in any other office or agency of the Company designated pursuant to
Section 5.2 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
Notes and of transfers of Notes. Such register shall be in written
form or in any form capable of being converted into written form
within a reasonable period of time. The Trustee is hereby appointed
"Note registrar" for the purpose of registering Notes and transfers
of Notes as herein provided. The Company may appoint one or more
co-registrars in accordance with Section 5.2.
Upon surrender for registration of transfer of any Note to
the Note registrar or any co-registrar, and satisfaction of the
requirements for such transfer set forth in this Section 2.5, the
Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees,
one or more new Notes of any authorized denominations and of a like
aggregate principal amount and bearing such restrictive legends as
may be required by this Indenture.
Notes may be exchanged for other Notes of any authorized
denominations and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at any office or agency
maintained or designated pursuant to Section 5.2 for such purpose.
Whenever any Notes are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the
Notes which the Noteholder making the exchange is entitled to
receive, bearing registration numbers not contemporaneously
outstanding.
All Notes presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the
Trustee, the Note registrar or any co-registrar) be duly endorsed,
or be accompanied by a written instrument or instruments of transfer
in form satisfactory to the Company and duly executed, by the
Noteholder thereof or his attorney-in-fact duly authorized in
writing.
Prior and as a condition to any sale or transfer of a Note
or the Common Stock issued upon conversion thereof that bears the
restrictive legend set forth in Section 2.5(b) or Section 2.5(c),
respectively (other than pursuant to a registration statement that
has been declared effective under the Securities Act), such
transferee shall, unless the Company otherwise agrees in writing and
so notifies the Trustee, furnish to the Company and the Trustee a
signed letter containing representations and agreements relating to
restrictions on transfer substantially in the form set forth in
Exhibit B to this Indenture and an opinion of counsel if the Company
so requests (other than with respect to a transfer pursuant to an
effective registration statement under the Securities Act) and such
certificates and other information as the Company and/or the Trustee
reasonably may require to confirm that any such transfer is being
made pursuant to an exemption from, or in a transaction not subject
to, the registration requirements of the Securities Act. If such
sale or transfer of a Note or the Common Stock issued upon
conversion thereof that bears the restrictive legend set forth in
Section 2.5(b) or Section 2.5(c), respectively, is made pursuant to
a registration statement that has been declared effective under the
Securities Act, such transferor shall deliver a broker's letter or
other evidence satisfactory to the Trustee and the Company as to
compliance with the prospectus delivery requirements under the
Securities Act.
No service charge shall be charged to the Noteholder for
any exchange or registration of transfer of Notes, but the Company
may require payment of a sum sufficient to cover any tax,
assessments or other governmental charges that may be imposed in
connection therewith.
None of the Company, the Trustee, the Note registrar or any
co-registrar shall be required to exchange or register a transfer of
(a) any Notes for a period of fifteen (15) days next preceding the
mailing of the notice of redemption or (b) any Notes called for
redemption or, if a portion of any Note is selected or called for
redemption, such portion thereof selected or called for redemption
or (c) any Notes surrendered for conversion or, if a portion of any
Note is surrendered for conversion, such portion thereof surrendered
for conversion or (d) any Notes, or a portion of any Note,
surrendered for repurchase (and not withdrawn) in connection with a
Repurchase Event.
All Notes issued upon any transfer or exchange of Notes in
accordance with this Indenture shall be the valid obligations of the
Company, evidencing the same debt, and entitled to the same benefits
under this Indenture as the Notes surrendered upon such registration
of transfer or exchange. (b) Every Note that bears or is required
under this Section 2.5(b) to bear the legend set forth in this
Section 2.5(b) (together with any Common Stock issued upon
conversion of the Notes and required to bear the legend set forth in
Section 2.5(c), collectively, the "Restricted Securities") shall be
subject to the restrictions on transfer set forth in this Section
2.5(b) (including the legend set forth below), unless such
restrictions on transfer shall be waived by written consent of the
Company, and the holder of each such Restricted Security, by such
holder's acceptance thereof, agrees to be bound by all such
restrictions on transfer. As used in Sections 2.5(b) and 2.5(c), the
term "transfer" encompasses any sale, pledge, transfer or other
disposition whatsoever of any Restricted Security.
Until two (2) years after the original issuance date of any
Note, any certificate evidencing such Note (and all securities
issued in exchange therefor or substitution thereof, other than
Common Stock, if any, issued upon conversion thereof which shall
bear the legend set forth in Section 2.5(c), if applicable) shall
bear a legend in substantially the following form (unless such Note
has been transferred pursuant to a registration statement that has
been declared effective under the Securities Act (and which
continues to be effective at the time of such transfer), or the Note
has been transferred pursuant to the exemption from registration
provided by Rule 144 under the Securities Act, or unless otherwise
agreed by the Company in writing, with notice thereof to the
Trustee):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN
AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S
UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED
BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), (3) TO A PERSON THAT IS AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3),
(5), (6) OR (7) OF REGULATION D UNDER THE SECURITIES ACT
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY)
AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES
AND NOT FOR DISTRIBUTION, AND A SIGNED LETTER CONTAINING
CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY
(THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE INDENTURE
GOVERNING THIS SECURITY AND MAY BE OBTAINED FROM THE
TRUSTEE AND/OR THE TRANSFER AGENT) IS DELIVERED PRIOR TO
SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE
TRUSTEE AND/OR THE TRANSFER AGENT, (4) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT, (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH
CASE IN ACCORDANCE WITH ANY OTHER APPLICABLE SECURITIES
LAWS. THE HOLDER HEREOF AGREES THAT, PRIOR TO SUCH
TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE TRUSTEE AN
OPINION OF COUNSEL IF THE ISSUER SO REQUESTS (OTHER THAN
WITH RESPECT TO A TRANSFER PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY
REQUIRE TO CONFIRM THAT ANY TRANSFER BY IT OF THIS SECURITY
COMPLIES WITH THE FOREGOING RESTRICTIONS AND IS BEING MADE
PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT
SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF SUCH
LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT
IS (1) AN ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1),
(2), (3), (5), (6) OR (7) OF REGULATION D UNDER THE
SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY FOR
INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (2) A
NON-U.S. PERSON OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
The Company may, but is not obligated to, instruct the
Trustee to place the following legend on any Note held by or
transferred to an "affiliate" (as defined in Rule 501(b) of
Regulation D under the Securities Act):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE HELD BY
A PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER
FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD
ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A
VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT.
Any Note (or security issued in exchange or substitution
therefor) as to which such restrictions on transfer shall have
expired in accordance with their terms may, upon surrender of such
Note for exchange to the Note registrar in accordance with the
provisions of this Section 2.5, be exchanged for a new Note or
Notes, of like tenor and aggregate principal amount, which shall not
bear the restrictive legend required by this Section 2.5(b).
(c) Until two (2) years after the original issuance date of
any Note, any stock certificate representing Common Stock issued
upon conversion of such Note shall bear a legend in substantially
the following form (unless such Common Stock has been transferred
pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be
effective at the time of such transfer), or the Notes from which
such Common Stock was converted were transferred pursuant to a
registration statement that has been declared effective under the
Securities Act and which was effective at the time of such transfer,
or the Common Stock has been transferred pursuant to an exemption
from registration provided by Rule 144 under the Securities Act, or
unless otherwise agreed by the Company in writing with written
notice thereof to the Trustee and any transfer agent for the Common
Stock):
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933 (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY
PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF THE
ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN
THE EVENT THIS SECURITY BECOMES ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (`RULE
144A'), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A (AS INDICATED BY THE BOX CHECKED BY
THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY), (3) IN AN OFFSHORE TRANSACTION
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT
(AS INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE
CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY),
(4) TO A PERSON THAT IS AN ACCREDITED INVESTOR AS DEFINED
IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF REGULATION
D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED
BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE
REVERSE OF THIS SECURITY) THAT IS ACQUIRING THIS SECURITY
FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION, AND A
SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE
SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER IS AN
EXHIBIT TO THE AGREEMENT GOVERNING THIS SECURITY AND MAY BE
OBTAINED FROM THE TRANSFER AGENT) IS DELIVERED PRIOR TO
SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE
TRANSFER AGENT, (5) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE
SECURITIES ACT, (6) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OR (7) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY
OTHER APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES
THAT, PRIOR TO SUCH TRANSFER, IT WILL FURNISH TO THE ISSUER
AND THE TRANSFER AGENT AN OPINION OF COUNSEL IF THE ISSUER
SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT) AND SUCH CERTIFICATES AND OTHER INFORMATION AS THEY
MAY REASONABLY REQUIRE TO CONFIRM THAT ANY TRANSFER BY THE
HOLDER OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER HEREOF
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS
SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) AN ACCREDITED
INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT
IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT
FOR DISTRIBUTION OR (2) A NON-U.S. PERSON OUTSIDE THE
UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF RULE 902 UNDER) REGULATION S
UNDER THE SECURITIES ACT.
The Company may, but is not obligated to, instruct the
transfer agent for the Company's Common Stock to place the following
legend on any certificate evidencing shares of Common Stock held by
or transferred to an "affiliate" (as defined in Rule 501(b) of
Regulation D under the Securities Act) of the Company:
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A
PERSON WHO MAY BE DEEMED TO BE AN AFFILIATE OF THE ISSUER
FOR PURPOSES OF RULE 144 PROMULGATED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT"), AND MAY BE SOLD
ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A
VALID EXEMPTION FROM REGISTRATION UNDER THE 1933 ACT.
Any such Common Stock as to which such restrictions on
transfer shall have expired in accordance with their terms may, upon
surrender of the certificates representing such shares of Common
Stock for exchange in accordance with the procedures of the transfer
agent for the Common Stock, be exchanged for a new certificate or
certificates for a like aggregate number of shares of Common Stock,
which shall not bear the restrictive legend required by this Section
2.5(c).
(d) Any Note or Common Stock issued upon the conversion or
exchange of a Note that, prior to the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor rule), is purchased or owned by the
Company or any Affiliate thereof may not be resold by the Company or
such Affiliate unless registered under the Securities Act or resold
pursuant to an exemption from the registration requirements of the
Securities Act in a transaction that results in such Notes or Common
Stock, as the case may be, no longer being "restricted securities"
(as defined under Rule 144).
(e) Notwithstanding any provision of Section 2.5 to the
contrary, in the event Rule 144(k) as promulgated under the
Securities Act (or any successor rule) is amended to change the
two-year period under Rule 144(k) (or the corresponding period under
any successor rule), from and after receipt by the Trustee of the
Officer's Certificate and Opinion of Counsel provided for in this
Section 2.5(e), (i) each reference in Section 2.5(b) to "two (2)
years" shall be deemed for all purposes hereof to be references to
such changed period, (ii) each reference in Section 2.5(c) to "two
(2) years" shall be deemed for all purposes hereof to be references
to such changed period and (iii) all corresponding references in the
Notes shall be deemed for all purposes hereof to be references to
such changed period, provided that such changes shall not become
effective if they are otherwise prohibited by, or would otherwise
cause a violation of, the then-applicable federal securities laws.
As soon as practicable after the Company has knowledge of the
effectiveness of any such amendment to change the two-year period
under Rule 144(k) (or the corresponding period under any successor
rule), unless such changes would otherwise be prohibited by, or
would otherwise cause a violation of, the then-applicable securities
law, the Company shall provide to the Trustee an Officer's
Certificate and Opinion of Counsel informing the Trustee of the
effectiveness of such amendment and the effectiveness of the
foregoing changes to Sections 2.5(b) and 2.5(c) and the Notes. The
provisions of this Section 2.5(e) will not be effective until such
time as the Opinion of Counsel and Officer's Certificate have been
received by the Trustee hereunder. This Section 2.5(e) shall apply
to successive amendments to Rule 144(k) (or any successor rule)
changing the holding period thereunder.
(f) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions
on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Note other than
to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the
express requirements hereof.
Section 2.6 Mutilated, Destroyed, Lost or Stolen Notes. In case any
Note shall become mutilated or be destroyed, lost or stolen, the Company in
its discretion may execute, and upon its request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and deliver,
a new Note, bearing a number not contemporaneously outstanding, in exchange
and substitution for the mutilated Note, or in lieu of and in substitution
for the Note so destroyed, lost or stolen. In every case the applicant for a
substituted Note shall furnish to the Company, to the Trustee and, if
applicable, to such authenticating agent such security or indemnity as
required by them to save each of them harmless for any loss, liability, cost
or expense caused by or connected with such substitution, and, in every case
of destruction, loss or theft, the applicant shall also furnish to the
Company, to the Trustee and, if applicable, to such authenticating agent
evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.
The Trustee or such authenticating agent may authenticate any such
substituted Note and deliver the same upon the receipt of such security or
indemnity as the Trustee, the Company and, if applicable, such authenticating
agent may require. Upon the issuance of any substituted Note, the Company may
require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Note which has matured or is about
to mature or has been called for redemption or is about to be converted into
Common Stock shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Note, pay or authorize the
payment of or convert or authorize the conversion of the same (without
surrender thereof except in the case of a mutilated Note), as the case may
be, if the applicant for such payment or conversion shall furnish to the
Company, to the Trustee and, if applicable, to such authenticating agent such
security or indemnity as will be required by them to save each of them
harmless for any loss, liability, cost or expense caused by or connected with
such substitution, and, in case of destruction, loss or theft, evidence
satisfactory to the Company, the Trustee and, if applicable, any paying agent
or conversion agent of the destruction, loss or theft of such Note and of the
ownership thereof.
Every substitute Note issued pursuant to the provisions of this
Section 2.6 by virtue of the fact that any Note is destroyed, lost or stolen
shall constitute an additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Note shall be found at any time, and
shall be entitled to all the benefits of (but shall be subject to all the
limitations set forth in) this Indenture equally and proportionately with any
and all other Notes duly issued hereunder. To the extent permitted by law,
all Notes shall be held and owned upon the express condition that the
foregoing provisions are exclusive with respect to the replacement or payment
or conversion of mutilated, destroyed, lost or stolen Notes and shall
preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment or conversion of negotiable instruments or other
securities without their surrender.
Section 2.7 Temporary Notes. Pending the preparation of definitive
Notes, the Company may execute and the Trustee or an authenticating agent
appointed by the Trustee shall, upon written request of the Company,
authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in
the form of the definitive Notes but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may be
determined by the Company. Every such temporary Note shall be executed by the
Company and authenticated by the Trustee or such authenticating agent upon
the same conditions and in substantially the same manner, and with the same
effect, as the definitive Notes. Without unreasonable delay the Company will
execute and deliver to the Trustee or such authenticating agent definitive
Notes and thereupon any or all temporary Notes may be surrendered in exchange
therefor, at each office or agency maintained by the Company pursuant to
Section 5.2 and the Trustee or such authenticating agent shall authenticate
and deliver in exchange for such temporary Notes an equal aggregate principal
amount of definitive Notes. Such exchange shall be made by the Company at its
own expense and without any charge therefor. Until so exchanged, the
temporary Notes shall in all respects be entitled to the same benefits and
subject to the same limitations under this Indenture as definitive Notes
authenticated and delivered hereunder.
Section 2.8 Cancellation of Notes Paid, Etc. All Notes surrendered
for the purpose of payment, redemption, repurchase, conversion, exchange or
registration of transfer, shall, if surrendered to the Company or any paying
agent or any Note registrar or any conversion agent, be surrendered to the
Trustee and promptly canceled by it, or, if surrendered to the Trustee, shall
be promptly canceled by it, and no Notes shall be issued in lieu thereof
except as expressly permitted by any of the provisions of this Indenture.
Upon written instructions of the Company, the Trustee shall dispose of
canceled Notes in accordance with its customary procedures. If the Company
shall acquire any of the Notes, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Notes
unless and until the same are delivered to the Trustee for cancellation.
Section 2.9 CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only
on the other identification numbers printed on the Notes, and any such
redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE III
PROVISIONAL REDEMPTION OF NOTES
Section 3.1 Redemption Price. The Company may, at its option, redeem
all or any part of the Notes on any date prior to maturity, upon notice as
set forth in Section 3.2, and at a redemption price equal to $1,000 per
$1,000 principal amount of the Notes to be redeemed, plus accrued and unpaid
interest, if any, to, but excluding, the date of redemption, provided,
however, that, prior to August 28, 2004, the Company shall only have such
right of redemption if (1) the Closing Price (as defined in Section 15.5(h))
per share of the Common Stock has exceeded 200% of the Conversion Price then
in effect (not including the effect of any adjustment to the Conversion Price
made pursuant to Section 15.11) for at least twenty (20) Trading Days (as
defined in Section 15.5(h)) within a period of thirty (30) consecutive
Trading Days (the "Determination Period") and (2) within ten (10) days
following the Determination Period, the Company mails to holders the notice
required pursuant to Section 3.2 (the date of such notice, the "Notice
Date"), and provided further that prior to the last date on which the shelf
registration statement (the "Shelf Registration Statement") contemplated by
the Registration Rights Agreement covering resales of the Notes and the
Common Stock issuable upon conversion of the Notes is required to remain
effective pursuant to the Registration Rights Agreement, such Shelf
Registration Statement is effective and available for use at all times during
the period beginning thirty (30) days prior to the Notice Date and ending on
the earlier of the redemption date or the last date on which the Shelf
Registration Statement is required to remain effective and available pursuant
to the Registration Rights Agreement, and is expected to remain effective and
available for use until the earlier of thirty (30) days following the
redemption date or the last date on which the Shelf Registration Statement is
required to remain effective pursuant to the Registration Rights Agreement.
If the Company exercises such right of redemption prior to August 28, 2002,
the Company shall make an additional payment in cash to holders of the
redeemed Notes with respect to the Notes called for redemption, in an amount
(the "Provisional Payment") equal to $70 per each $1,000 principal amount of
the Note, less the amount of any interest actually paid on such Notes prior
to the date of notice of redemption is mailed. The Company shall make this
additional payment on all Notes called for redemption prior to August 28,
2002, including any Notes converted after the date the notice of redemption
is mailed and before the provisional redemption date.
Section 3.2 Notice of Redemption; Selection of Notes. In case the
Company shall desire to exercise the right to redeem all or, as the case may
be, any part of the Notes pursuant to Section 3.1, it shall fix a date for
redemption, and it, or at its request (which must be received by the Trustee
at least ten (10) Business Days prior to the date the Trustee is requested to
give notice as described below unless a shorter period is agreed to by the
Trustee), the Trustee in the name of and at the expense of the Company, shall
mail or cause to be mailed a notice of such redemption at least sixty (60)
and not more than ninety (90) days prior to the date fixed for redemption to
the holders of Notes so to be redeemed as a whole or in part at their last
addresses as the same appear on the Note register (provided that if the
Company shall give such notice, it shall also give such notice, and notice of
the Notes to be redeemed, to the Trustee). Such mailing shall be by first
class mail. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the holder
receives such notice. In any case, failure to give such notice by mail or any
defect in the notice to the holder of any Note designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note.
Each such notice of redemption shall specify the aggregate principal
amount of Notes to be redeemed, the "CUSIP" number or numbers of such Notes,
if any, the date fixed for redemption, the redemption price at which Notes
are to be redeemed, the amount of the Provisional Payment, if any, the place
or places of payment, that payment will be made upon presentation and
surrender of such Notes, that interest accrued to, but excluding, the date
fixed for redemption will be paid as specified in said notice, and that on
and after said date interest thereon or on the portion thereof to be redeemed
will cease to accrue. Such notice shall also state the current Conversion
Price and the date on which the right to convert such Notes or portions
thereof into Common Stock will expire. If fewer than all the Notes are to be
redeemed, the notice of redemption shall identify the Notes to be redeemed.
In case any Note is to be redeemed in part only, the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and
shall state that on and after the date fixed for redemption, upon surrender
of such Note, a new Note or Notes in principal amount equal to the unredeemed
portion thereof will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section, the Company will deposit with
the Trustee or with one or more paying agents (or, if the Company is acting
as its own paying agent, set aside, segregate and hold in trust as provided
in Section 5.4) an amount of money sufficient to redeem on the redemption
date all the Notes (or portions thereof) so called for redemption (other than
those theretofore surrendered for conversion into Common Stock) at the
appropriate redemption price, together with accrued interest to, but
excluding, the date fixed for redemption; provided that if such payment is
made on the redemption date it must be received by the Trustee or paying
agent, as the case may be, by 10:00 a.m. New York City time, on such date. If
any Note called for redemption is converted pursuant hereto, any money
deposited with the Trustee or any paying agent or so segregated and held in
trust for the redemption of such Note, including the Provisional Payment, if
any, shall be paid to the Company upon its request, or, if then held by the
Company shall be discharged from such trust.
If fewer than all the Notes are to be redeemed, the Company will
give the Trustee written notice in the form of an Officer's Certificate not
fewer than twenty-five (25) days (or such shorter period of time as may be
acceptable to the Trustee) prior to the redemption date as to the aggregate
principal amount of Notes to be redeemed. If fewer than all the Notes are to
be redeemed, the Trustee shall select the Notes or portions thereof to be
redeemed (in principal amounts of $1,000 or integral multiples thereof), on a
pro rata basis, or by a method the Trustee considers fair and appropriate (as
long as such method is not prohibited by the rules of any United States
national securities exchange or of an established automated over-the-counter
trading market in the United States on which the Notes are then listed). If
any Note selected for partial redemption is converted in part after such
selection, the converted portion of such Note shall be deemed (so far as is
possible) to be the portion to be selected for redemption. The Notes (or
portions thereof) so selected shall be deemed duly selected for redemption
for all purposes hereof, notwithstanding that any such Note is converted as a
whole or in part before the mailing of the notice of redemption.
Upon any redemption of less than all Notes, the Company and the
Trustee may (but need not) treat as outstanding any Notes surrendered for
conversion during the period of fifteen (15) days next preceding the mailing
of a notice of redemption and may (but need not) treat as not outstanding any
Note authenticated and delivered during such period in exchange for the
unconverted portion of any Note converted in part during such period.
Section 3.3 Payment of Notes Called for Redemption. If notice of
redemption has been given as above provided, the Notes or portion of Notes
with respect to which such notice has been given shall, unless 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 notice at the applicable redemption
price, together with the Provisional Payment, if any, and interest accrued
to, but excluding, the date fixed for redemption, and on and after said date
(unless the Company shall default in the payment of such Notes at the
redemption price, together with the Provisional Payment, if any, and interest
accrued to, but excluding, said date) interest on the Notes or portion of
Notes so called for redemption shall cease to accrue and such Notes shall
cease after the close of business on the Business Day next preceding the date
fixed for redemption to be convertible into Common Stock and, except as
provided in Sections 8.5 and 13.4, to be entitled to any benefit or security
under this Indenture, and the holders thereof shall have no right in respect
of such Notes except the right to receive the redemption price thereof and
unpaid interest to, but excluding, the date fixed for redemption. On
presentation and surrender of such Notes at a place of payment specified in
said notice, the said Notes or the specified portions thereof to be redeemed
shall be paid and redeemed by the Company at the applicable redemption price,
together with the Provisional Payment, if any, and interest accrued thereon
to, but excluding, the date fixed for redemption; provided that, if the
applicable redemption date is an interest payment date, the semi-annual
payment of interest becoming due on such date shall be payable to the holders
of such Notes registered as such on the relevant record date subject to the
terms and provisions of Section 2.3 hereof.
Upon presentation of any Note redeemed in part only, the Company
shall execute and the Trustee shall authenticate and deliver to the holder
thereof, at the expense of the Company, a new Note or Notes, of authorized
denominations, in principal amount equal to the unredeemed portion of the
Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any
Notes or mail any notice of optional redemption during the continuance of a
default in payment of interest or premium on the Notes or of any Event of
Default of which, in the case of any Event of Default other than under
Section 7.1(a), (b) or (e), a Responsible Officer of the Trustee has actual
knowledge. If any Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and premium, if any, shall,
until paid or duly provided for, bear interest from the date fixed for
redemption at the rate borne by the Note and such Note shall remain
convertible into Common Stock until the principal and premium, if any, shall
have been paid or duly provided for.
Section 3.4 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes not converted prior to the expiration of
such conversion right by an agreement with one or more investment bankers or
other purchasers to purchase such Notes by paying to the Trustee in trust for
the Noteholders, on or before the date fixed for redemption, an amount not
less than the applicable redemption price, together with the Provisional
Payment, if any, and interest accrued to the date fixed for redemption, of
such Notes. Notwithstanding anything to the contrary contained in this
Article III, the obligation of the Company to pay the redemption price of
such Notes, together with the Provisional Payment, if any, and interest
accrued to, but excluding, the date fixed for redemption, 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, certified
as true and correct by the Secretary or Assistant Secretary of the Company
will be filed with the Trustee prior to the date fixed for redemption, any
Notes not duly surrendered for conversion by the holders thereof may, at the
option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such holders and (notwithstanding anything
to the contrary contained in Article XV) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the date
fixed for redemption (and the right to convert any such Notes shall be deemed
to have been extended through such time), subject to payment of the above
amount as aforesaid. At the direction of the Company, the Trustee shall hold
and dispose of any such amount paid to it in the same manner as it would
monies deposited with it by the Company for the redemption of Notes. Without
the Trustee's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any Notes shall increase
or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such
arrangement for the purchase and conversion of any Notes between the Company
and such purchasers, including the costs and expenses incurred by the Trustee
in the defense of any claim or liability arising out of or in connection with
the exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE IV
[Intentionally Omitted.]
ARTICLE V
PARTICULAR COVENANTS OF THE COMPANY
Section 5.1 Payment of Principal, Premium and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of and premium, if any, and interest on each of the Notes at
the places, at the respective times and in the manner provided herein and in
the Notes. Liquidated damages paid pursuant to Section 15.2 hereof, if any,
shall be paid within ten (10) Business Days of the date from which such
liquidated damages accrued pursuant to Section 15.2. Liquidated Damages on
the Notes paid pursuant to Section 3(e) of the Registration Rights Agreement,
if any, shall be paid at the times and in the manner provided therein. Each
installment of interest on the Notes due on any semi-annual interest payment
date may be paid by mailing checks for the interest payable to or upon the
written order of the holders of Notes entitled thereto as they shall appear
on the registry books of the Company, provided that, with respect to any
holder of Notes with an aggregate principal amount equal to or in excess of
$500,000, at the request of such holder in writing to the Company, interest
on such holder's Notes shall be paid by wire transfer in immediately
available funds in accordance with the wire transfer instructions supplied by
such holder from time to time to the Trustee and paying agent (if different
from Trustee) at least two days prior to the applicable record date.
Section 5.2 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or
agency where the Notes may be presented for registration of transfer or
exchange or for presentation for payment or for conversion, redemption or
repurchase and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of such office or agency not designated or appointed by the
Trustee. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office or the office or agency of the Trustee
in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided that no such designation or rescission shall in any manner relieve
the Company of its obligation to maintain an office or agency in the Borough
of Manhattan, The City of New York, for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby initially designates the Trustee as paying agent,
Note registrar and conversion agent and the Corporate Trust Office and the
office or agency of the Trustee in the Borough of Manhattan, The City of New
York (which initially shall be The Bank of New York, located at 000 Xxxxxxx
Xxxxxx, Xxxxx 00X, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration, as one such office or agency of the Company for each of the
aforesaid purposes.
So long as the Trustee is the Note registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 8.10(a) and the
third paragraph of Section 8.11.
Section 5.3 Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 8.10, a Trustee, so
that there shall at all times be a Trustee hereunder.
Section 5.4 Provisions as to Paying Agent.
(a) If the Company shall appoint a paying agent other than the
Trustee or if the Trustee shall appoint such a paying agent, it will cause
such paying agent to execute and deliver to the Trustee an instrument in
which such agent shall agree with the Trustee, subject to the provisions of
this Section 5.4:
(1) that it will hold all sums held by it as such agent for
the payment of the principal of and premium, if any, or interest
(including Liquidated Damages, if any) on the Notes (whether such
sums have been paid to it by the Company or by any other obligor on
the Notes) in trust for the benefit of the holders of the Notes;
(2) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Notes) to make any payment
of the principal of and premium, if any, or interest (including
Liquidated Damages, if any) on the Notes when the same shall be due
and payable; and
(3) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it will forthwith pay to the
Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal of,
premium, if any, or interest on the Notes, deposit with the paying agent a
sum sufficient to pay such principal, premium, if any, or interest, and
(unless such paying agent is the Trustee) the Company will promptly notify
the Trustee of any failure to take such action, provided that if such deposit
is made on the due date, such deposit must be received by the paying agent by
10:00 a.m., New York City time, on such date.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, premium, if any, or interest
(including Liquidated Damages, if any) on the Notes, set aside, segregate and
hold in trust for the benefit of the holders of the Notes a sum sufficient to
pay such principal, premium, if any, or interest (including Liquidated
Damages, if any) so becoming due and will notify the Trustee of any failure
to take such action and of any failure by the Company (or any other obligor
under the Notes) to make any payment of the principal of, premium, if any, or
interest (including Liquidated Damages, if any) on the Notes when the same
shall become due and payable.
(c) Anything in this Section 5.4 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by the Company or any paying agent
hereunder as required by this Section 5.4, such sums to be held by the
Trustee upon the trusts herein contained and upon such payment by the Company
or any paying agent to the Trustee, the Company or such paying agent shall be
released from all further liability with respect to such sums.
(d) Anything in this Section 5.4 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 5.4 is
subject to Sections 13.3 and 13.4.
Section 5.5 Existence. Subject to Article XII, the Company will do
or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence.
Section 5.6 Information Requirement. Within the period prior to the
expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), the Company
covenants and agrees that it shall, during any period in which it is not
subject to Section 13 or 15(d) under the Exchange Act, make available to any
holder or beneficial holder of Notes or any Common Stock issued upon
conversion thereof, in each case which continue to be Restricted Securities,
in connection with any sale thereof and any prospective purchaser of Notes or
such Common Stock from such holder or beneficial holder, the information
required pursuant to Rule 144A(d)(4) under the Securities Act upon the
request of any holder or beneficial holder of the Notes or such Common Stock
and it will take such further action as any holder or beneficial holder of
such Notes or such Common Stock may reasonably request.
Section 5.7 Stay, Extension and Usury Laws. The Company covenants
(to the extent that it may lawfully do so) that it shall not at any time
insist upon, plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension or usury law or other law that would
prohibit or forgive the Company from paying all or any portion of the
principal of or interest on the Notes as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and the Company (to the
extent it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not, by resort to any
such law, hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power
as though no such law has been enacted.
Section 5.8 Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on January 31, 2002) an Officer's
Certificate stating whether or not to the best of their knowledge the signers
know of any default or Event of Default that occurred during such period. If
they do, such Officer's Certificate shall describe the default or Event of
Default and its status.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the occurrence
of any Event of Default or an event which, with notice or the lapse of time
or both, would constitute an Event of Default, an Officer's Certificate
setting forth the details of such Event of Default or default and the action
which the Company proposes to take with respect thereto.
Section 5.9 Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Section 5.10 Limitation on Dividends and Distributions. So long as
$12,937,500.00 or more in aggregate principal amount of the Notes remain
outstanding, the Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly: (i) declare or pay any dividend on,
or make any distribution with respect to, its Common Stock or the common
stock of any of its Subsidiaries (other than such dividends or distributions
by the Company made in Common Stock or of rights pursuant to any
stockholders' rights plan adopted by the Company); or (ii) purchase, redeem
or otherwise acquire for value any such Common Stock or any such Subsidiary's
common stock; provided, however, that the foregoing provisions shall not
prohibit (A) the Company's compliance with Section 1.4(b) of that certain
Investment Agreement, dated as of June 9, 2000, by and between the Company
and America Online, Inc., as amended as of September 11, 2000 and as of
January 30, 2001, pursuant to which the Company may be required to repurchase
shares of Common Stock held by America Online, Inc.; (B) the repurchase,
redemption or other acquisition for value of any Common Stock in exchange
for, or out of the net cash proceeds of the substantially concurrent sale of,
other Equity Interests of the Company; (C) the repurchase, redemption or
other acquisition for value of any Common Stock held by any employee,
consultant or director of the Company or any of its Subsidiaries pursuant to
any stock option plan or restricted stock plan, or any employee, consultant,
director or management equity subscription agreement or stock option
agreement, approved by the Board of Directors, (D) dividends or distributions
by any such Subsidiary to the Company or to another such Subsidiary; or (E)
dividends or distributions by any such Subsidiary to any other holder of its
common stock made pro rata to all holders of such Subsidiary's common stock.
Section 5.11 Limitation on Incurrence of Indebtedness of
Subsidiaries. The Company shall not permit any of its Subsidiaries to create,
incur, issue, assume, guarantee or otherwise become liable (including as a
result of an acquisition of property or any person, any of the foregoing, an
"Incurrence"), contingently or otherwise, with respect to any Indebtedness in
an amount exceeding $5,000,000. The foregoing shall not prohibit (i) the
Incurrence by a Subsidiary of the Company of any Indebtedness to the Company
or any other Subsidiary of the Company or (ii) the Incurrence of Indebtedness
by any Subsidiary of the Company to refund, refinance or repurchase
outstanding Indebtedness of a Subsidiary, provided that there is not
outstanding immediately thereafter Indebtedness of Subsidiaries in an
aggregate amount exceeding $5,000,000.
ARTICLE VI
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 6.1 Noteholders' Lists. The Company covenants and agrees
that it will furnish or cause to be furnished to the Trustee, semi-annually,
not more than fifteen (15) days after each August 15 and February 15 in each
year beginning with February 15, 2002 and at such other times as the Trustee
may request in writing, within thirty (30) days after receipt by the Company
of any such request (or such lesser time as the Trustee may reasonably
request in order to enable it to timely provide any notice to be provided by
it hereunder), a list in such form as the Trustee may reasonably require of
the names and addresses of the holders of Notes as of a date not more than
fifteen (15) days (or such other date as the Trustee may reasonably request
in order to so provide any such notices) prior to the time such information
is furnished, except that no such list need be furnished so long as the
Trustee is acting as Note registrar.
Section 6.2 Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
holders of Notes contained in the most recent list furnished to it as
provided in Section 6.1 or maintained by the Trustee in its capacity as Note
registrar, if so acting. The Trustee may destroy any list furnished to it as
provided in Section 6.1 upon receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with other holders of
Notes with respect to their rights under this Indenture or under the Notes
and the corresponding rights and duties of the Trustee, shall be as provided
by the Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure
of information as to names and addresses of holders of Notes made pursuant to
the Trust Indenture Act.
Section 6.3 Reports by Trustee.
(a) After this Indenture has been qualified under the Trust
Indenture Act, the Trustee shall transmit to holders of Notes 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. If required by Section 313(a) of the Trust
Indenture Act, the Trustee shall, within sixty days after each January 15
following the date of this Indenture deliver to holders a brief report, dated
as of such January 15 which complies with the provisions of such Section
313(a). (b) A copy of such report shall, at the time of such transmission to
holders of Notes, be filed by the Trustee with each stock exchange and
automated quotation system upon which the Notes are listed and with the
Company. The Company will notify the Trustee as soon as practicable when the
Notes are listed on any stock exchange or automated quotation system and when
any such listing is discontinued.
Section 6.4 Reports by Company.
(a) After this Indenture has been qualified under the Trust
Indenture Act, the Company shall file with the Trustee and the Commission,
and transmit to holders of Notes, such information, documents and other
reports and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be filed with the Trustee within 15 days after the same is so required to be
filed with the Commission.
(b) During any period in which the Company is not subject to Section
13 or 15(d) under the Exchange Act, the Company will deliver to the Trustee
(a) as soon as available and in any event within ninety (90) days after the
end of each fiscal year of the Company (i) a consolidated balance sheet of
the Company and its subsidiaries as of the end of such fiscal year and the
related consolidated statements of operations, stockholders' equity and cash
flows for such fiscal year, all reported on by an independent public
accountant of nationally recognized standing and (ii) a report containing a
management's discussion and analysis of the financial condition and results
of operations and a description of the business and properties of the Company
and (b) as soon as available and in any event within forty-five (45) days
after the end of each of the first three quarters of each fiscal year of the
Company (i) an unaudited consolidated management's discussion and analysis of
the financial condition and results of operations of the Company for such
quarter; provided that the foregoing statements and reports shall not be
required for any fiscal year or quarter, as the case may be, with respect to
which the Company files or expects to file with the Trustee an annual report
or quarterly report, as the case may be, pursuant to the preceding paragraph
of this Section 6.4. Delivery of such reports, information and documents to
the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officer's Certificates).
ARTICLE VII
DEFAULTS AND REMEDIES
Section 7.1 Events of Default. In case one or more of the following
Events of Default (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) shall have occurred
and be continuing:
(a) default in the payment of the principal of and premium
(including, without limitation, the Provisional Payment), if any, on
any of the Notes as and when the same shall become due and payable
either at maturity or in connection with any redemption, by
declaration or otherwise; or
(b) default for thirty (30) days in the payment of any
installment of interest or Liquidated Damages, if any, upon any of
the Notes as and when the same shall become due and payable; or
(c) failure by the Company to deliver shares of Common Stock
required to be delivered upon conversion of a Note in accordance
with Article XV within thirty (30) calendar days of such Conversion
Date; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants on the part of the Company in the
Notes or in this Indenture (other than a covenant a default in whose
performance or whose breach is elsewhere in this Section
specifically dealt with) and the continuance of such failure for a
period of sixty (60) days after the date on which written notice of
such failure, requiring the Company to remedy the same, shall have
been given to the Company by the Trustee, or to the Company and a
Responsible Officer of the Trustee by the holders of at least 25% in
aggregate principal amount of the outstanding Notes at the time
outstanding determined in accordance with Section 9.4; or
(e) a default in the payment of the Repurchase Price in
respect of any Note on the repurchase date therefor in accordance
with the provisions of Article XVI; or
(f) failure on the part of the Company to provide a written
notice of a Repurchase Event in accordance with Section 16.2; or
(g) failure on the part of the Company or any Significant
Subsidiary to make any payment at maturity, including any applicable
grace period, in respect of Indebtedness of, or guaranteed or
assumed by, the Company or any Significant Subsidiary, in a
principal amount then outstanding in excess of U.S. $5,000,000, and
the continuance of such failure for a period of thirty (30) days
after there shall have been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by
the holders of not less than 25% in aggregate principal amount of
the Notes then outstanding, a written notice specifying such default
and requiring the Company to cause such default to be cured or
waived and stating that such notice is a "Notice of Default"
hereunder; or
(h) default on the part of the Company or any Significant
Subsidiary with respect to any Indebtedness of, or guaranteed or
assumed by, the Company or any Significant Subsidiary, which default
results in the acceleration of Indebtedness in a principal amount
then outstanding in excess of U.S. $5,000,000, and such Indebtedness
shall not have been discharged or such acceleration shall not have
been rescinded or annulled for a period of thirty (30) days after
there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the
holders of not less than 25% in aggregate principal amount of the
Notes then outstanding, a written notice specifying such default and
requiring the Company to cause such Indebtedness to be discharged or
cause such default to be cured or waived or such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
(i) the Company or any Significant Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced
against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become
due; or
(j) an involuntary case or other proceeding shall be commenced
against the Company or any Significant Subsidiary seeking
liquidation, reorganization or other relief with respect to it or
its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or
any substantial part of its property, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period
of ninety (90) consecutive days;
then, and in each and every such case (other than an Event of Default
specified in Section 7.1(i) or (j) with respect to the Company), unless the
principal of all of the Notes shall have already become due and payable,
either the Trustee or the holders of not less than 25% in aggregate principal
amount of the Notes then outstanding hereunder determined in accordance with
Section 9.4, by notice in writing to the Company (and to the Trustee if given
by Noteholders), may declare the principal of and premium, if any, on all the
Notes and the interest accrued thereon (including Liquidated Damages to the
extent accrued and unpaid) to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Notes contained to the contrary
notwithstanding. If an Event of Default specified in Section 7.1(i) or (j)
occurs and is continuing with respect to the Company, the principal of all
the Notes and the interest accrued thereon shall be immediately due and
payable. Notwithstanding the foregoing if, at any time after the principal of
the Notes shall have been so declared due and payable, and before any
judgment or decree for the payment of the monies due shall have been obtained
or entered as hereinafter provided, the Company shall pay or shall deposit
with the Trustee a sum sufficient to pay all matured installments of interest
upon all Notes and the principal of and premium, if any, on any and all Notes
which shall have become due otherwise than by acceleration (with interest on
overdue installments of interest (to the extent that payment of such interest
is enforceable under applicable law) and on such principal and premium, if
any, at the rate borne by the Notes, to the date of such payment or deposit)
and amounts due to the Trustee pursuant to Section 8.6, and if any and all
defaults under this Indenture, other than the nonpayment of principal of and
premium, if any, and accrued interest on Notes which shall have become due by
acceleration, shall have been cured or waived pursuant to Section 7.7, then
and in every such case the holders of a majority in aggregate principal
amount of the Notes then outstanding, by written notice to the Company and to
the Trustee, may waive all defaults or Events of Default and rescind and
annul such declaration and its consequences; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent default or Event
of Default, or shall impair any right consequent thereon. The Company shall
notify the Responsible Officer of the Trustee, promptly upon becoming aware
thereof, of any default or Event of Default and shall deliver to the Trustee
a statement specifying such default or Event of Default and the action the
Company has taken, is taking or proposes to take with respect thereto.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such
case the Company, the holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the Company, the holders of Notes, and the Trustee
shall continue as though no such proceeding had been instituted.
Section 7.2 Payments of Notes on Default; Suit Therefor. The Company
covenants that (a) in case default shall be made in the payment by the
Company of any installment of interest upon any of the Notes as and when the
same shall become due and payable, and such default shall have continued for
a period of thirty (30) days, or (b) in case default shall be made in the
payment of the principal of or premium, if any, on any of the Notes as and
when the same shall have become due and payable, whether at maturity of the
Notes or in connection with any redemption or repurchase, by declaration
under this Indenture or otherwise, then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the holders of the Notes,
the whole amount that then shall have become due and payable on all such
Notes for principal and premium, if any, or interest, or both, as the case
may be, with interest upon the overdue principal and premium, if any, and (to
the extent that payment of such interest is enforceable under applicable law)
upon the overdue installments of interest at the rate borne by the Notes;
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including reasonable compensation to
the Trustee, its agents, attorneys and counsel, and any expenses or
liabilities incurred by the Trustee hereunder other than through its
negligence or bad faith. Until such demand by the Trustee, the Company may
pay the principal of and premium, if any, and interest on the Notes to the
registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at
law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceeding to judgment or final decree, and may
enforce any such judgment or final decree against the Company or any other
obligor on the Notes and collect in the manner provided by law out of the
property of the Company or any other obligor on the Notes wherever situated
the monies adjudged or decreed to be payable.
In the case there shall be pending proceedings for the bankruptcy or
for the reorganization of the Company or any other obligor on the Notes under
Title 11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company
or such other obligor, or in the case of any other judicial proceedings
relative to the Company or such other obligor upon the Notes, or to the
creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand pursuant to the provisions
of this Section 7.2, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, and interest (including Liquidated
Damages, if any) owing and unpaid in respect of the Notes, and, in case of
any judicial proceedings, to file such proofs of claim and other papers or
documents and to take such other actions as it may deem necessary or
advisable in order to have the claims of the Trustee and of the Noteholders
allowed in such judicial proceedings relative to the Company or any other
obligor on the Notes, its or their creditors, or its or their property, and
to collect and receive any monies or other property payable or deliverable on
any such claims, and to distribute the same after the deduction of any
amounts due the Trustee under Section 8.6; and any receiver, assignee or
trustee in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby authorized by each of the Noteholders to make such
payments to the Trustee, and, in the event that the Trustee shall consent to
the making of such payments directly to the Noteholders, to pay to the
Trustee any amount due it for reasonable compensation, expenses, advances and
disbursements, including agents and counsel fees incurred by it up to the
date of such distribution. To the extent that such payment of reasonable
compensation, expenses, advances and disbursements out of the estate in any
such proceedings shall be denied for any reason, payment of the same shall be
secured by a lien on, and shall be paid out of, any and all distributions,
dividends, monies, securities and other property which the holders of the
Notes may be entitled to receive in such proceedings, whether in liquidation
or under any plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Trustee without the
possession of any of the Notes, or the production thereof on any trial or
other proceeding relative thereto, and any such suit or proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express
trust, and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the holders of
the Notes.
In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the
holders of the Notes, and it shall not be necessary to make any holders of
the Notes parties to any such proceedings.
Section 7.3 Application of Monies Collected by Trustee. Any monies
collected by the Trustee pursuant to this Article VII shall be applied in the
following order, at the date or dates fixed by the Trustee for the
distribution of such monies, upon presentation of the several Notes, and
stamping thereon the payment, if only partially paid, and upon surrender
thereof, if fully paid:
First: To the payment of all amounts due the Trustee under
Section 8.6;
Second: In case the principal of the outstanding Notes
shall not have become due and be unpaid, to the payment of interest
on the Notes in default in the order of the maturity of the
installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate borne by the Notes, such
payments to be made ratably to the persons entitled thereto;
Third: In case the principal of the outstanding Notes shall
have become due, by declaration or otherwise, and be unpaid, to the
payment of the whole amount then owing and unpaid upon the Notes for
principal and premium, if any, and interest, with interest on the
overdue principal and premium, if any, and (to the extent that such
interest has been collected by the Trustee) upon overdue
installments of interest at the rate borne by the Notes; and in case
such monies shall be insufficient to pay in full the whole amounts
so due and unpaid upon the Notes, then to the payment of such
principal and premium, if any, and interest without preference or
priority of principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of any installment
of interest over any other installment of interest, or of any Note
over any other Note, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest; and
Fourth: To the payment of the remainder, if any, to
the Company.
Section 7.4 Proceedings by Noteholder. No holder of any Note shall
have any right by virtue of or by availing of any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under
or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official, or for any other
remedy hereunder, unless such holder previously shall have given to the
Trustee written notice of an Event of Default and of the continuance thereof,
as hereinbefore provided, and unless also the holders of not less than 25% in
aggregate principal amount of the Notes then outstanding shall have made
written request upon the Trustee to institute such action, suit or proceeding
in its own name as Trustee hereunder and shall have offered to the Trustee
such indemnity as may be reasonably satisfactory to the Trustee against the
costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee for sixty (60) days after its receipt of such notice, request and
offer of indemnity, shall have neglected or refused to institute any such
action, suit or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 7.7; it
being understood and intended, and being expressly covenanted by the taker
and holder of every Note with every other taker and holder and the Trustee,
that no one or more holders of Notes 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 holder of Notes, or to
obtain or seek to obtain priority over or preference to any other such
holder, or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all holders
of Notes (except as otherwise provided herein). For the protection and
enforcement of this Section 7.4, each and every Noteholder and the Trustee
shall be entitled to such relief as can be given either at law or in equity.
Notwithstanding any other provision of this Indenture and any
provision of any Note, the right of any holder of any Note to receive payment
of the principal of and premium, if any, and interest (including Liquidated
Damages to the extent accrued but unpaid) on such Note, on or after the
respective due dates expressed in such Note, or to institute suit for the
enforcement of any such payment on or after such respective dates against the
Company shall not be impaired or affected without the consent of such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, in his own behalf and for his own
benefit, may enforce, and may institute and maintain any proceeding suitable
to enforce, his rights of conversion as provided herein.
Section 7.5 Proceedings by Trustee. In case of an Event of Default
the Trustee may in its discretion proceed to protect and enforce the rights
vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant
or agreement contained in this Indenture or in aid of the exercise of any
power granted in this Indenture, or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Section 7.6 Remedies Cumulative and Continuing. Except as provided
in the last paragraph of Section 2.6, all powers and remedies given by this
Article VII to the Trustee or to the Noteholders shall, to the extent
permitted by law, be deemed cumulative and not exclusive of any thereof or of
any other powers and remedies available to the Trustee or the holders of the
Notes, by judicial proceedings or otherwise, to enforce the performance or
observance of the covenants and agreements contained in this Indenture, and
no delay or omission of the Trustee or of any holder of any of the Notes to
exercise any right or power accruing upon any default or Event of Default
occurring and continuing as aforesaid shall impair any such right or power,
or shall be construed to be a waiver of any such default or any acquiescence
therein; and, subject to the provisions of Section 7.4, every power and
remedy given by this Article VII or by law to the Trustee or to the
Noteholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Noteholders.
Section 7.7 Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders. The holders of a majority in aggregate principal
amount of the Notes at the time outstanding determined in accordance with
Section 9.4 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, however,
that (a) such direction shall not be in conflict with any rule of law or with
this Indenture, and (b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction. The holders of
not less than a majority in aggregate principal amount of the Notes at the
time outstanding determined in accordance with Section 9.4 may on behalf of
the holders of all of the Notes waive any past default or Event of Default
hereunder and its consequences except (i) a default in the payment of
interest or premium, if any, on, or the principal of, the Notes when due,
(ii) a failure by the Company to convert any Notes into Common Stock or (iii)
a default in respect of a covenant or provisions hereof which under Article
XI cannot be modified or amended without the consent of all affected holders
of Notes then outstanding. Upon any such waiver the Company, the Trustee and
the holders of the Notes shall be restored to their former positions and
rights hereunder; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon. Whenever
any default or Event of Default hereunder shall have been waived as permitted
by this Section 7.7, said default or Event of Default shall for all purposes
of the Notes and this Indenture be deemed to have been cured and to be not
continuing; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
Section 7.8 Notice of Defaults. The Trustee shall, within ninety
(90) days after the occurrence of a default, mail to all Noteholders, as the
names and addresses of such holders appear upon the Note register, notice of
all defaults actually known to a Responsible Officer, unless such defaults
shall have been cured or waived before the giving of such notice; and
provided that, except in the case of default in the payment of the principal
of, or premium, if any, or interest (including Liquidated Damages to the
extent accrued but unpaid) on any of the Notes, including without limiting
the generality of the foregoing any default in the payment of any Repurchase
Price or in the payment of any amount due in connection with any redemption
of Notes, then in any such event the Trustee shall be protected in
withholding such notice if and so long as a trust committee of directors
and/or Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interests of the Noteholders.
Section 7.9 Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Note by his acceptance thereof shall be deemed
to have agreed, that any court may, in its discretion, require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the
costs of such suit and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; provided that
the provisions of this Section 7.9 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Noteholder, or group of
Noteholders, holding in the aggregate more than 10% in principal amount of
the Notes at the time outstanding determined in accordance with Section 9.4,
or to any suit instituted by any Noteholder for the enforcement of the
payment of the principal of or premium, if any, or interest (including
Liquidated Damages to the extent accrued but unpaid) on any Note (including,
but not limited to, the redemption price or repurchase price with respect to
the Notes being redeemed or repurchased as provided in this Indenture) on or
after the due date expressed in such Note or to any suit for the enforcement
of the right to convert any Note in accordance with the provisions of Article
XV.
Section 7.10 Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any holder of any Note 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 or by law to the Trustee or to
the holders of Notes may be exercised from time to time, and as often as may
be deemed expedient, by the Trustee or by the holders of Notes, as the case
may be.
ARTICLE VIII
CONCERNING THE TRUSTEE
Section 8.1 Duties and Responsibilities of Trustee. The Trustee,
prior to the occurrence of an Event of Default and after the curing or waiver
of all Events of Default that may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
In case an Event of Default has occurred (which has not been cured or waived)
the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and 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.
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
(a) prior to the occurrence of an Event of Default and after
the curing or waiving of all Events of Default that may have
occurred:
(1) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture
and, after it has been qualified thereunder, the Trust
Indenture Act, and the Trustee shall not be liable except for
the performance of such duties and obligations as are
specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture and
the Trust Indenture Act against the Trustee; and
(2) in the absence of bad faith and willful misconduct
on the part of the Trustee, the Trustee may conclusively rely,
as to the truth of the statements and the correctness of the
opinions expressed therein, upon any certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; provided, however, in the case of any such
certificates or opinions that by any provisions hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer or Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(c) the Trustee shall not be liable to any Noteholder with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the holders of not less
than a majority in principal amount of the Notes at the time
outstanding determined as provided in Section 9.4 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; and
(d) whether or not therein provided, every provision of this
Indenture relating to the conduct or affecting the liability of, or
affording protection to, the Trustee shall be subject to the
provisions of this Section.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
Section 8.2 Reliance on Documents, Opinions, Etc. Except as
otherwise provided in Section 8.1:
(a) the Trustee may conclusively rely and shall be protected
in acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, note, coupon
or other paper or document believed by it in good faith to be
genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of
Directors may be evidenced to the Trustee by a copy thereof
certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its selection,
and any advice of such counsel or Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken or omitted by it hereunder in good faith and in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request, order or direction of any of the Noteholders pursuant to
the provisions of this Indenture, unless such Noteholders shall have
offered to the Trustee reasonable security or indemnity reasonably
satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
provided, however, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the
opinion of the Trustee, not reasonably assured to the Trustee by the
security afforded to it by the terms of this Indenture, the Trustee
may require indemnity reasonably satisfactory to the Trustee from
the Noteholders against such expenses or liability as a condition to
so proceeding; the reasonable expenses of every such examination
shall be paid by the Company or, if paid by the Trustee or any
predecessor Trustee, shall be repaid by the Company upon demand;
(f) 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 by it with due care hereunder;
(g) 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 be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(h) the Trustee shall not be deemed to have notice of any
default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice
references the Notes and this Indenture; and
(i) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and to each
agent, custodian and other Person employed to act hereunder.
In no event shall the Trustee be liable for any consequential loss or damage
of any kind whatsoever (including but not limited to lost profits), even if
the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action other than through the Trustee's willful
misconduct or gross negligence.
Section 8.3 No Responsibility for Recitals, Etc. The recitals
contained herein and in the Notes (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the
Trustee assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes. The Trustee shall not be accountable for the use
or application by the Company of any Notes or the proceeds of any Notes
authenticated and delivered by the Trustee in conformity with the provisions
of this Indenture.
Section 8.4 Trustee, Paying Agents, Conversion Agents or Registrar
May Own Notes. The Trustee, any paying agent, any conversion agent or Note
registrar, in its individual or any other capacity, may become the owner or
pledgee of Notes with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Note registrar.
Section 8.5 Monies to be Held in Trust. Subject to the provisions of
Section 13.4, all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except
as may be agreed in writing from time to time by the Company and the Trustee.
Section 8.6 Compensation and Expenses of Trustee. The Company
covenants and agrees to pay to the Trustee from time to time, and the Trustee
shall be entitled to, such compensation as the Company and the Trustee shall
from time to time agree in writing for all services rendered by it hereunder
in any capacity (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust), and the Company will
pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel and of all persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence, willful
misconduct or bad faith. The Company also covenants to indemnify the Trustee
or any predecessor Trustee in any capacity under this Indenture and its
agents and any authenticating agent for, and to hold them harmless against,
any and all loss, damages, claims, liability or expense incurred without
negligence, willful misconduct or bad faith on the part of the Trustee or
such agent or authenticating agent, as the case may be, and arising out of or
in connection with the acceptance or administration of this trust or in any
other capacity hereunder, including the costs and expenses of defending
themselves against any claim (whether asserted by the Company, a Holder or
any other Person) of liability in the premises. The obligations of the
Company under this Section 8.6 to compensate or indemnify the Trustee and to
pay or reimburse the Trustee for expenses, disbursements and advances shall
be secured by a lien upon all property and funds held or collected by the
Trustee as such, except, subject to the effect of Sections 4.3 and 7.5, funds
held in trust herewith for the benefit of the holders of particular Notes
prior to the date of the accrual of such unpaid compensation or indemnifiable
claim. The obligation of the Company under this Section shall survive the
satisfaction and discharge of this Indenture. The indemnification provided in
this Section 8.6 shall extend to the officers, directors, agents and
employees of the Trustee.
When the Trustee and its agents and any authenticating agent incur
expenses or render services after an Event of Default specified in Section
7.1(i) or (j) occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any bankruptcy,
insolvency or similar laws.
Section 8.7 Officer's Certificate as Evidence. Except as otherwise
provided in Section 8.1, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or omitting any action hereunder,
such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence, willful misconduct,
recklessness and bad faith on the part of the Trustee, be deemed to be
conclusively proved and established by an Officer's Certificate delivered to
the Trustee, and such Officer's Certificate, in the absence of negligence,
willful misconduct, recklessness and bad faith on the part of the Trustee,
shall be full warrant to the Trustee for any action taken or omitted by it
under the provisions of this Indenture upon the faith thereof.
Section 8.8 Conflicting Interests of Trustee. After qualification
under the Trust Indenture Act, if the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the
Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.
Section 8.9 Eligibility of Trustee. There shall at all times be a
Trustee hereunder that shall be a person that is eligible pursuant to the
Trust Indenture Act to act as such and has a combined capital and surplus
(together with its corporate parent) of at least $50,000,000. If such person
publishes reports of condition at least annually, pursuant to law or to the
requirements of any supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 8.10 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written
notice of such resignation to the Company and by mailing notice
thereof to the holders of Notes at their addresses as they shall
appear on the Note register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee
by written instrument, in duplicate, executed by order of the Board
of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee. If no
successor trustee shall have been so appointed and have accepted
appointment sixty (60) days after the mailing of such notice of
resignation to the Noteholders, the resigning Trustee may, at the
expense of the Company, petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Noteholder who
has been a bona fide holder of a Note or Notes for at least six
months may, subject to the provisions of Section 7.9, on behalf of
himself and all others similarly situated, petition any such court
for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(1) the Trustee shall fail to comply with Section 8.8
within a reasonable time after written request therefor by
the Company or by any Noteholder who has been a bona fide
holder of a Note or Notes for at least six months, or
(2) the Trustee shall cease to be eligible in
accordance with the provisions of Section 8.9 and shall fail
to resign after written request therefor by the Company or by
any such Noteholder, or
(3) the Trustee shall become incapable of acting, or
shall be adjudged a bankrupt or insolvent, or a receiver of
the Trustee or of its property shall be appointed, or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, the Company may by a Board resolution remove
the Trustee and appoint a successor trustee by written instrument,
in duplicate, executed by order of the Board of Directors, one copy
of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of
Section 7.9, any Noteholder who has been a bona fide holder of a
Note or Notes 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. Such court may thereupon, after such notice, if
any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount
of the Notes at the time outstanding may at any time remove the
Trustee and nominate a successor trustee which shall be deemed
appointed as successor trustee unless within ten (10) days after
notice to the Company of such nomination the Company objects
thereto, in which case the Trustee so removed or any Noteholder,
upon the terms and conditions and otherwise as in Section 8.10(a)
provided, may, at the expense of the Company, petition any court of
competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this
Section 8.10 shall become effective upon acceptance of appointment
by the successor trustee as provided in Section 8.11.
Section 8.11 Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 8.10 shall execute, acknowledge and deliver
to the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with
like effect as if originally named as trustee herein; but, nevertheless, on
the written request of the Company or of the successor trustee, the trustee
ceasing to act shall, upon payment of any amounts then due it pursuant to the
provisions of Section 8.6, execute and deliver an instrument transferring to
such successor trustee all the rights and powers of the trustee so ceasing to
act. Upon request of any such successor trustee, the Company shall execute
any and all instruments in writing for more fully and certainly vesting in
and confirming to such successor trustee all such rights and powers. Any
trustee ceasing to act shall, nevertheless, retain a lien upon all property
and funds held or collected by such trustee as such, except for funds held in
trust for the benefit of holders of particular Notes, to secure any amounts
then due it pursuant to the provisions of Section 8.6.
No successor trustee shall accept appointment as provided in this
Section 8.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 8.8 and be eligible under
the provisions of Section 8.9.
Upon acceptance of appointment by a successor trustee as provided in
this Section 8.11, each of the Company and the former trustee shall mail or
cause to be mailed notice of the succession of such trustee hereunder to the
holders of Notes at their addresses as they shall appear on the Note
register. If the Company fails to mail such notice within ten (10) days after
acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of the Company.
Section 8.12 Succession by Merger, Etc. Any corporation or other
entity into which the Trustee may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
other entity succeeding to all or substantially all of the corporate trust
business of the Trustee (including the trust created by this Indenture),
shall be the successor to the Trustee hereunder without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, provided that in the case of any corporation succeeding to all or
substantially all of the corporate trust business of the Trustee such
corporation shall be qualified under the provisions of Section 8.8 and
eligible under the provisions of Section 8.9.
In case at the time such successor to the Trustee shall succeed to
the trusts created by this Indenture, any of the Notes shall have been
authenticated but not delivered, any such successor to the Trustee may adopt
the certificate of authentication of any predecessor trustee or
authenticating agent appointed by such predecessor trustee, and deliver such
Notes so authenticated; and in case at that time any of the Notes shall not
have been authenticated, any successor to the Trustee or an authenticating
agent appointed by such successor trustee may authenticate such Notes either
in the name of any predecessor trustee hereunder or in the name of the
successor trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Notes or in this Indenture provided
that the certificate of the Trustee shall have; provided, however, that the
right to adopt the certificate of authentication of any predecessor Trustee
or to authenticate Notes in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 8.13 Limitation on Rights of Trustee as Creditor. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Notes), after qualification under the Trust Indenture Act,
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of the claims against the Company (or any such other
obligor).
ARTICLE IX
CONCERNING THE NOTEHOLDERS
Section 9.1 Action by Noteholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand
or request, the giving of any notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action, the
holders of such specified percentage have joined therein may be evidenced (a)
by any instrument or any number of instruments of similar tenor executed by
Noteholders in person or by agent or proxy appointed in writing, or (b) by
the record of the holders of Notes voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article
X, or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Noteholders. Whenever the Company or the Trustee
solicits the taking of any action by the holders of the Notes, the Company or
the Trustee may fix in advance of such solicitation, a date as the record
date for determining holders entitled to take such action. The record date
shall be not more than fifteen (15) days prior to the date of commencement of
solicitation of such action.
Section 9.2 Proof of Execution by Noteholders. Subject to the
provisions of Sections 8.1, 8.2 and 10.5, proof of the execution of any
instrument by a Noteholder or his agent or proxy shall be sufficient if made
in accordance with such reasonable rules and regulations as may be prescribed
by the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the Note register or by a certificate of
the Note registrar. The record of any Noteholders' meeting shall be proved in
the manner provided in Section 10.6.
Section 9.3 Who Are Deemed Absolute Owners. The Company, the
Trustee, any authenticating agent, any paying agent, any conversion agent and
any Note registrar may deem the person in whose name such Note shall be
registered upon the Note register to be, and may treat him as, the absolute
owner of such Note (whether or not such Note shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of, premium,
if any, and interest (including Liquidated Damages to the extent accrued but
unpaid) on such Note, for conversion of such Note and for all other purposes;
and neither the Company nor the Trustee nor any authenticating agent nor any
paying agent nor any conversion agent nor any Note registrar shall be
affected by any notice to the contrary. All such payments so made to any
holder for the time being, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Note.
Section 9.4 Company-Owned Notes Disregarded. In determining whether
the holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent, waiver or other action under this
Indenture, Notes that are owned by the Company or any other obligor on the
Notes or by any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company or any other obligor
on the Notes shall be disregarded and deemed not to be outstanding for the
purpose of any such determination; provided that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, consent, waiver or other action only Notes which a Responsible
Officer actually knows are so owned shall be so disregarded. Notes so owned
which have been pledged in good faith may be regarded as outstanding for the
purposes of this Section 9.4 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee's right to vote such Notes and that
the pledgee is not the Company, any other obligor on the Notes or a person
directly or indirectly controlling or controlled by or under direct or
indirect common control with the Company or any such other obligor. In the
case of a dispute as to such right, any decision by the Trustee taken upon
the advice of counsel shall be full protection to the Trustee. Upon request
of the Trustee, the Company shall furnish to the Trustee promptly an
Officer's Certificate listing and identifying all Notes, if any, known by the
Company to be owned or held by or for the account of any of the above
described persons; and, subject to Section 8.1, the Trustee shall be entitled
to accept such Officer's Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Notes not listed therein are
outstanding for the purpose of any such determination.
Section 9.5 Revocation of Consents; Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 9.1, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the
evidence to be included in the Notes the holders of which have consented to
such action may, by filing written notice with the Trustee at its Corporate
Trust Office and upon proof of holding as provided in Section 9.2, revoke
such action so far as concerns such Note. Except as aforesaid, any such
action taken by the holder of any Note shall be conclusive and binding upon
such holder and upon all future holders and owners of such Note and of any
Notes issued in exchange or substitution therefor, irrespective of whether
any notation in regard thereto is made upon such Note or any Note issued in
exchange or substitution therefor.
ARTICLE X
NOTEHOLDERS' MEETINGS
Section 10.1 Purpose of Meetings. A meeting of Noteholders may be
called at any time and from time to time pursuant to the provisions of this
Article X for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or to
give any directions to the Trustee permitted under this Indenture,
or to consent to the waiving of any default or Event of Default
hereunder and its consequences, or to take any other action
authorized to be taken by Noteholders pursuant to any of the
provisions of Article VII;
(2) to remove the Trustee and nominate a successor trustee
pursuant to the provisions of Article VIII;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 11.2;
(4) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount of
the Notes under any other provision of this Indenture or under
applicable law; or
(5) to take any other action authorized by this Indenture or
under applicable law.
Section 10.2 Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Noteholders to take any action specified in Section
10.1, to be held at such time and at such place in the Borough of Manhattan,
The City of New York, as the Trustee shall determine. Notice of every meeting
of the Noteholders, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting and the
establishment of any record date pursuant to Section 9.1, shall be mailed to
holders of Notes at their addresses as they shall appear on the Note
register. Such notice shall also be mailed to the Company. Such notices shall
be mailed not less than twenty (20) nor more than ninety (90) days prior to
the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the
holders of all Notes then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived
notice.
Section 10.3 Call of Meetings by Company or Noteholders. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or
the holders of at least 10% in aggregate principal amount of the Notes then
outstanding, shall have requested the Trustee to call a meeting of
Noteholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed
the notice of such meeting within twenty (20) days after receipt of such
request, then the Company or such Noteholders may determine the time and the
place for such meeting and may call such meeting to take any action
authorized in Section 10.1, by mailing notice thereof as provided in Section
10.2.
Section 10.4 Qualifications for Voting. To be entitled to vote at
any meeting of Noteholders a person shall (a) be a holder of one or more
Notes on the record date pertaining to such meeting or (b) be a person
appointed by an instrument in writing as proxy by a holder of one or more
Notes. The only persons who shall be entitled to be present or to speak at
any meeting of Noteholders shall be the persons entitled to vote at such
meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 10.5 Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may
deem advisable for any meeting of Noteholders, in regard to proof of the
holding of Notes and of the appointment of proxies, and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 10.3, in which case the
Company or the Noteholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the holders of
a majority in principal amount of the Notes represented at the meeting and
entitled to vote at the meeting.
Subject to the provisions of Section 9.4, at any meeting each
Noteholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Note
challenged as not outstanding and ruled by the chairman of the meeting to be
not outstanding. The chairman of the meeting shall have no right to vote
other than by virtue of Notes held by him or instruments in writing as
aforesaid duly designating him as the proxy to vote on behalf of other
Noteholders. Any meeting of Noteholders duly called pursuant to the
provisions of Section 10.2 or 10.3 may be adjourned from time to time by the
holders of a majority of the aggregate principal amount of Notes represented
at the meeting, whether or not constituting a quorum, and the meeting may be
held as so adjourned without further notice.
Section 10.6 Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be
subscribed the signatures of the holders of Notes or of their representatives
by proxy and the principal amount of the Notes held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Noteholders shall be prepared
by the secretary of the meeting and there shall be attached to said record
the original reports of the inspectors of votes on any vote by ballot taken
thereat and affidavits by one or more persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said
notice was mailed as provided in Section 10.2. The record shall show the
principal amount of the Notes voting in favor of or against any resolution.
The record shall be signed and verified by the affidavits of the permanent
chairman and secretary of the meeting and one of the duplicates shall be
delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the
meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
Section 10.7 No Delay of Rights by Meeting. Nothing contained in
this Article X shall be deemed or construed to authorize or permit, by reason
of any call of a meeting of Noteholders or any rights expressly or implicitly
conferred hereunder to make such call, any hindrance or delay in the exercise
of any right or rights conferred upon or reserved to the Trustee or to the
Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE XI
AMENDMENTS; SUPPLEMENTAL INDENTURES
Section 11.1 Amendments; Supplemental Indentures without Consent of
Noteholders. The Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may from time to time and at any time enter into
amendments or indentures supplemental hereto for one or more of the following
purposes:
(a) to make provision with respect to the conversion rights
of the holders of Notes pursuant to the requirements of Section 15.6;
(b) to convey, transfer, assign, mortgage or pledge to the
Trustee as security for the Notes, any property or assets;
(c) to evidence the succession of another corporation,
limited liability company, partnership or trust to the Company, or
successive successions, and the assumption by the successor
corporation, limited liability company, partnership or trust of the
covenants, agreements and obligations of the Company pursuant to
Article XII;
(d) to add to the covenants of the Company such further
covenants, restrictions or conditions as the Board of Directors and
the Trustee shall consider to be for the benefit of the holders of
Notes, and to make the occurrence, or the occurrence and
continuance, of a default in any such additional covenants,
restrictions or conditions a default or an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however,
that in respect of any such additional covenant, restriction or
condition such supplemental indenture may provide for a particular
period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default;
(e) to provide for the issuance under this Indenture of Notes
in coupon form (including Notes registrable as to principal only)
and to provide for exchangeability of such Notes with the Notes
issued hereunder in fully registered form and to make all
appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which
may be defective or inconsistent with any other provision contained
herein or in any supplemental indenture, or to make such other
provisions in regard to matters or questions arising under this
Indenture which shall not materially adversely affect the interests
of the holders of the Notes;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes; or
(h) to modify, eliminate or add to the provisions of this
Indenture to such extent as shall be necessary to effect the
qualifications of this Indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer and assignment of any property thereunder; provided,
however, the Trustee shall not be obligated to and may, in its discretion,
enter into any supplemental indenture that affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
Any amendment or supplemental indenture authorized by the provisions
of this Section 11.1 may be executed by the Company and the Trustee without
the consent of the holders of any of the Notes at the time outstanding,
notwithstanding any of the provisions of Section 11.2.
Section 11.2 Amendments; Supplemental Indentures with Consent of
Noteholders. With the consent (evidenced as provided in Article IX) of the
holders of not less than a majority in aggregate principal amount of the
Notes at the time outstanding (determined in accordance with Section 9.4),
the Company, when authorized by the resolutions of the Board of Directors,
and the Trustee may from time to time and at any time enter into amendments
or indentures supplemental hereto for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of this
Indenture or any supplemental indenture or of modifying in any manner the
rights of the holders of the Notes; provided, however, that no such amendment
or supplemental indenture shall (i) extend the fixed maturity of any Note, or
reduce the rate or extend the time of payment of interest thereon, or reduce
the principal amount thereof or premium, if any, thereon, or reduce any
amount payable on redemption or repurchase thereof, impair, or change in any
respect adverse to the holder of Notes, the obligation of the Company to
repurchase any Note at the option of the holder upon the happening of a
Repurchase Event, or impair or adversely affect the right of any Noteholder
to institute suit for the payment thereof, or change the currency in which
the Notes are payable, or impair or change in any respect adverse to the
Noteholders the right to convert the Notes into Common Stock subject to the
terms set forth herein, including Section 15.6, or subordinate in right of
payment the Notes to any other Indebtedness, without the consent of the
holder of each Note so affected, or (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all Notes then outstanding.
Upon the request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such amendment or supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Noteholders as aforesaid, the Trustee shall join with the Company in the
execution of such amendment or supplemental indenture unless such amendment
or supplemental indenture affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise, in which case the Trustee may
in is discretion, but shall not be obligated to, enter into such amendment or
supplemental indenture.
It shall not be necessary for the consent of the Noteholders under
this Section 11.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 11.3 Effect of Amendments and Supplemental Indentures. Any
amendment or supplemental indenture executed pursuant to the provisions of
this Article XI shall comply with the Trust Indenture Act, as then in effect;
provided that this Section 11.3 shall not require such amendment or
supplemental indenture or the Trustee to be qualified under the Trust
Indenture Act prior to the time such qualification is in fact required under
the terms of the Trust Indenture Act or the Indenture has been qualified
under the Trust Indenture Act, nor shall it constitute any admission or
acknowledgement by any party to such amendment or supplemental indenture that
any such qualification is required prior to the time such qualification is in
fact required under the terms of the Trust Indenture Act or the Indenture has
been qualified under the Trust Indenture Act. Upon the execution of any
amendment or supplemental indenture pursuant to the provisions of this
Article XI, this Indenture shall be and be deemed to be modified and amended
in accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the
Company and the holders of Notes shall thereafter be determined, exercised
and enforced hereunder subject in all respects to such modifications and
amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 11.4 Notation on Notes. Notes authenticated and delivered
after the execution of any amendment or supplemental indenture pursuant to
the provisions of this Article XI may bear a notation in form approved by the
Trustee as to any matter provided for in such amendment or supplemental
indenture. If the Company or the Trustee shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any modification of this Indenture contained in any such
amendment or supplemental indenture may, at the Company's expense, be
prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 17.11)
and delivered in exchange for the Notes then outstanding, upon surrender of
such Notes then outstanding.
Section 11.5 Evidence of Compliance of Amendment or Supplemental
Indenture to be Furnished to Trustee. The Trustee, subject to the provisions
of Sections 8.1 and 8.2, shall receive an Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any amendment or supplemental
indenture executed pursuant hereto complies with the requirements of this
Article XI.
ARTICLE XII
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 12.1 Company May Consolidate, Etc. on Certain Terms. The
Company shall not, directly or indirectly, consolidate with or merge with or
into any other Person or sell, lease, convey or transfer all or substantially
all its assets, whether in a single transaction or a series of related
transactions, to any person or group of affiliated persons unless:
(a) either (i) in the case of a merger or consolidation that does
not involve a transfer of all or substantially all of the Company's
properties and assets, the Company is the surviving entity or (ii) in case
the Company shall consolidate with or merge into another person or sell,
lease, convey or transfer all or substantially all assets, whether in a
single transaction or a series of related transactions, to any person, the
person formed by such consolidation or into which the Company is merged, or
the person which acquires by sale, conveyance or transfer, or which leases
the properties and assets of the Company substantially as an entirety, shall
be a corporation, limited liability company, partnership or trust, shall be
organized and validly existing under the laws of the United States of
America, any state thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of, premium, if any, and interest (including Liquidated
Damages, if any) on all of the Notes as applicable, and the performance or
observance of every covenant of this Indenture on the part of the Company to
be performed or observed and shall have provided for the applicable
conversion rights set forth in Section 15.6 and the repurchase rights set
forth in Article XVI;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been complied with, together with any
documents required under Article IX.
Section 12.2 Successor Entity to be Substituted. In case of any such
consolidation, merger, sale, conveyance or lease in accordance with Section
12.1, and, where required in accordance with Section 12.1(a) upon the
assumption by the successor entity, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due
and punctual payment of the principal of and premium, if any, and interest
(including Liquidated Damages, if any) on all of the Notes and the due and
punctual performance of all of the covenants and conditions of this Indenture
to be performed by the Company, such successor entity shall succeed to and be
substituted for the Company, with the same effect as if it had been named
herein as the party of the first part. Such successor entity thereupon may
cause to be signed, and may issue either in its own name or in the name of
TiVo Inc. any or all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee; and, upon
the order of such successor entity instead of the Company and subject to all
the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver, or cause to be authenticated
and delivered, any Notes which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication,
and any Notes which such successor entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Notes so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Notes theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Notes had been issued at the date of the
execution hereof. In the event of any such consolidation, merger, sale,
conveyance or lease, the person named as the "Company" in the first paragraph
of this Indenture or any successor which shall thereafter have become such in
the manner prescribed in this Article XII may be dissolved, wound up and
liquidated at any time thereafter and such person shall be released from its
liabilities as obligor and maker of the Notes and from its obligations under
this Indenture.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form (but not in substance) may be
made in the Notes thereafter to be issued as may be appropriate.
Section 12.3 Opinion of Counsel to be Given Trustee. The Trustee,
subject to Sections 8.1 and 8.2, shall receive an Officer's Certificate and
an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance or lease and any such assumption complies with the
provisions of this Article XII.
ARTICLE XIII
SATISFACTION AND DISCHARGE OF INDENTURE
Section 13.1 Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Notes theretofore authenticated
(other than any Notes that have been destroyed, lost or stolen and in lieu of
or in substitution for which other Notes shall have been authenticated and
delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Trustee for cancellation shall have become due
and payable, or are by their terms to become due and payable within one year
or are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption, and the
Company shall deposit with the Trustee, in trust, funds sufficient to pay at
maturity or upon redemption of all of the Notes (other than any Notes which
shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest
(including Liquidated Damages, if any) due or to become due to such date of
maturity or redemption date, as the case may be, and if in either case the
Company shall also pay or cause to be paid all other sums payable hereunder
by the Company, then this Indenture shall cease to be of further effect
(except as to (i) remaining rights of registration of transfer, substitution
and exchange and conversion of Notes, (ii) rights hereunder of Noteholders to
receive payments of principal of and premium, if any, and interest on, the
Notes and the other rights, duties and obligations of Noteholders, as
beneficiaries hereof with respect to the amounts, if any, so deposited with
the Trustee and (iii) the rights, obligations and immunities of the Trustee
hereunder), and the Trustee, on demand of the Company accompanied by an
Officer's Certificate and an Opinion of Counsel as required by Section 17.5
and at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture; the Company,
however, hereby agreeing to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred by the Trustee and to compensate
the Trustee for any services thereafter reasonably and properly rendered by
the Trustee in connection with this Indenture or the Notes.
Section 13.2 Deposited Monies to be Held in Trust by Trustee.
Subject to Section 13.4, all monies deposited with the Trustee pursuant to
Section 13.1 shall be held in trust and applied by it to the payment, either
directly or through any paying agent (including the Company if acting as its
own paying agent), to the holders of the particular Notes for the payment or
redemption of which such monies have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest and premium, if
any.
Section 13.3 Paying Agent to Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any
paying agent of the Notes (other than the Trustee) shall, upon demand of the
Company, be repaid to it or paid to the Trustee, and thereupon such paying
agent shall be released from all further liability with respect to such
monies.
Section 13.4 Return of Unclaimed Monies. Subject to the requirements
of applicable law, any monies deposited with or paid to the Trustee for
payment of the principal of, premium, if any, or interest on Notes and not
applied but remaining unclaimed by the holders of Notes for two years after
the date upon which the principal of, premium, if any, or interest (including
Liquidated Damages, if any) on such Notes, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee on
written demand and all liability of the Trustee shall thereupon cease with
respect to such monies; and the holder of any of the Notes shall thereafter
look only to the Company for any payment which such holder may be entitled to
collect unless an applicable abandoned property law designates another
person.
Section 13.5 Reinstatement. If (i) the Trustee or the paying agent
is unable to apply any money in accordance with Section 13.2 by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application and (ii) the holders of
at least a majority in principal amount of the then outstanding Notes so
request by written notice to the Trustee, the Company's obligations under
this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 13.1 until such time as the Trustee
or the paying agent is permitted to apply all such money in accordance with
Section 13.2; provided, however, that if the Company makes any payment of
interest on or principal of any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the holders of
such Notes to receive such payment from the money held by the Trustee or
paying agent.
ARTICLE XIV
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 14.1 Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest
(including Liquidated Damages, if any) on any Note, or for any claim based
thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in this Indenture or in any
supplemental indenture or in any Note, or because of the creation of any
indebtedness represented thereby, shall be had against any incorporator,
stockholder, employee, agent, officer or director or subsidiary, as such,
past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether
by virtue of any constitution, statute or rule of law, or by the enforcement
of any assessment or penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released as a condition of,
and as a consideration for, the execution of this Indenture and the issue of
the Notes.
ARTICLE XV
CONVERSION OF NOTES
Section 15.1 Right to Convert. Subject to and upon compliance with
the provisions of this Indenture, the holder of any Note shall have the
right, at his option, at any time following the date of original issuance of
the Notes and prior to the close of business on August 15, 2006 (except that,
with respect to any Note or portion of a Note that shall be called for
redemption, such right shall terminate, except as provided in the fifth
paragraph of Section 15.2 and Section 3.4, at the close of business on the
Business Day next preceding the date fixed for redemption of such Note or
portion of a Note unless the Company shall default in payment due upon
redemption thereof), to convert the principal amount of any such Note, or any
portion of such principal amount which is $1,000 or an integral multiple
thereof, into that number of fully paid and non-assessable shares of Common
Stock (as such shares shall then be constituted) obtained by dividing the
principal amount of the Note or portion thereof surrendered for conversion by
the Conversion Price in effect at such time, by surrender of the Note so to
be converted in whole or in part in the manner provided in Section 15.2. A
holder of Notes is not entitled to any rights of a holder of Common Stock
until such holder has converted his Notes to Common Stock, and only to the
extent such Notes are deemed to have been converted to Common Stock under
this Article XV. A Note with respect to which a holder has delivered a notice
in accordance with Section 16.2 regarding such holder's election to require
the Company to repurchase such holder's Notes following the occurrence of a
Repurchase Event may be converted in accordance with this Article XV only if
such holder withdraws such notice by delivering a written notice of
withdrawal to the Company prior to the close of business on the last Business
Day prior to the day fixed for repurchase.
Section 15.2 Exercise of Conversion Privilege; Issuance of Common
Stock on Conversion. In order to exercise the conversion privilege with
respect to any Note in definitive form, the holder of any such Note to be
converted in whole or in part shall surrender such Note, duly endorsed, at an
office or agency maintained by the Company pursuant to Section 5.2,
accompanied by the funds, if any, required by the penultimate paragraph of
this Section 15.2, shall give written notice of conversion in the form
provided on the Notes (or such other notice that is acceptable to the
Company), shall provide copies of such notice via facsimile to the Company,
attention General Counsel ((000) 000-0000) and Xxxxxx & Xxxxxxx, attention
Xxxx Xxxxxxx ((000) 000-0000), and shall provide such additional
documentation or certification as the Company and/or the Trustee may
reasonably request to the office or agency specified in said notice that the
holder elects to convert such Note or such portion thereof. Such notice shall
also state the name or names (with address) in which the shares of Common
Stock which shall be issuable on such conversion shall be issued, and shall
be accompanied by transfer taxes, if required pursuant to Section 15.7. Each
such Note surrendered for conversion shall, unless the shares issuable on
conversion are to be issued in the same name as the registration of such
Note, be duly endorsed by, or be accompanied by instruments of transfer
(including a broker's letter regarding compliance with the prospectus
delivery requirement, if applicable) in form satisfactory to the Company duly
executed by, the holder or his duly authorized attorney.
The Company shall use its reasonable best efforts to, within three
(3) Business Days after the Conversion Date (as defined below) with respect
to any Note, subject to compliance with any restrictions on transfer if
shares issuable on conversion are to be issued in a name other than that of
the Noteholder (as if such transfer were a transfer of the Note or Notes (or
portion thereof) so converted), issue and deliver to such holder at the
office or agency maintained by the Company for such purpose pursuant to
Section 5.2, the number of full shares of Common Stock issuable upon the
conversion of such Note or portion thereof in accordance with the provisions
of this Article and a check or cash in respect of any fractional interest in
respect of a share of Common Stock arising upon such conversion, as provided
in Section 15.3 (which payment, if any, shall be paid no later than ten (10)
Business Days after the Conversion Date). In case any Note of a denomination
greater than $1,000 shall be surrendered for partial conversion, and subject
to Section 2.3, the Company shall execute and the Trustee shall authenticate
and deliver to the holder of the Note so surrendered, without charge to him,
a new Note or Notes in authorized denominations in an aggregate principal
amount equal to the unconverted portion of the surrendered Note.
If the Company shall not have delivered the number of shares of
Common Stock issued upon conversion of Notes by any holder within ten (10)
Business Days after the Conversion Date with respect to such Notes, the
Company shall pay liquidated damages to such holder in the amount of one
percent (1%) of the outstanding principal amount of Notes so converted by
such holder.
The conversion shall be deemed to have been effected as to any such
Note (or portion thereof) on the date on which the requirements set forth
above in this Section 15.2 have been satisfied as to such Note (or portion
thereof) (such date, the "Conversion Date"), and the person in whose name any
shares of Common Stock shall be issuable upon such conversion shall be deemed
to have become on the Conversion Date the holder of record of the shares
represented thereby; provided, however, that any such surrender on any date
when the stock transfer books of the Company shall be closed shall constitute
the person in whose name the certificates are to be issued as the record
holder thereof for all purposes on the next succeeding day on which such
stock transfer books are open, but such conversion shall be at the Conversion
Price in effect on the date upon which such Note shall be surrendered. For
purposes of determining satisfaction of the requirement set forth above with
respect to the Conversion Date for any Note, any facsimile required to be
sent shall be deemed to have been sent on a given day if such facsimile was
sent before 11:00 a.m., New York City time, on such date, to the number
listed above (unless a different number is specified in a notice filed with
the Trustee and mailed by the Trustee, at the Company's expense, to each
holder of the Notes at such holder's address appearing in the Note register,
as provided for in Section 2.5 of this Indenture) and a confirmation of
transmission of such facsimile is obtained.
The Company shall pay in cash, on any Note or portion thereof
surrendered for conversion during the period from the close of business on
any interest payment date to which interest has been fully paid through the
close of business on the Business Day preceding the record date for the next
such interest payment date, accrued and unpaid interest, if any, to, but
excluding, the date of conversion. Any such payment of interest shall be made
with respect to such Note within ten (10) Business Days after the Conversion
Date. Notwithstanding the foregoing, any Note or portion thereof surrendered
for conversion during the period from the close of business on the record
date for any interest payment date through the close of business on the
Business Day next preceding such interest payment date shall (unless such
Note or portion thereof being converted shall have been called for redemption
pursuant to a redemption notice mailed to the Noteholders in accordance with
Section 3.2 or shall have become due prior to such interest payment date as a
result of a Repurchase Event) be accompanied by payment, in New York Clearing
House funds or other funds acceptable to the Company, of an amount equal to
the interest otherwise payable on such interest payment date on the principal
amount 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 Notes. Except as provided in this Section 15.2, no adjustment
shall be made for interest accrued on any Note converted or for dividends on
any shares issued upon the conversion of such Note as provided in this
Article.
Section 15.3 Cash Payments in Lieu of Fractional Shares. No
fractional shares of Common Stock or scrip representing fractional shares
shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on
the basis of the aggregate principal amount of the Notes (or specified
portions thereof to the extent permitted hereby) so surrendered for
conversion. If any fractional share of stock otherwise would be issuable upon
the conversion of any Note or Notes, the Company shall calculate and pay a
cash adjustment in lieu of such fractional share at the current market value
thereof to the holder of Notes. The current market value of a share of Common
Stock shall be the Closing Price on the first Trading Day immediately
preceding the day on which the Notes (or specified portions thereof) are
deemed to have been converted and such Closing Price shall be determined as
provided in Section 15.5(h).
Section 15.4 Conversion Price. The conversion price shall be as
specified in the form of Note (herein called the "Conversion Price") attached
as Exhibit A hereto, subject to adjustment as provided in this Article XV.
Section 15.5 Adjustment of Conversion Price. The Conversion Price
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or
make a distribution to all holders of the outstanding Common Stock
in shares of Common Stock, the Conversion Price in effect at the
opening of business on the date following the date fixed for the
determination of stockholders entitled to receive such dividend or
other distribution shall be reduced by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on the
Record Date (as defined in Section 15.5(h)) fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately
after the opening of business on the day following the Record Date.
If any dividend or distribution of the type described in this
Section 15.5(a) is declared but not so paid or made, the Conversion
Price shall again be adjusted to the Conversion Price which would
then be in effect if such dividend or distribution had not been
declared.
(b) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective
shall be proportionately reduced, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller
number of shares of Common Stock, the Conversion Price in effect at
the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately increased,
such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the day following the
day upon which such subdivision or combination becomes effective.
(c) Subject to Section 15.11(b) hereof, in case the Company
shall issue rights or warrants to all holders of its outstanding
shares of Common Stock entitling them (for a period expiring within
forty-five (45) days after the date fixed for the determination of
stockholders entitled to receive such rights or warrants) to
subscribe for or purchase shares of Common Stock at a price per
share less than the Current Market Price (as defined in Section
15.5(h)) on the Record Date fixed for the determination of
stockholders entitled to receive such rights or warrants, the
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect at
the opening of business on the date after such Record Date by a
fraction of which the numerator shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the
Record Date plus the number of shares that the aggregate offering
price of the total number of shares so offered for subscription or
purchase would purchase at such Current Market Price, and of which
the denominator shall be the sum of the number of shares of Common
Stock outstanding at the close of business on the Record Date plus
the total number of additional shares of Common Stock so offered for
subscription or purchase. Such adjustment shall become effective
immediately after the opening of business on the day following the
Record Date fixed for determination of stockholders entitled to
receive such rights or warrants. To the extent that shares of Common
Stock are not delivered pursuant to such rights or warrants, upon
the expiration or termination of such rights or warrants the
Conversion Price shall be readjusted to the Conversion Price that
would then be in effect had the adjustments made upon the issuance
of such rights or warrants been made on the basis of delivery of
only the number of shares of Common Stock actually delivered. In the
event that such rights or warrants are not so issued, the Conversion
Price shall again be adjusted to be the Conversion Price that would
then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights or warrants had not
been fixed. In determining whether any rights or warrants entitle
the holders to subscribe for or purchase shares of Common Stock at
less than such Current Market Price, and in determining the
aggregate offering price of such shares of Common Stock, there shall
be taken into account any consideration received for such rights or
warrants, the value of such consideration, if other than cash, to be
determined by the Board of Directors.
(d) Subject to Section 15.11(b) hereof, 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 15.5(a)
applies) or evidences of its indebtedness or other assets (including
securities, but excluding (1) any rights or warrants referred to in
Section 15.5(c) and (2) dividends and distributions paid exclusively
in cash (except as set forth in Section 15.5(e) and (f), (the
foregoing hereinafter in this Section 15.5(d) called the
"Securities")), unless the Company elects to reserve such Securities
for distribution to the Noteholders upon conversion of the Notes so
that any such holder converting Notes will receive upon such
conversion, in addition to the shares of Common Stock to which such
holder is entitled, the amount and kind of such Securities which
such holder would have received if such holder had converted its
Notes into Common Stock immediately prior to the Record Date (as
defined in Section 15.5(h) for such distribution of the Securities)
then, in each such case, the Conversion Price shall be reduced so
that the same shall be equal to the price determined by multiplying
the Conversion Price in effect immediately prior to the close of
business on the Record Date (as defined in Section 15.5(h)) with
respect to such distribution by a fraction of which the numerator
shall be the Current Market Price (determined as provided in Section
15.5(h)) on such date less the fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) on such date of the portion of the
Securities so distributed applicable to one share of Common Stock
and the denominator shall be such Current Market Price, such
reduction to become effective immediately prior to the opening of
business on the day following the Record Date; provided, however,
that in the event the then fair market value (as so determined) of
the portion of the Securities so distributed applicable to one share
of Common Stock is equal to or greater than the Current Market Price
on the Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Noteholder shall have the right
to receive upon conversion of a Note (or any portion thereof) the
amount of Securities such holder would have received had such holder
converted such Note (or portion thereof) immediately prior to such
Record Date. In the event that such dividend or distribution is not
so paid or made, the Conversion Price shall again be adjusted to be
the Conversion Price which would then be in effect if such dividend
or distribution had not been declared. If the Board of Directors
determines the fair market value of any distribution for purposes of
this Section 15.5(d) by reference to the actual or when issued
trading market for any securities comprising all or part of such
distribution, it must in doing so consider the prices in such market
over the same period (the "Reference Period") used in computing the
Current Market Price pursuant to Section 15.5(h) to the extent
possible, unless the Board of Directors in a board resolution
determines that determining the fair market value during the
Reference Period would not be in the best interest of the
Noteholder.
In the event that the Company implements a new stockholder
rights plan, such rights plan shall provide that upon conversion of
the Notes the holders will receive, in addition to the Common Stock
issuable upon such conversion, the rights issued under such rights
plan (notwithstanding the occurrence of an event causing such rights
to separate from the Common Stock at or prior to the time of
conversion). Any distribution of rights or warrants pursuant to a
stockholder rights plan complying with the requirements set forth in
the immediately preceding sentence of this paragraph shall not
constitute a distribution of rights or warrants for the purposes of
this Section 15.5(d).
Rights or warrants distributed by the Company to all
holders of Common Stock entitling the holders thereof to subscribe
for or purchase shares of the Company's capital stock (either
initially or under certain circumstances), which rights or warrants,
until the occurrence of a specified event or events ("Trigger
Event"): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in
respect of future issuances of Common Stock, shall be deemed not to
have been distributed for purposes of this Section 15.5(d) (and no
adjustment to the Conversion Price under this Section 15.5(d) will
be required) until the occurrence of the earliest Trigger Event. If
such right or warrant is subject to subsequent events, upon the
occurrence of which such right or warrant shall become exercisable
to purchase different securities, evidences of indebtedness or other
assets or entitle the holder to purchase a different number or
amount of the foregoing or to purchase any of the foregoing at a
different purchase price, then the occurrence of each such event
shall be deemed to be the date of issuance and record date with
respect to a new right or warrant (and a termination or expiration
of the existing right or warrant without exercise by the holder
thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other
event (of the type described in the preceding sentence) with respect
thereto, that resulted in an adjustment to the Conversion Price
under this Section 15.5(d), (1) in the case of any such rights or
warrants that shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Price shall be
readjusted upon such final redemption or repurchase to give effect
to such distribution or Trigger Event, as the case may be, as though
it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of Common Stock with respect
to such rights or warrants (assuming such holder had retained such
rights or warrants), made to all holders of Common Stock as of the
date of such redemption or repurchase, and (2) in the case of such
rights or warrants all of which shall have expired or been
terminated without exercise, the Conversion Price shall be
readjusted as if such rights and warrants had never been issued.
For purposes of this Section 15.5(d) and Sections 15.5(a)
and (c), any dividend or distribution to which this Section 15.5(d)
is applicable that also includes shares of Common Stock, or rights
or warrants to subscribe for or purchase shares of Common Stock to
which Section 15.5(c) applies (or both), shall be deemed instead to
be (1) a dividend or distribution of the evidences of indebtedness,
assets, shares of capital stock, rights or warrants other than such
shares of Common Stock or rights or warrants to which Section
15.5(c) applies (and any Conversion Price reduction required by this
Section 15.5(e) with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or distribution
of such shares of Common Stock or such rights or warrants (and any
further Conversion Price reduction required by Sections 15.5(a) and
(c) with respect to such dividend or distribution shall then be
made, except (A) the Record Date of such dividend or distribution
shall be substituted as "the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution", "Record Date fixed for such determination" and
"Record Date" within the meaning of Section 15.5(a) and as "the date
fixed for the determination of stockholders entitled to receive such
rights or warrants", "the Record Date fixed for the determination of
the stockholders entitled to receive such rights or warrants" and
"such Record Date" within the meaning of Section 15.5(c) and (B) any
shares of Common Stock included in such dividend or distribution
shall not be deemed "outstanding at the close of business on the
date fixed for such determination" within the meaning of Section
15.5(a).
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any
cash that is distributed upon a merger or consolidation to which
Section 15.6 applies or as part of a distribution referred to in
Section 15.5(d)), in an aggregate amount that, combined together
with (1) the aggregate amount of any other such distributions to all
holders of its Common Stock made exclusively in cash within the
twelve (12) months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to this
Section 15.5(e) has been made, and (2) the aggregate of any cash
plus the fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution) of consideration payable in respect of any tender offer
by the Company or any of its subsidiaries for all or any portion of
the Common Stock concluded within the twelve (12) months preceding
the date of payment of such distribution, and in respect of which no
adjustment pursuant to Section 15.5(f) has been made, exceeds 10% of
the product of the Current Market Price (determined as provided in
Section 15.5(h)) on the Record Date with respect to such
distribution times the number of shares of Common Stock outstanding
on such date, then, and in each such case, immediately after the
close of business on such date, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
close of business on such Record Date by a fraction (i) the
numerator of which shall be equal to the Current Market Price on the
Record Date less an amount equal to the quotient of (x) the excess
of such combined amount over such 10% and (y) the number of shares
of Common Stock outstanding on the Record Date and (ii) the
denominator of which shall be equal to the Current Market Price on
such 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 Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Noteholder shall have the right
to receive upon conversion of a Note (or any portion thereof) the
amount of cash such holder would have received had such holder
converted such Note (or portion thereof) immediately prior to such
Record Date. In the event that such dividend or distribution is not
so paid or made, the Conversion Price shall again be adjusted to be
the Conversion Price that would then be in effect if such dividend
or distribution had not been declared.
(f) In case a tender offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire
and such tender offer (as amended upon the expiration thereof) shall
require the payment to stockholders (based on the acceptance (up to
any maximum specified in the terms of the tender offer) of Purchased
Shares (as defined below)) of an aggregate consideration having a
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution) that combined together with (1) the aggregate of the
cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in
a Board Resolution), as of the expiration of such tender offer, of
consideration payable in respect of any other tender offers, by the
Company or any of its subsidiaries for all or any portion of the
Common Stock expiring within the twelve (12) months preceding the
expiration of such tender offer and in respect of which no
adjustment pursuant to this Section 15.5(f) has been made and (2)
the aggregate amount of any distributions to all holders of the
Company's Common Stock made exclusively in cash within twelve (12)
months preceding the expiration of such tender offer and in respect
of which no adjustment pursuant to Section 15.5(e) has been made,
exceeds 10% of the product of the Current Market Price (determined
as provided in Section 15.5(h)) as of the last time (the "Expiration
Time") tenders could have been made pursuant to such tender offer
(as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time,
then, and in each such case, immediately prior to the opening of
business on the day after the date of the Expiration Time, the
Conversion Price shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to close of business on the date of the Expiration
Time by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding (including any tendered shares)
on the Expiration Time multiplied by the Current Market Price of the
Common Stock on the Trading Day next succeeding the Expiration Time
and the denominator shall be the sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in
the terms of the tender offer) of all shares validly tendered and
not withdrawn as of the Expiration Time (the shares deemed so
accepted, up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) on the
Expiration Time and the Current Market Price of the Common Stock on
the Trading Day next succeeding the Expiration Time, such reduction
(if any) to become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event that
the Company is obligated to purchase shares pursuant to any such
tender offer, but the Company is permanently prevented by applicable
law from effecting any such purchases or all such purchases are
rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price that would then be in effect if such tender offer
had not been made. If the application of this Section 15.5(f) to any
tender offer would result in an increase in the Conversion Price, no
adjustment shall be made for such tender offer under this Section
15.5(f).
(g) In case of a tender or exchange offer made by a person
other than the Company or any Subsidiary for an amount that
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 in good faith,
whose determination shall be conclusive, and described in a
resolution of the Board of Directors) at the last time (the
"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 of the Common Stock on the Trading
Day next succeeding the Expiration Time, and in which, as of the
Expiration Time the Board of Directors is not recommending rejection
of the offer, the Conversion Price shall be reduced so that the same
shall equal the price determined by multiplying the Conversion Price
in effect immediately prior to the Expiration Time by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) on the
Expiration Time multiplied by the current Market Price of the Common
Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares validly
tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the
number of shares of Common Stock outstanding (less any Purchased
Shares) 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 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 Price shall again be
adjusted to be the Conversion Price that would then be in effect if
such tender or exchange offer had not been made. Notwithstanding the
foregoing, the adjustment described in this Section 15.5(g) shall
not be made if, as of the 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 XII.
(h) For purposes of this Section 15.5 and Section 15.11, the
following terms shall have the meaning indicated:
(1) "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 Nasdaq National Market or
New York Stock Exchange, as applicable, or, if such security
is not listed or admitted to trading on such National Market
or Exchange, on the principal national security exchange or
quotation system on which such security is quoted or listed
or admitted to trading, or, if not quoted or listed or
admitted to trading on any national securities exchange or
quotation system, the average of the closing bid and asked
prices of such security on the over-the-counter market on the
day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting
service, or if not so available, in such manner as furnished
by any New York Stock Exchange member firm selected from time
to time by the Board of Directors for that purpose, or a
price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a
Board Resolution.
(2) "Current Market Price" shall mean the average of
the daily Closing Prices per share of Common Stock for the
ten (10) consecutive Trading Days immediately prior to the
date in question; provided, however, that (1) if the "ex"
date (as hereinafter defined) for any event (other than the
issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to
Section 15.5(a), (b), (c), (d), (e), (f) or (g) occurs during
such ten (10) consecutive Trading Days, the Closing Price for
each Trading Day prior to the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by the
same fraction by which the Conversion Price is so required to
be adjusted as a result of such other event, (2) if the "ex"
date for any event (other than the issuance or distribution
requiring such computation) that requires an adjustment to
the Conversion Price pursuant to Section 15.5(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 reciprocal
of the fraction by which the Conversion Price is so required
to be adjusted as a result of such other event, and (3) if
the "ex" date for the issuance or distribution requiring such
computation is prior to the day in question, after taking
into account any adjustment required pursuant to clause (1)
or (2) of this proviso, the Closing Price for each Trading
Day on or after such "ex" date shall be adjusted by adding
thereto the amount of any cash and the fair market value (as
determined by the Board of Directors in a manner consistent
with any determination of such value for purposes of Section
15.5(d), (f) or (g), whose determination shall be conclusive
and described in a Board Resolution) 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 Sections 15.5(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 offer requiring
such computation) that requires an adjustment to the
Conversion Price pursuant to Section 15.5(a), (b), (c), (d),
(e), (f) and (g) occurs on or after the Expiration Time for
the tender or exchange offer requiring such computation and
prior to the day in question, the Closing Price for each
Trading Day on and after the "ex" date for such other event
shall be adjusted by multiplying such Closing Price by the
reciprocal of the fraction by which the Conversion Price is
so required to be adjusted as a result of such other event.
For purposes of this paragraph, the term "ex" date, (1) when
used with respect to any issuance or distribution, means the
first date on which the Common Stock trades regular way on
the relevant exchange or in the relevant market from which
the Closing Price was obtained without the right to receive
such issuance or distribution, (2) when used with respect to
any subdivision or combination of shares of Common Stock,
means the first date on which the Common Stock trades regular
way on such exchange or in such market after the time at
which such subdivision or combination becomes effective, and
(3) when used with respect to any tender or exchange offer
means the first date on which the Common Stock trades regular
way on such exchange or in such market after the Expiration
Time of such offer. Notwithstanding the foregoing, whenever
successive adjustments to the Conversion Price are called for
pursuant to this Section 15.5, such adjustments shall be made
to the Current Market Price as may be necessary or
appropriate to effectuate the intent of this Section 15.5 and
to avoid unjust or inequitable results as determined in good
faith by the Board of Directors.
(3) "fair market value" shall mean the amount which
a willing buyer would pay a willing seller in an arm's length
transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which
the holders of Common Stock have the right to receive any
cash, securities or other property or in which the Common
Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(5) "Trading Day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York
Stock Exchange or another national security exchange, a day
on which the New York Stock Exchange or such other national
security exchange, as applicable, 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 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) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 15.5(a), (b), (c),
(d), (e), (f) and (g) and Section 15.11, as the Board of Directors
considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting
from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from
time to time may reduce the Conversion Price by any amount for any
period of time if the period is at least twenty (20) days, the
reduction is irrevocable during the period and the Board of
Directors shall have made a determination that such reduction would
be in the best interests of the Company, which determination shall
be conclusive and described in a Board Resolution. Whenever the
Conversion Price is reduced pursuant to the preceding sentence, the
Company shall mail to the holder of each Note at his last address
appearing on the Note register provided for in Section 2.5 a notice
of the reduction at least fifteen (15) days prior to the date the
reduced Conversion Price takes effect, and such notice shall state
the reduced Conversion Price and the period during which it will be
in effect.
(j) No adjustment in the Conversion Price shall be required
under this Section 15.5 unless such adjustment would require an
increase or decrease of at least 1% in such price; provided,
however, that any adjustments which by reason of this Section
15.5(j) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations
under this Article XV shall be made by the Company and shall be made
to the nearest cent or to the nearest one hundredth of a share, as
the case may be. No adjustment need be made for a change in the par
value or no par value of the Common Stock.
(k) Whenever the Conversion Price is adjusted as provided in
this Section 15.5, the Company shall promptly file with the Trustee
and any conversion agent other than the Trustee an Officer's
Certificate setting forth the Conversion Price after such adjustment
and setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the Company
shall prepare a notice of such adjustment of the Conversion Price
setting forth the adjusted Conversion Price and the date on which
each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Price to the holder of each Note at his
last address appearing on the Note register provided for in Section
2.5, within twenty (20) days of the effective date of such
adjustment. Failure to deliver such notice shall not effect the
legality or validity of any such adjustment.
(l) In any case in which this Section 15.5 provides that an
adjustment shall become effective immediately after a Record Date
for an event, the Company may defer until the occurrence of such
event (i) issuing to the holder of any Note converted after such
Record Date and before the occurrence of such event the additional
shares of Common Stock issuable upon such conversion by reason of
the adjustment required by such event over and above the Common
Stock issuable upon such conversion before giving effect to such
adjustment and (ii) paying to such holder any amount in cash in lieu
of any fraction pursuant to Section 15.3.
(m) For purposes of this Section 15.5, the number of shares
of Common Stock at any time outstanding shall not include shares
held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company will not pay any
dividend or make any distribution on shares of Common Stock held in
the treasury of the Company.
Section 15.6 Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur, namely (i) any reclassification
or change of the outstanding shares of Common Stock (other than a change in
par value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), (ii) any
consolidation, merger or combination of the Company with another person 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, (iii) any statutory exchange as a result of
which holders of Common Stock generally shall be entitled to receive stock,
securities or other property or assets (including cash) with respect to or in
exchange for such Common Stock (such transaction, a "Statutory Exchange"), or
(iv) any sale or conveyance of the properties and assets of the Company as,
or substantially as, an entirety to any other person as a result of which
holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, then the Company or the successor or purchasing person, as
the case may be, shall execute with the Trustee a supplemental indenture
(which shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture if such supplemental indenture is
then required to so comply) providing that such Note shall be convertible
into the kind and amount of shares of stock and other securities or property
or assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, Statutory Exchange, sale or conveyance by
a holder of a number of shares of Common Stock issuable upon conversion of
such Notes (assuming, for such purposes, a sufficient number of authorized
shares of Common Stock available to convert all such Notes) immediately prior
to such reclassification, change, consolidation, merger, combination,
Statutory Exchange, sale or conveyance assuming such holder of Common Stock
did not exercise his rights of election, if any, that holders of Common Stock
who were entitled to vote or consent to such transaction had as to the kind
or amount of securities, cash or other property receivable upon such
consolidation, merger, combination, Statutory Exchange, sale or conveyance
(provided that, if the kind or amount of securities, cash or other property
receivable upon such consolidation, merger, combination, Statutory Exchange,
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 15.6 the kind and amount of
securities, cash or other property receivable upon such consolidation,
merger, combination, Statutory Exchange, sale or conveyance for each
non-electing share shall be deemed to be the kind and amount so receivable
per share by a plurality of the non-electing shares). Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Article. If, in
the case of any such reclassification, change, consolidation, merger,
combination, Statutory Exchange, sale or conveyance, the stock or other
securities and assets receivable thereupon by a holder of shares of Common
Stock include shares of stock or other securities and assets of a person
other than the successor or purchasing person, as the case may be, in such
reclassification, change, consolidation, merger, combination, Statutory
Exchange, sale or conveyance, then such supplemental indenture shall also be
executed by such other person and shall contain such additional provisions to
protect the interests of the holders of the Notes as the Board of Directors
shall reasonably consider necessary by reason of the foregoing, including to
the extent practicable the provisions providing for the repurchase rights set
forth in Article XVI herein.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at his address appearing on
the Note register provided for in Section 2.5 of this Indenture, within
twenty (20) days after execution thereof. Failure to deliver such notice
shall not affect the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 15.6 applies to any event or occurrence, Section 15.5
shall not apply.
Section 15.7 Taxes on Shares Issued. The issue of stock certificates
on conversions of Notes shall be made without charge to the converting
Noteholder for any tax in respect of the issue thereof. The Company shall
not, however, be required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of stock in any name other
than that of the holder of any Note converted, and the Company shall not be
required to issue or deliver any such stock certificate unless and until the
person or persons requesting the issue thereof shall have paid to the Company
the amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
Section 15.8 Reservation of Shares; Shares to be Fully Paid; Listing
of Common Stock. The Company shall provide, free from preemptive rights, out
of its authorized but unissued shares or shares held in treasury, sufficient
shares to provide for the conversion of the Notes from time to time as such
Notes are presented for conversion.
Before taking any action which would cause an adjustment reducing
the Conversion Price below the then par value, if any, of the shares of
Common Stock issuable upon conversion of the Notes, the Company will take all
corporate action which may, in the opinion of its counsel, be necessary in
order that the Company may validly and legally issue shares of such Common
Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock issued upon
conversion of Notes will be fully paid and non-assessable by the Company and
free from all taxes, liens and charges with respect to the issue thereof.
The Company further covenants that if at any time the Common Stock
shall be listed on the New York Stock Exchange, Nasdaq National Market or any
other national securities exchange or automated quotation system the Company
will, if permitted by the rules of such exchange or automated quotation
system, list and keep listed, so long as the Common Stock shall be so listed
on such exchange or automated quotation system, all Common Stock issuable
upon conversion of the Notes.
Section 15.9 Responsibility of Trustee. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine whether any facts exist which may require
any adjustment of the Conversion Price, or with respect to the nature or
extent or calculation of any such adjustment when made, or with respect to
the method employed, or herein or in any supplemental indenture provided to
be employed, in making the same. The Trustee and any other conversion agent
shall not be accountable with respect to the validity or value (or the kind
or amount) of any shares of Common Stock, or of any securities or property,
which may at any time be issued or delivered upon the conversion of any Note;
and the Trustee and any other conversion agent make no representations with
respect thereto. Subject to the provisions of Section 8.1, neither the
Trustee nor any conversion agent shall be responsible for any failure of the
Company to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of
any Note for the purpose of conversion or to comply with any of the duties,
responsibilities or covenants of the Company contained in this Article.
Without limiting the generality of the foregoing, neither the Trustee nor any
conversion agent shall be under any responsibility to determine whether a
supplemental indenture need be entered into under Section 15.6 or the
correctness of any provisions contained in any supplemental indenture entered
into pursuant to such section relating either to the kind or amount of shares
of stock or securities or property (including cash) receivable by Noteholders
upon the conversion of their Notes after any event referred to in such
Section 15.6 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 8.1, may accept as conclusive evidence
of the correctness of any such provisions, and shall be protected in relying
upon, the Officer's Certificate (which the Company shall be obligated to file
with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
Section 15.10 Notice to Holders Prior to Certain Actions. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock (that would require an adjustment
in the Conversion Price pursuant to Section 15.5); or
(b) the Company shall authorize the granting to the holders
of its Common Stock of rights or warrants to subscribe for or
purchase any share of any class or any other rights or warrants; or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its outstanding
Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation
or merger to which the Company is a party and for which approval of
any shareholders of the Company is required, or of the sale or
transfer of all or substantially all of the assets of the Company;
or
(d) of the voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note register, provided for
in Section 2.5 of this Indenture, as promptly as possible but in any event at
least fifteen days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose
of such dividend, distribution or rights or warrants, or, if a record is not
to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined, or
(y) the date on which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up is expected to become
effective or occur, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or
winding-up. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up.
Section 15.11 Additional Conversion Price Adjustments
(a) In addition to any adjustments to the Conversion Price
required to be made pursuant to Section 15.5, the Conversion Price
(1) shall be adjusted on the date which is the earlier of (A) the
date by which the Company is required to have had the Shelf
Registration Statement declared effective by the Securities and
Exchange Commission or be subject to Liquidated Damages under the
Registration Rights Agreement or (B) two calendar days after the
date on which the Commission declares effective the Shelf
Registration Statement (the earlier of such date, the "Registration
Date"), if the Current Market Price on the Registration Date is less
than the Conversion Price otherwise in effect on the Registration
Date, to the greater of such Current Market Price or 75% of the
Benchmark Price (as defined below) and (2) shall be adjusted on
August 23, 2002 (the "August 23, 2002 Date" and, together with the
Registration Date, the "Adjustment Date"), if the Current Market
Price on the August 23, 2002 Date is less than the Conversion Price
otherwise in effect on the August 23, 2002 Date, to the greater of
such Current Market Price or 75% of the Benchmark Price; provided,
however, that in no event shall the Conversion Price be increased by
any such adjustment. For purposes of this Section 15.11, the
"Benchmark Price" shall mean $5.61, which price shall be subject to
adjustment as provided in the following sentence. If, prior to the
applicable Adjustment Date, any event occurs that would require an
adjustment to the Conversion Price pursuant to Section 15.5 or
Section 15.6 (without taking into account the effect of Section
15.5(i)), then, for each such event, the Benchmark Price shall be
adjusted in substantially the same manner in accordance with the
Conversion Price adjustment provisions set forth in Section 15.5 as
determined in good faith by the Board of Directors and set forth in
an Officer's Certificate in accordance with Section 15.11(c) hereof.
The phrase "date in question" in Section 15.5(h)(2) used in
determining the Current Market Price for this Section 15.11 shall be
the applicable Adjustment Date, and the occurrence of any event of
the type set forth in Section 15.5(h)(2) that would require an
adjustment in the Closing Price for any Trading Day in such period
of ten (10) consecutive Trading Days prior to the applicable
Adjustment Date pursuant to Section 15.5(h)(2) will also result in
an appropriate adjustment to the Current Market Price for the
purposes of this 15.11 in substantially the same manner as Section
15.5(h)(2) requires with regard to an event for which such Section
15.5(h)(2) designates an "ex" date, all as reasonably determined in
good faith by the Board of Directors.
(b) In addition to any adjustments to the Conversion Price
required to be made pursuant to Section 15.5, Section 15.6 or
Section 15.11(a):
(i) If, at any time prior to August 28, 2003, the
Company issues, in a single transaction, Additional Stock
(as defined below) consisting of (x) a Primary Security (as
defined below) plus (y) warrants to purchase Common Stock
(such warrants, together with the Primary Security, the
"Combined Securities"), with an Effective Primary Security
Issuance Price (as defined below) that is less than the
Effective Conversion Price (as defined below) otherwise in
effect immediately prior to such issuance, the Conversion
Price shall thereupon be adjusted so that the Effective
Conversion Price equals the Effective Primary Security
Issuance Price.
(ii) If, at any time prior to August 28, 2003, the
Company issues Additional Stock with a New Issuance Price
(as defined below) that is less than the Effective
Conversion Price otherwise in effect immediately prior to
such issuance, the Conversion Price shall thereupon be
adjusted so that the Effective Conversion Price equals the
New Issuance Price; provided, however, that in the event
that any Common Stock Equivalent constituting such newly
issued Additional Stock contains an adjustment provision
pursuant to which the New Issuance Price may itself be
adjusted in certain circumstances and such adjustment
occurs, resulting in a reduction in the New Issuance Price
(such reduced price, the "Adjusted New Issuance Price") to
a price lower than the Conversion Price, regardless of
whether such adjustment occurs after August 28, 2003, the
Conversion Price shall thereupon be adjusted so that the
Effective Conversion Price equals the Adjusted New Issuance
Price;
provided, however, that in no event shall the Conversion Price be
increased by any such adjustment.
In the event that an issuance by the Company of Additional
Stock would be covered by this Section 15.11(b) as well as either
Section 15.5(a) or Section 15.5(b), no adjustment pursuant to this
Section 15.11(b) shall be made, and the only adjustment to the
Conversion Price for such issuance of Additional Stock shall be made
pursuant to Section 15.5(a) or Section 15.5(b), as applicable. In
the event that an issuance by the Company of Additional Stock would
be covered by this Section 15.11(b) as well as either Section
15.5(c) or Section 15.5(d), no adjustment pursuant to Section
15.5(c) or Section 15.5(d) shall be made, and the only adjustment to
the Conversion Price for such issuance of Additional Stock shall be
made pursuant to this Section 15.11(b).
The term "Primary Security" shall mean the security
(whether in the form of Common Stock or a Common Stock Equivalent)
to which the largest percentage of the purchase price for the
Combined Securities is allocated for income tax purposes by the
Company.
The term "Effective Conversion Price" shall mean the
product of the Conversion Price otherwise in effect (not including
the effect of any adjustments made pursuant to Section 15.11(a)) and
the percentage of the aggregate purchase price for the securities
purchased under that certain Note, Unit and Warrant Purchase
Agreement, dated as of August 23, 2001, allocated to the Notes. The
initial Effective Conversion Price hereunder shall be $5.45.
The term "New Issuance Price" shall mean the per share price,
the conversion price or the exercise price, as applicable, of the
Additional Stock.
The term "Effective Primary Security Issuance Price" shall
mean the product of (i) the per share price, conversion price or
exercise price, as applicable, of the Primary Security and (ii) the
percentage of the purchase price for the Combined Securities
allocated to the Primary Security for income tax purposes by the
Company.
The term "Additional Stock" shall mean any shares of Common
Stock or Common Stock Equivalents issued by the Company other than:
(A) shares of Common Stock or Common Stock Equivalents
issued in a transaction covered by the Conversion
Price adjustments described in Section 15.5;
(B) shares of Common Stock or Common Stock Equivalents
issued for noncash consideration in connection with
any arm's length commercial agreement approved by
the Board of Directors, so long as the market value
of all such shares of Common Stock, together, with
respect to Common Stock Equivalents, with the
market value of all shares of Common Stock into or
for which such Common Stock Equivalents are
convertible, exchangeable or exercisable, which
market value for each such issuance shall be
measured at the time of such issuance, does not
exceed a cumulative aggregate of $20,000,000, as
determined by the Board of Directors in reasonable
good faith;
(C) shares of Common Stock and Common Stock Equivalents
issued for cash consideration in connection with
any arm's length commercial agreement approved by
the Board of Directors, so long as the cumulative
aggregate market value of all such shares of Common
Stock (or with respect to Common Stock Equivalents,
the cumulative aggregate market value of all shares
of Common Stock into or for which such Common Stock
Equivalents are convertible, exchangeable or
exercisable), at the time of each such issuance,
does not exceed $10,000,000;
(D) shares of Common Stock or Common Stock Equivalents
issued or issuable to the Company's employees,
consultants or directors directly or pursuant to a
stock option plan or restricted stock plan approved
by the Board of Directors;
(E) warrants with an exercise price that is equal to or
greater than the Current Market Price on the date
of issuance, issued to financial institutions or
lessors in connection with commercial credit
arrangements or equipment financings;
(F) shares of Common Stock or Common Stock Equivalents
issuable upon exercise of Common Stock Equivalents
outstanding as of the date hereof;
(G) shares of Common Stock or Common Stock Equivalents
issued in connection with bona fide acquisitions,
mergers or similar transactions, the terms of which
are approved by the Board of Directors; and
(H) shares of Common Stock issued or issuable upon
conversion of the Notes or exercise of the warrants
issued pursuant to those certain warrant
agreements, dated as of the date hereof, by and
between the Company and The Bank of New York, as
warrant agent.
(c) Whenever the Conversion Price or Benchmark Price is
adjusted as provided in this Section 15.11, the Company shall
promptly file with the Trustee and any conversion agent other than
the Trustee an Officer's Certificate setting forth the Conversion
Price or Benchmark Price, as the case may be, after such adjustment
and setting forth a brief statement of the facts requiring such
adjustment. Promptly after delivery of such certificate, the Company
shall prepare a notice of such adjustment of the Conversion Price or
Benchmark Price setting forth the adjusted Conversion Price or
Benchmark Price, as the case may be, and the date on which such
adjustment became effective and shall mail such notice of such
adjustment of the Conversion Price or Benchmark Price, as the case
may be, to the holder of each Note at his last address appearing on
the Note register provided for in Section 2.5, within twenty (20)
days of the effective date of such adjustment. Failure to deliver
such notice shall not affect the legality or validity of any such
adjustment.
ARTICLE XVI
REPURCHASE UPON A REPURCHASE EVENT
Section 16.1 Repurchase Right. If, at any time prior to August 15,
2006 there shall occur a Repurchase Event, then each Noteholder shall have
the right, at such holder's option, to require the Company to repurchase all
of such holder's Notes, or any portion thereof (in principal amounts of
$1,000 or integral multiples thereof), on the date (the "repurchase date")
that is forty (40) calendar days after the date of the Company Notice (as
defined in Section 16.2 below) of such Repurchase Event (or, if such 40th day
is not a Business Day, the next succeeding Business Day). Such repurchase
shall be made in cash at a price equal to 110% of the principal amount of
Notes such holder elects to require the Company to repurchase, together with
accrued interest, if any, to the repurchase date (the "Repurchase Price");
provided, however, that if such repurchase date is August 15 or February 15
then the interest payable on such date shall be paid to the holder of record
of the Note on the next preceding August 15 or February 15, respectively.
Notwithstanding anything in this Article XVI to the contrary, if a redemption
date pursuant to Article III shall occur prior to any repurchase date
established pursuant to a Company Notice under Section 16.2 hereof, provided
that the Company shall have deposited or set aside an amount of money
sufficient to redeem such Notes as set forth in Section 3.2 on or before such
repurchase date, all such Notes shall be redeemed pursuant to Article III and
the repurchase rights hereunder shall have no effect.
Section 16.2 Notices; Method of Exercising Repurchase Right, Etc.
(a) Unless the Company shall have theretofore called for
redemption all of the outstanding Notes and deposited or set aside
an amount of money sufficient to redeem such Notes on the redemption
date as set forth in Section 3.2, on or before the tenth (10th)
calendar day after the occurrence of a Repurchase Event, the Company
or, at the written request of the Company, the Trustee, shall mail
to all holders of record of the Notes a notice (the "Company
Notice") in the form as prepared by the Company of the occurrence of
the Repurchase Event 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 and cause a copy
of such notice of a repurchase right, or a summary of the
information contained therein, to be published once in a newspaper
of general circulation in The City of New York. The Company Notice
shall contain the following information:
(1) the repurchase date;
(2) the date by which the repurchase right must be
exercised;
(3) the last date by which the election to require
repurchase, if submitted, must be revoked;
(4) the Repurchase Price;
(5) a description of the procedure which a holder
must follow to exercise a repurchase right; and
(6) the Conversion Price then in effect, the date on
which the right to convert the principal amount of the Notes
to be repurchased will terminate and the place or places
where Notes 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 Notes.
If any of the foregoing provisions are inconsistent with
applicable law, such law shall govern.
(b) To exercise a repurchase right, a holder shall deliver to
the Trustee on or before the close of business on the thirty-fifth
(35th) day after the Company Notice was mailed (i) written notice to
the Company (or agent designated by the Company for such purpose) of
the holder's exercise of such right, which notice shall set forth
the name of the holder, the principal amount of the Notes to be
repurchased, a statement that an election to exercise the repurchase
right is being made thereby, and (ii) the Notes with respect to
which the repurchase right is being exercised, duly endorsed for
transfer to the Company. Election of repurchase by a holder shall be
revocable at any time prior to, but excluding, the repurchase date,
by delivering written notice to that effect to the Trustee prior to
the close of business on the Business Day prior to the repurchase
date.
(c) If the Company fails to repurchase on the repurchase date
any Notes (or portions thereof) as to which the repurchase right has
been properly exercised, then the principal of such Notes shall,
until paid, bear interest to the extent permitted by applicable law
from the repurchase date at the rate borne by the Note and each such
Note shall be convertible into Common Stock in accordance with this
Indenture (without giving effect to Section 16.2(b)) until the
principal of such Note shall have been paid or duly provided for.
(d) Any Note that is to be repurchased only in part shall be
surrendered to the Trustee duly endorsed for transfer to the Company
and accompanied by appropriate evidence of genuineness and authority
satisfactory to the Company and the Trustee duly executed by, the
holder thereof (or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and
deliver to the holder of such Note without service charge, a new
Note or Notes, containing identical terms and conditions, of any
authorized denomination as requested by such holder in aggregate
principal amount equal to and in exchange for the unrepurchased
portion of the principal of the Note so surrendered.
(e) On or prior to the repurchase date, the Company shall
deposit with the Trustee or with a paying agent (or, if the Company
is acting as its own paying agent, segregate and hold in trust as
provided in Section 5.4) the Repurchase Price in cash for payment to
the holder on the repurchase date; provided that if payment is to be
made in cash and such cash payment is to be made on the repurchase
date, it must be received by the Trustee or paying agent, as the
case may be, by 10:00 a.m., New York City time, on such date.
(f) If the Company is unable to repurchase on the repurchase
date all of the Notes (or portions thereof) as to which the
repurchase right has been properly exercised, the aggregate amount
of Notes the Company may repurchase shall be allocated pro rata
among each Note (or portion thereof) surrendered for repurchase,
based on the principal amount of such Note, in proportion to the
aggregate amount of Notes surrendered for repurchase.
(g) [Reserved.]
(h) [Reserved.]
(i) All Notes delivered for repurchase shall be delivered to
the Trustee to be canceled in accordance with the provisions of
Section 2.8.
Section 16.3 [Reserved.]
Section 16.4 Certain Definitions. For purposes of this
Article XVI:
(a) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3 and 13d-5, as in effect on the date of
the original execution of this Indenture, promulgated by the
Securities and Exchange Commission pursuant to the Exchange Act;
(b) the term "person" or "group" shall include any syndicate
or group which would be deemed to be a "person" under Section 13(d)
and 14(d) of the Exchange Act as in effect on the date of the
original execution of this Indenture; and
(c) the term "Continuing Director" means at any date a member
of the Company's Board of Directors (i) who was a member of such
board on August 28, 2001 or (ii) who was nominated or elected by at
least a majority of the directors who were Continuing Directors at
the time of such nomination or election or whose election to the
Company's Board of Directors was recommended or endorsed by at least
a majority of the directors who were Continuing Directors at the
time of such nomination or election or such lesser number comprising
a majority of a nominating committee if authority for such
nominations or elections has been delegated to a nominating
committee whose authority and composition have been approved by at
least a majority of the directors who were continuing directors at
the time such committee was formed. (Under this definition, if the
Board of Directors of the Company as of the date of this Indenture
were to approve a new director or directors and then resign, no
Change in Control would occur even though all of the current members
of the Board of Directors would thereafter cease to be in office).
(d) the term "Repurchase Event" means a Change in Control or
a Termination of Trading.
(e) a "Change in Control" shall be deemed to have occurred
when (i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act) is or becomes the beneficial
owner of shares representing more than 50% of the combined voting
power of the then outstanding securities entitled to vote generally
in elections of directors of the Company (the "Voting Stock"); (ii)
approval by the stockholders of the Company of any plan or proposal
for the liquidation, dissolution or winding up of the Company; (iii)
the Company (A) consolidates with or merges into any other
corporation or any other corporation merges into the Company, and in
the case of any such transaction, the outstanding Common Stock of
the Company is changed or exchanged into other assets or securities
as a result, unless the stockholders of the Company immediately
before such transaction own, directly or indirectly immediately
following such transaction, at least 51% of the combined voting
power of the outstanding voting securities of the corporation
resulting from such transaction in substantially the same proportion
as their ownership of the Voting Stock immediately before such
transaction, or (B) conveys, transfers or leases all or
substantially all of its assets to any person; or (iv) any time
Continuing Directors do not constitute a majority of the Board of
Directors of the Company (or, if applicable, a successor corporation
to the Company); provided that a Change in Control shall not be
deemed to have occurred if either (x) the Closing Price (as defined
in Section 15.5(h)(1) hereof) of the Common Stock for any five (5)
Trading Days during the ten (10) Trading Days immediately preceding
the Change in Control is at least equal to 105% of the Conversion
Price in effect on the date on which the Change in Control occurs
and, if such Change in Control occurs on a date which is prior to
the last date on which the Shelf Registration Statement is required
to remain effective pursuant to the Registration Rights Agreement,
the Shelf Registration Statement is effective and available for use
or (y) in the case of a merger or consolidation or conveyance,
transfer or lease otherwise constituting a Change in Control, all of
the consideration (excluding cash payments for fractional shares) in
such merger or consolidation constituting the Change in Control
consists of common stock listed for trading on a United States
national securities exchange or approved for trading on the Nasdaq
National Market or the Nasdaq SmallCap (or which will be so traded
or approved for trading when issued or exchanged in connection with
such Change in Control) and as a result of such transaction or
transactions such Notes become convertible solely into such common
stock; provided, however, that the exception contained in the
preceding clause (y) shall only apply in the event that (aa) the
issuer of such common stock has a total market capitalization of at
least $150 million and (bb) the product of (i) the average daily
trading volume of such common stock for the ten (10) Trading Days
immediately preceding the date on which the Company either executes
the definitive agreement with respect to the transaction otherwise
constituting a Change in Control or, if no such definitive agreement
is executed, the date on which the transaction otherwise
constituting a Change in Control is deemed to have occurred, as
determined by the Company in good faith (either of such dates, as
applicable, the "Measurement Date") and (ii) the average of the
daily volume-weighted average per share price of such common stock
for the ten (10) Trading Days immediately preceding the Measurement
Date exceeds $1.5 million.
(f) the term "market capitalization" in the proviso following
clause (y) of the preceding subsection 16.4(e) shall mean, with
respect to such issuer, the number of shares of common stock
outstanding as of the Measurement Date (which number shall include
shares of common stock held by affiliates of such issuer) multiplied
by the closing price per share for such common stock of such issuer
on the Measurement Date.
(g) the term "volume-weighted average per share price" shall
mean the volume-weighted average price of a share of common stock of
an issuer described in the proviso following clause (y) of the
preceding subsection 16.4(e) on a given Trading Day as calculated by
the AQR function by Bloomberg.
(h) a "Termination of Trading" shall have occurred if the
Common Stock (or other common stock into which the Notes are then
convertible) is neither listed for trading on a United States
national securities exchange nor approved for trading on the Nasdaq
National Market or the Nasdaq SmallCap Market.
ARTICLE XVII
MISCELLANEOUS PROVISIONS
Section 17.1 Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements of the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
Section 17.2 Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be
done or performed by any board, committee or officer of the Company shall and
may be done and performed with like force and effect by the like board,
committee or officer of any corporation that shall at the time be the lawful
sole successor of the Company.
Section 17.3 Addresses for Notices, Etc. Any notice or demand which
by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Notes on the Company shall be
deemed to have been sufficiently given or made, for all purposes if given or
served by being deposited postage prepaid by registered or certified mail in
a post office letter box addressed (until another address is filed by the
Company with the Trustee) to TiVo Inc., 0000 Xxxx Xxxxxx, X.X. Xxx 0000,
Xxxxxx, XX 00000, Attention: Chief Financial Officer. Any notice, direction,
request or demand hereunder to or upon the Trustee shall be deemed to have
been sufficiently given or made, for all purposes, if given or served by
being deposited postage prepaid by registered or certified mail in a post
office letter box addressed to the Corporate Trust Office.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed
to him by first class mail, postage prepaid, at his address as it appears on
the Note register and shall be sufficiently given to him if so mailed within
the time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other
Noteholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
Section 17.4 Governing Law. This Indenture and each Note shall be
deemed to be a contract made under the laws of New York, and for all purposes
shall be governed by and construed in accordance with the laws of New York,
including, without limitation, Section 5-1401 of the New York General
Obligations Law.
Section 17.5 Evidence of Compliance with Conditions Precedent;
Certificates to Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer's Certificate stating that in
the opinion of the person executing such Officer's Certificate all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been satisfied, and an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been satisfied
(except that an Opinion of Counsel shall not be required for the initial
issuance and authentication of the Notes).
Each certificate or opinion provided for by or on behalf of the
Company in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture shall
include (1) a statement that the person making such certificate or opinion
has read such covenant or condition; (2) a brief statement as to the nature
and scope of the examination or investigation upon which the statement or
opinion contained in such certificate or opinion is based; (3) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether or not such covenant or condition has been complied with; and (4)
a statement as to whether or not, in the opinion of such person, such
condition or covenant has been satisfied.
Section 17.6 Legal Holidays. In any case where the date of maturity
of interest on or principal of the Notes or the date fixed for redemption of
any Note will not be a Business Day, then payment of such interest on or
principal of the Notes need not be made on such date, but may be made on the
next succeeding Business Day with the same force and effect as if made on the
date of maturity or the date fixed for redemption, and no interest shall
accrue for the period from and after such date.
Section 17.7 No Security Interest Created. Nothing in this Indenture
or in the Notes, expressed or implied, shall be construed to constitute a
security interest under the Uniform Commercial Code or similar legislation,
as now or hereafter enacted and in effect, in any jurisdiction.
Section 17.8 Trust Indenture Act. This Indenture is hereby made
subject to, and shall be governed by, the provisions of the Trust Indenture
Act required to be part of and to govern indentures qualified under the Trust
Indenture Act; provided, however, that, unless otherwise required by law,
notwithstanding the foregoing, this Indenture and the Notes issued hereunder
shall not be subject to the provisions of subsections (a)(1), (a)(2), and
(a)(3) of Section 314 of the Trust Indenture Act as now in effect as
hereafter amended or modified; provided further that this Section 17.8 shall
not require that this Indenture or the Trustee be qualified under the Trust
Indenture Act prior to the time such qualification is in fact required under
the terms of the Trust Indenture Act, nor shall it constitute any admission
or acknowledgment by any party hereto that any such qualification is required
prior to the time such qualification is in fact required under the terms of
the Trust Indenture Act. If any provision hereof limits, qualifies or
conflicts with another provision hereof that is required to be included in an
indenture qualified under the Trust Indenture Act, such required provision
shall control.
Section 17.9 Benefits of Indenture. Nothing in this Indenture or in
the Notes, expressed or implied, shall give to any person, other than the
parties hereto, any paying agent, any authenticating agent, any Note
registrar and their successors hereunder, the holders of Notes and the
holders of Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 17.10 Table of Contents, Headings, Etc. The table of
contents and the titles and headings of the articles and sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
Section 17.11 Authenticating Agent. The Trustee may appoint an
authenticating agent which shall be authorized to act on its behalf and
subject to its direction in the authentication and delivery of Notes in
connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Sections 2.4, 2.5, 2.6, 2.7 and 3.3, as
fully for all intents and purposes as though the authenticating agent had
been expressly authorized by this Indenture and those Sections to
authenticate and deliver Notes. For all purposes of this Indenture, the
authentication and delivery of Notes by the authenticating agent shall be
deemed to be authentication and delivery of such Notes "by the Trustee" and a
certificate of authentication executed on behalf of the Trustee by an
authenticating agent shall be deemed to satisfy any requirement hereunder or
in the Notes for the Trustee's certificate of authentication. Such
authenticating agent shall at all times be a person eligible to serve as
trustee hereunder pursuant to Section 8.9.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating
agent shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of any authenticating agent, shall be the
successor of the authenticating agent hereunder, if such successor
corporation is otherwise eligible under this Section, without the execution
or filing of any paper or any further act on the part of the parties hereto
or the authenticating agent or such successor corporation.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at
any time terminate the agency of any authenticating agent by giving written
notice of termination to such authenticating agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time any authenticating agent shall cease to be eligible under this
Section, the Trustee shall promptly appoint a successor authenticating agent
(which may be the Trustee), shall give written notice of such appointment to
the Company and shall mail notice of such appointment to all holders of Notes
as the names and addresses of such holders appear on the Note register.
The Company agrees to pay to the authenticating agent from time to
time reasonable compensation for its services.
The provisions of Sections 8.2, 8.3, 8.4, 9.3 and this Section 17.11
shall be applicable to any authenticating agent.
Section 17.12 Execution in Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original, but such
counterparts shall together constitute but one and the same instrument.
The Bank of New York hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions hereinabove set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed all as of the date first written above.
TIVO INC.
By: /s/ Xxxxxxx Xxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxx
Title: President and Chief Executive Officer
Attest:
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------
Name : Xxxxx X. Xxxxxxxx
Title: Senior Vice President,
Finance and Administration
and Chief Financial Officer
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Treasurer
[SIGNATURE PAGE TO INDENTURE]
EXHIBIT A
---------
[FORM OF FACE OF NOTE]
[THE FOLLOWING PARAGRAPH SHALL APPEAR ON THE FACE OF EACH RESTRICTED NOTE.]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES FOR
THE BENEFIT OF THE ISSUER THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED OTHER THAN (1) TO THE ISSUER, (2) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT (AS
INDICATED BY THE BOX CHECKED BY THE TRANSFEROR ON THE CERTIFICATE OF TRANSFER
ON THE REVERSE OF THIS SECURITY), (3) TO A PERSON THAT IS AN ACCREDITED
INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT (AS INDICATED BY THE BOX CHECKED BY THE
TRANSFEROR ON THE CERTIFICATE OF TRANSFER ON THE REVERSE OF THIS SECURITY)
AND THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION, AND A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND
AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER IS AN EXHIBIT TO THE INDENTURE GOVERNING
THIS SECURITY AND MAY BE OBTAINED FROM THE TRUSTEE AND/OR THE TRANSFER AGENT)
IS DELIVERED PRIOR TO SUCH TRANSFER BY THE TRANSFEREE TO THE ISSUER AND THE
TRUSTEE AND/OR THE TRANSFER AGENT, (4) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT,
(5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT
OR (6) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY OTHER
APPLICABLE SECURITIES LAWS. THE HOLDER HEREOF AGREES THAT, PRIOR TO SUCH
TRANSFER, IT WILL FURNISH TO THE ISSUER AND THE TRUSTEE AN OPINION OF COUNSEL
IF THE ISSUER SO REQUESTS (OTHER THAN WITH RESPECT TO A TRANSFER PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT) AND SUCH
CERTIFICATES AND OTHER INFORMATION AS THEY MAY REASONABLY REQUIRE TO CONFIRM
THAT ANY TRANSFER BY IT OF THIS SECURITY COMPLIES WITH THE FOREGOING
RESTRICTIONS AND IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER HEREOF AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM
THIS SECURITY OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF SUCH LEGEND. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF THE ISSUER THAT IT IS (1) AN
ACCREDITED INVESTOR AS DEFINED IN RULE 501(A)(1), (2), (3), (5), (6) OR (7)
OF REGULATION D UNDER THE SECURITIES ACT AND THAT IT IS HOLDING THIS SECURITY
FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (2) A NON-U.S. PERSON
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE
REQUIREMENTS OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT.
[THE COMPANY MAY, BUT IS NOT OBLIGATED TO, INSTRUCT THE TRUSTEE TO PLACE THE
FOLLOWING PARAGRAPH ON THE FACE OF EACH NOTE HELD BY OR TRANSFERRED TO AN
"AFFILIATE" (AS DEFINED IN RULE 501(B) OF REGULATION D UNDER THE SECURITIES
ACT) OF THE COMPANY:]
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE HELD BY A PERSON WHO MAY
BE DEEMED TO BE AN AFFILIATE OF THE ISSUER FOR PURPOSES OF RULE 144
PROMULGATED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"),
AND MAY BE SOLD ONLY IN COMPLIANCE WITH RULE 144, PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO A VALID EXEMPTION
FROM REGISTRATION UNDER THE 1933 ACT.
TIVO INC.
7% Convertible Senior Notes due 2006
No. ___ $_______________
CUSIP No._____________
TiVo Inc., a corporation duly organized and validly existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to
____________________, or registered assigns, the principal sum of ___________
Dollars on August 15, 2006 and to pay interest on said principal sum
semi-annually on August 15 and February 15 of each year, commencing February
15, 2002 at the rate per annum specified in the title of this Note, accrued
from August 24, 2001. The interest so payable on any August 15 or February 15
will be paid to the person in whose name this Note (or one or more
Predecessor Notes) is registered at the close of business on the record date,
which shall be the August 1 or February 1 (whether or not a Business Day)
next preceding such August 15 or February 15, respectively; provided that any
such interest not punctually paid or duly provided for shall be payable as
provided in the Indenture. Payment of the principal of and interest accrued
on this Note (including Liquidated Damages, if any) shall be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, The City of New York, or at any other office or agency permitted
by the Indenture, in such lawful money of the United States of America as at
the time of payment shall be legal tender for the payment of public and
private debts; provided further, however, that, with respect to any holder of
Notes with an aggregate principal amount equal to or in excess of $500,000,
at the request of such holder in writing to the Company, interest on such
holder's Notes shall be paid by wire transfer in immediately available funds
in accordance with the written wire transfer instruction supplied by such
holder from time to time to the Trustee and paying agent (if different from
the Trustee) at least two days prior to the applicable record date.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, including, without limitation, provisions giving the
holder of this Note the right to convert this Note into Common Stock of the
Company on the terms and subject to the limitations referred to on the
reverse hereof and as more fully specified in the Indenture. Such further
provisions shall for all purposes have the same effect as though fully set
forth at this place.
This Note shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of said State, including, without limitation,
Section 5-1401 of the New York General Obligations Law.
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually
signed by the Trustee or a duly authorized authenticating agent under the
Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed.
TIVO INC.
By:
-----------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
[FORM OF CERTIFICATE OF AUTHENTICATION]
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one of
the Notes described
in the within-named Indenture.
Dated:
By:
-----------------------------
Authorized Signatory
[FORM OF REVERSE OF NOTE]
TIVO INC.
7% Convertible Senior Note Due 2006
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 7% Convertible Senior Notes due 2006 (herein called the
"Notes"), limited to the aggregate principal amount of $__________ all issued
or to be issued under and pursuant to an Indenture dated as of August 28,
2001 (herein called the "Indenture"), between the Company and The Bank of New
York, (herein called the "Trustee"), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the holders of the Notes. All
capitalized terms used herein without definition shall have the meaning set
forth in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of, premium, if any, and accrued
interest on all Notes may be declared, and upon said declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture. Liquidated damages paid pursuant to
Section 15.2 of the Indenture, if any, shall be paid within ten (10) Business
Days of the date from which such liquidated damages accrued pursuant to
Section 15.2. Liquidated Damages on the Notes paid pursuant to Section 3(e)
of the Registration Rights Agreement, if any, shall be paid at the times and
in the manner provided therein.
The Indenture contains provisions permitting the Company and the
Trustee in certain limited circumstances, without the consent of the holders
of the Notes, and in other circumstances, with the consent of the holders of
not less than a majority in aggregate principal amount of the Notes at the
time outstanding, evidenced as in the Indenture provided, to execute
amendments to the Indenture or supplemental indentures adding any provisions
to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the
rights of the holders of the Notes; provided, however, that no such amendment
or supplemental indenture shall (i) extend the fixed maturity of any Note, or
reduce the rate or extend the time of payment of interest thereon, or reduce
the principal amount thereof or premium, if any, thereon, or reduce any
amount payable on redemption or repurchase thereof, impair, or change in any
respect adverse to the holder of Notes, the obligation of the Company to
repurchase any Note at the option of the holder upon the happening of a
Repurchase Event, or impair or adversely affect the right of any Noteholder
to institute suit for the payment thereof, or change the currency in which
the Notes are payable, or impair or change in any respect adverse to the
Noteholders the right to convert the Notes into Common Stock subject to the
terms set forth in the Indenture, including Section 15.6 thereof, or
subordinate in right of payment the Notes to any other Indebtedness, without
the consent of the holder of each Note so affected, or (ii) reduce the
aforesaid percentage of Notes, the holders of which are required to consent
to any such supplemental indenture, without the consent of the holders of all
Notes then outstanding.
It is also provided in the Indenture that the holders of not less
than a majority in aggregate principal amount of the Notes at the time
outstanding may on behalf of the holders of all of the Notes waive any past
default or Event of Default under the Indenture and its consequences except
(i) a default in the payment of interest or premium, if any, on, or the
principal of, the Notes when due, (ii) a failure by the Company to convert
any Notes into Common Stock or (iii) a default in respect of a covenant or
provisions of the Indenture which under Article XI thereof cannot be modified
or amended without the consent of the holders of all Notes then outstanding.
Any such consent or waiver by the holder of this Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such holder
and upon all future holders and owners of this Note and any Notes which may
be issued in exchange or substitution hereof, irrespective of whether any
notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, premium, if any, and
interest on this Note as and when the same shall become due and payable in
accordance with the terms herein.
Interest on the Notes shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The Notes are issuable in registered form without coupons in
denominations of $1,000 principal amount and integral multiples thereof. At
the office or agency of the Company referred to on the face hereof, and in
the manner and subject to the limitations provided in the Indenture, without
payment of any service charge but with payment of a sum sufficient to cover
any tax, assessments or other governmental charges that may be imposed in
connection with any registration or exchange of Notes, Notes may be exchanged
for a like aggregate principal amount of Notes of other authorized
denominations.
The Company may, at its option, redeem all or any part of the Notes
on any date prior to maturity, upon mailing a notice of such redemption, and
at a redemption price equal to $1,000 per $1,000 principal amount of the
Notes to be redeemed, plus accrued and unpaid interest, if any, to, but
excluding, the date of redemption, provided, however, that, prior to August
28, 2004, the Company shall only have such right of redemption if (1) the
Closing Price per share of the Company's Common Stock has exceeded 200% of
the Conversion Price then in effect (not including the effect of any
adjustment to the Conversion Price made pursuant to Section 15.11 of the
Indenture) for at least 20 Trading Days within a period of 30 consecutive
Trading Days, and (2) within 10 days following the Determination Period, the
Company mails to holders the notice required pursuant to Section 3.2 (the
date of such notice, the "Notice Date"), and provided, further, that, prior
to the last date on which the shelf registration statement covering resales
of the Notes and the Common Stock issuable upon conversion of the Notes is
required to remain effective pursuant to the Registration Rights Agreement,
such shelf registration statement is effective and available for use at all
times during the period beginning 30 days prior to the Notice Date and ending
on the earlier of the redemption date or the last date on which the Shelf
Registration Statement is required to remain effective and available pursuant
to the Registration Rights Agreement, and is expected to remain effective and
available for use until the earlier of 30 days following the redemption date
or the last date on which the Shelf Registration Statement is required to
remain effective pursuant to the Registration Rights Agreement. If the
Company exercises such right of redemption prior to August 28, 2002, the
Company shall make an additional payment in cash to holders of the redeemed
Notes with respect to the Notes called for redemption, in an amount equal to
$70 per each $1,000 principal amount of the Note, less the amount of any
interest actually paid on such Notes prior to the date of notice of
redemption is mailed. The Company shall make this additional payment on all
Notes called for redemption prior to August 28, 2002, including any Notes
converted after the date the notice of redemption is mailed and before the
provisional redemption date.
If such notice of redemption has been given as provided in the
Indenture, the Notes or portion of Notes called for redemption shall, unless
converted into Common Stock pursuant to the terms of the Indenture, become
due and payable on the date and at the place or places stated in such notice
at the applicable redemption price, together with the Provisional Payment, if
any, and interest accrued to, but excluding, the date fixed for redemption,
and on and after such date (unless the Company shall default in the payment
of such Notes at the redemption price, together with the Provisional Payment,
if any, and interest accrued to, but excluding, said date) interest on the
Notes or portion of Notes so called for redemption shall cease to accrue and
such Notes shall cease after the close of business on the Business Day next
preceding the date fixed for redemption to be convertible into Common Stock
and, except as provided in Sections 8.5 and 13.4 of the Indenture, to be
entitled to any benefit or security under the Indenture, and the holders of
such Notes shall have no right in respect of such Notes except the right to
receive the redemption price and unpaid interest to, but excluding, the date
fixed for redemption. On presentation and surrender of such Notes at a place
of payment specified in such notice, such Notes or the specified portions
thereof to be redeemed shall be paid and redeemed by the Company at the
applicable redemption price, together with the Provisional Payment, if any,
and interest accrued thereon to, but excluding, the date fixed for
redemption; provided that, if the applicable redemption date is an interest
payment date, the semi-annual payment of interest becoming due on such date
shall be payable to the holders of such Notes registered as such on the
relevant record date subject to the terms and provisions of Section 2.3 of
the Indenture.
The Notes are not subject to redemption through the operation of any
sinking fund.
Upon the occurrence of a "Repurchase Event," the Noteholder has the
right, at such holder's option, to require the Company to repurchase all or
any portion of such holder's Notes on the 40th calendar day (or, if such 40th
day is not a Business Day, the next succeeding Business Day) after notice of
such Repurchase Event at a price equal to 110% of the principal amount of the
Notes such holder elects to require the Company to repurchase, together, in
each case, with accrued interest to the date fixed for repurchase; provided
that if such repurchase date is August 15 or February 15, then the interest
payable on such date shall be paid to the holder of record of the Note on the
next preceding August 15 or February 15, respectively. The Company or, at the
written request of the Company, the Trustee shall mail to all holders of
record of the Notes a notice of the occurrence of a Repurchase Event and of
the repurchase right arising as a result thereof on or before the tenth
(10th) calendar day after the occurrence of such Repurchase Event. If a
redemption date pursuant to Article III of the Indenture shall occur prior to
any repurchase date established pursuant to a Company Notice under Section
16.2 of the Indenture, provided that the Company shall have deposited or set
aside an amount of money sufficient to redeem such Notes as set forth in
Section 3.2 of the Indenture on or before such repurchase date, all such
Notes shall be redeemed pursuant to Article III of the Indenture and the
repurchase rights under Article XVI of the Indenture shall have no effect.
Subject to the provisions of the Indenture, the holder hereof has
the right, at its option, at any time following the date of original issuance
of the Notes and prior to the close of business on August 15, 2006, (except
that, with respect to any Note or portion of a Note that shall be called for
redemption, such right shall terminate, except as otherwise provided in the
Indenture, at the close of business on the Business Day next preceding the
date fixed for redemption unless the Company shall default in payment due
upon redemption), to convert the principal hereof or any portion of such
principal which is $1,000 or an integral multiple thereof, into that number
of fully paid and non-assessable shares of the Company's Common Stock, as
said shares shall be constituted at the date of conversion, obtained by
dividing the principal amount of this Note or portion thereof to be converted
by the conversion price of $6.73 or such conversion price as adjusted from
time to time as provided in the Indenture, upon surrender of this Note,
together with a conversion notice as provided in the Indenture and this Note,
to the Company at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, or at any other
office or agency permitted by the Indenture, and, unless the shares issuable
on conversion are to be issued in the same name as this Note, duly endorsed
by, or accompanied by instruments of transfer in form satisfactory to the
Company duly executed by, the holder or by his duly authorized attorney.
Copies of such notice shall also be sent via facsimile to the Company,
attention General Counsel ((000) 000-0000) and Xxxxxx & Xxxxxxx, attention
Xxxx Xxxxxxx ((000) 000-0000). The Company shall pay in cash, on this Note or
portion thereof surrendered for conversion during the period from the close
of business on any interest payment date to which interest has been fully
paid through the close of business on the Business Day preceding the record
date for the next such interest payment date, accrued and unpaid interest, if
any, to, but excluding, the date of conversion. Any such payment of interest
shall be made with ten (10) Business Days after the Conversion Date.
Notwithstanding the foregoing, if this Note shall be surrendered for
conversion during the period from the close of business on any record date
for any interest payment date through the close of business on the Business
Day next preceding such interest payment date, this Note (unless the Note or
the portion thereof being converted shall have been called for redemption
pursuant to a redemption notice mailed to the Noteholders in accordance with
Section 3.2 of the Indenture or shall have become due prior to such interest
payment date as a result of a Repurchase Event) must be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such
interest payment date on the principal amount 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 Notes. No
fractional shares of Common Stock will be issued upon any conversion, but an
adjustment in cash will be paid to the holder, as provided in the Indenture,
in respect of any fraction of a share which would otherwise be issuable upon
the surrender of any Note or Notes for conversion.
In addition to any adjustments to the Conversion Price required to
be made pursuant to Section 15.5 of the Indenture, the Conversion Price (1)
shall be adjusted on the date which is the earlier of (A) the date by which
the Company is required to have had the Shelf Registration Statement declared
effective by the Securities and Exchange Commission or be subject to
Liquidated Damages under the Registration Rights Agreement or (B) two
calendar days after the date on which the Commission declares effective the
Shelf Registration Statement (the earlier of such date, the "Registration
Date"), if the Current Market Price on the Registration Date is less than the
Conversion Price otherwise in effect on the Registration Date, to the greater
of such Current Market Price or 75% of the Benchmark Price and (2) shall be
adjusted on August 23, 2002 (the "August 23, 2002 Date" and, together with
the Registration Date, the "Adjustment Date"), if the Current Market Price on
the August 23, 2002 Date is less than the Conversion Price otherwise in
effect on the August 23, 2002 Date, to the greater of such Current Market
Price or 75% of the Benchmark Price, which Benchmark Price is subject to
adjustment as provided in the Indenture.
In addition to any adjustment to the Conversion Price required to be
made pursuant to Section 15.5, Section 15.6 or Section 15.11(a) of the
Indenture, the Conversion Price shall be adjusted in accordance with Section
15.11(b) of the Indenture.
In connection with any redemption of Notes, the Company may arrange
for the purchase and conversion of any Notes not converted prior to the
expiration of such conversion right by an agreement with one or more
investment bankers or other purchasers to purchase such Notes by paying to
the Trustee in trust for the Noteholders, on or before the date fixed for
redemption, an amount not less than the applicable redemption price, together
with the Provisional Payment, if any, and interest accrued to the date fixed
for redemption, of such Notes.
Upon due presentment for registration of transfer of this Note and
any other documents as may be required to be delivered by the Indenture at
the office or agency of the Company in the Borough of Manhattan, The City of
New York, or at any other office or agency permitted by the Indenture, a new
Note or Notes of authorized denominations for an equal aggregate principal
amount will be issued to the transferee in exchange thereof, subject to the
requirements and limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any paying
agent, any conversion agent and any Note registrar may deem and treat the
registered holder hereof as the absolute owner of this Note (whether or not
this Note shall be overdue and notwithstanding any notation of ownership or
other writing hereon), for the purpose of receiving payment hereof (including
Liquidated Damages to the extent accrued but unpaid), or on account hereof,
for the conversion hereof and for all other purposes; and neither the Company
nor the Trustee nor any other authenticating agent nor any paying agent nor
any other conversion agent nor any Note registrar shall be affected by any
notice to the contrary. All such payments so made to, or upon the order of,
such registered holder for the time being shall be valid, and, to the extent
of the sum or sums so paid, effectual to satisfy and discharge the liability
for monies payable on this Note.
No recourse for the payment of the principal of or any premium or
interest on this Note (including Liquidated Damages, if any), or for any
claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or
any indenture supplemental thereto or in any Note, or because of the creation
of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer, director or subsidiary,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration
for the issue hereof, expressly waived and released.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the
face of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -
_____________________Custodian
(Cust)
TEN ENT - as tenants by the _____________________________
entireties
(Minor)
JT TEN - as joint tenants with Uniform Gifts to
right of survivorship and Minors Act _________________
not as tenants in common (State)
Additional abbreviations may also be used
though not in the above list.
[FORM OF CONVERSION NOTICE]
To: TiVo Inc.
The undersigned registered owner of this Note hereby irrevocably
exercises the option to convert this Note, or the portion hereof (which is
$1,000 principal amount or an integral multiple thereof) below designated,
into shares of Common Stock in accordance with the terms of the Indenture
referred to in this Note, and directs that the shares issuable and
deliverable upon such conversion, together with any check in payment for
fractional shares and any Notes representing any unconverted principal amount
hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion of this
Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of
interest accompanies this Note.
Principal amount to be converted
(if less than all): $______,000
Dated: __________________
--------------------------------
--------------------------------
Signature(s)
-------------------------------
Signature Guarantee
Signature(s) must be guaranteed by
an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit
unions) with membership in an
approved signature guarantee
medallion program pursuant to
Securities and Exchange Commission
Rule 17Ad-15 if shares of Common
Stock are to be issued, or Notes to
be delivered, other than to and in
the name of the registered holder.
This form must be delivered to the Trustee at the Corporate Trust Office,
which initially shall be 000 Xxxxxxx Xxxxxx, Xxxxx 00X, Xxx Xxxx, X.X. 10286,
Attention: Corporate Trust Administration. Copies of this form must be sent
by facsimile to TiVo Inc., attention General Counsel ((000) 000-0000) and
Xxxxxx & Xxxxxxx, attention Xxxx Xxxxxxx ((000) 000-0000).
1. COMMON STOCK AND/OR CHECK TO BE ISSUED TO:
IF IN CERTIFICATED FORM (Common Stock or Notes:
Social Security Number or identifying number: ______________________________
Name: ______________________________________________________________________
Street Address:_____________________________________________________________
City, State and Zip Code:___________________________________________________
IF IN BOOK-ENTRY FORM THROUGH DTC:
ACCOUNT NUMBER:_____________________________________________________________
ACCOUNT NAME:_______________________________________________________________
REMAINING UNCONVERTED PRINCIPAL AMOUNT OF NOTES TO BE ISSUED IN
CERTIFICATED FORM TO:
Social Security Number or identifying number: ______________________________
Name: ______________________________________________________________________
Street Address:_____________________________________________________________
City, State and Zip Code:___________________________________________________
[FORM OF OPTION TO ELECT REPAYMENT
UPON A REPURCHASE EVENT]
To: TiVo Inc.
The undersigned registered owner of this Note hereby acknowledges
receipt of a notice from TiVo Inc. (the "Company") as to the occurrence of a
Repurchase Event with respect to the Company and requests and instructs the
Company to repay the entire principal amount of this Note, or the portion
thereof (which is $1,000 principal amount or an integral multiple thereof)
below designated, in accordance with the terms of the Indenture referred to
in this Note, together with accrued interest (including Liquidated Damages,
if any) to, but excluding, such date, to the registered holder hereof.
Dated: ____________________
______________________________________
______________________________________
Signature(s)
Social Security or Other Taxpayer
Identification Number
Principal amount to be repaid (if less
than all): $______,000
NOTICE: The above signatures of the
holder(s) hereof must correspond
with the name as written upon the
face of the Note in every particular
without alteration or enlargement or
any change whatever.
[FORM OF ASSIGNMENT AND TRANSFER]
For value received ____________________________ hereby sell(s),
assign(s) and transfer(s) unto _________________ (Please insert social
security or Taxpayer Identification Number of assignee) the within Note, and
hereby irrevocably constitutes and appoints ________ _____________ attorney
to transfer the said Note on the books of the Company, with full power of
substitution in the premises.
In connection with any transfer of the within Note occurring within
two years (or such shorter holding period required under Rule 144(k) of the
Securities Act) of the original issuance of such Note (unless such Note is
being transferred pursuant to a registration statement that has been declared
effective under the Securities Act), the undersigned confirms that such Note
is being transferred:
_
|_| *To TiVo Inc. or a subsidiary thereof; or
_
|_| *To an Institutional Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
_
|_| *To an Individual Accredited Investor pursuant to and in
compliance with the Securities Act of 1933, as amended; or
_
|_| *In an offshore transaction pursuant to and in compliance
with Regulation S under the Securities Act of 1933, as
amended; or
_
|_| *Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended;
and unless the box below is checked, the undersigned confirms that such Note
is not being transferred to an "affiliate" of the Company as defined in Rule
144 under the Securities Act of 1933, as amended (an "Affiliate"):
_
|_| *The transferee is an Affiliate of the Company.
Dated: ________________________
_______________________________
_______________________________
Signature(s)
_______________________________
Signature Guarantee
Signature(s) must be guaranteed by
an eligible Guarantor Institution
(banks, stock brokers, savings and
loan associations and credit
unions) with membership in an
approved signature guarantee
medallion program pursuant to
Securities and Exchange Commission
Rule 17Ad-15 if shares of Common
Stock are to be issued, or Notes to
be delivered, other than to and in
the name of the registered holder.
NOTICE: The signature on the conversion notice, the option to elect
repurchase upon a Repurchase Event or the assignment must correspond with the
name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
EXHIBIT B
FORM OF TRANSFER LETTER OF REPRESENTATIONS
(TO BE DELIVERED BY HOLDER
UPON CERTAIN TRANSFERS OF NOTES WITHOUT
EFFECTIVE REGISTRATION STATEMENT)
We are delivering this letter in connection with the sale or
transfer to us of Notes (as defined in the Indenture, dated as of August 28,
2001, between TiVo Inc., a Delaware corporation (the "Company") and The Bank
of New York, a New York banking corporation (the "Trustee")) other than
pursuant to a registration statement that has been declared effective under
the Securities Act of 1933, as amended (the "Securities Act").
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of
Rule 501(a)(1),(2), (3), (5), (6) or (7) under the Securities Act;
(ii) any purchase or receipt of the Notes by us will be for
investment purposes and for our own account, not as a nominee or
agent;
(iii) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and
risks of purchasing or receiving the Notes;
(iv) we do not have need for liquidity in our investment in
the Notes, we have the ability to bear the economic risks of our
investment in the Notes for an indefinite period of time and we are
able to afford the complete loss of our investment in the Notes;
(v) we are not acquiring the Notes with a view to any
distribution thereof in a transaction that would violate the
Securities Act or the securities laws of any State of the United
States or any other applicable jurisdiction, and we have no present
intention of selling, granting any participation in, or otherwise
distributing the same;
(vi) we have had access to such information regarding the
Company necessary in order for us to make an informed decision and
any such information which we have requested have been made
available for us or our attorney, accountant, or advisor; and
(vii) we or our attorney, accountant, or advisor have had a
reasonable opportunity to ask questions of and receive answers from
a person or persons acting on behalf of the Company concerning the
business, management and financial affairs of the Company and the
terms and conditions of the acquisition by us of the Notes and all
such questions have been answered to our full satisfaction, and we
have acquired sufficient information about the Company to make an
informed and knowledgeable decision to acquire the Notes.
We understand that the Notes have not been registered under the
Securities Act, and we agree, on our own behalf and on behalf of each account
for which we acquire any Notes, that such Notes may be offered, resold,
pledged or otherwise transferred only (i) in accordance with an exemption
from the registration requirements of the Securities Act, (ii) to the Company
or (iii) pursuant to an effective registration statement, and, in each case,
in accordance with any applicable securities laws of any State of the United
States or any other applicable jurisdiction. We agree that we will furnish
the Company and the Trustee an opinion of counsel, if the Company so
requests, that the foregoing restrictions on transfer have been complied
with. We understand that the Trustee will not be required to accept for
registration of transfer any Notes, except upon presentation of evidence
satisfactory to the Company, including an opinion of counsel if the Company
so requests, that the foregoing restrictions on transfer have been complied
with.
We acknowledge that the Company and others will rely upon our
confirmations, acknowledgements and agreements set forth herein, and we agree
to notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
_________________________________
(Name)
By:______________________________
Name:
Title:
Address:
