Exhibit 99.2
EXECUTION COPY
$50,000,000
CHIPPAC, INC.
8% CONVERTIBLE SUBORDINATED NOTES DUE 2011
PURCHASE AGREEMENT
June 11, 2001
Citicorp Mezzanine III, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTORY. ChipPAC, Inc., a Delaware corporation (the "COMPANY"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to Citicorp Mezzanine III, L.P. (the "PURCHASER") U.S. $50,000,000 principal
amount of its 8% Convertible Subordinated Notes Due 2011 (the "SECURITIES").
ChipPAC International Company Limited, a British Virgin Islands corporation
("CHIPPAC INTERNATIONAL"), proposes, subject to the terms and conditions stated
in a certain Purchase Agreement, dated the date hereof (the "12 3/4% NOTES
PURCHASE AGREEMENT"), among Citicorp Capital Investors, Limited, a Delaware
corporation ("CITICORP CAPITAL"), ChipPAC International and the Company, to
issue and sell to Citicorp Capital U.S. $15,000,000 principal amount of its
12 3/4% Senior Subordinated Notes Due 2009 (the "12 3/4% NOTES"). The
transactions contemplated by this Agreement and the 12 3/4% Notes Purchase
Agreement are collectively referred to herein as the "DEBT TRANSACTIONS." The
Securities are to be issued under an indenture (the "INDENTURE"), between the
Company and Firstar Bank, N.A., as Trustee ("FIRSTAR"), on a private placement
basis pursuant to an exemption under Section 4(2) of the United States
Securities Act of 1933 (the "SECURITIES ACT"). The 12 3/4% Notes are to be
issued under the Indenture, dated July 29, 1999, as supplemented on August 5,
1999 (the "12 3/4% INDENTURE"), among ChipPAC International, the Company and
Firstar on a private placement basis pursuant to an exemption under Section 4(2)
of the Securities Act.
Holders (including subsequent transferees) of the Securities will have
the registration rights set forth in the Registration Rights Agreement, dated as
of the Closing Date (as hereinafter
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defined) (the "REGISTRATION RIGHTS AGREEMENT"), to be entered into between the
Company and the Purchaser. Pursuant to the Registration Rights Agreement, the
Company has agreed to file with the Securities and Exchange Commission (the
"COMMISSION") a shelf registration statement (the "SHELF REGISTRATION
STATEMENT") pursuant to Rule 415 under the Securities Act, to register sales of
the Securities and shares of the Company's Class A Common Stock, par value $.01
per share (the "COMMON STOCK"), issuable upon the conversion thereof following
the sale of the Securities contemplated hereby. The Company hereby agrees with
the Purchaser as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, the Purchaser that:
(a) Except as disclosed in the Exchange Act Reports (as hereinafter
defined), on the date of this Agreement, the Company's Annual Report on
Form 10-K most recently filed with the Commission, and all subsequent
reports which have been filed by the Company with the Commission or sent to
stockholders pursuant to the Securities Exchange Act of 1934 (the "EXCHANGE
ACT") prior to or as of the date hereof and the description of Common Stock
contained in the Company's Registration Statement on Form 8-A
(collectively, the "EXCHANGE ACT REPORTS") do not include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading. Such documents, when they were filed
with the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
thereunder.
(b) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Exchange Act Reports; and the Company is
duly qualified to do business as a foreign corporation in good standing in
all other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification, except where the
failure to be so qualified and in good standing would not reasonably be
expected to individually or in the aggregate (x) result in a material
adverse effect on the properties, business, results of operations,
financial condition or prospects of the Company and its subsidiaries taken
as a whole, (y) interfere with or adversely affect the issuance or
marketability of the Securities or (z) in any manner draw into question the
validity of this Agreement or the Exchange Act Reports (any of the events
set forth in clauses (x), (y) or (z), a "MATERIAL ADVERSE EFFECT").
(c) Each subsidiary of the Company has been duly incorporated and is
an existing corporation in good standing (to the extent such a concept
exists in such jurisdiction) under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and
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other) to own its properties and conduct its business as described in the
Exchange Act Reports; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation in good standing (to the extent
such a concept exists in such jurisdiction) in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except where such failure to be so qualified
and in good standing could not reasonably be expected, individually or in
the aggregate, to have a Material Adverse Effect; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and
except for pledges in favor of Credit Suisse First Boston, as collateral
agent, under the Credit Agreement, dated as of August 5, 1999, as amended
(the "CSFB CREDIT AGREEMENT"), by and among ChipPAC International Company
Limited, the Company, the lenders listed therein and Credit Suisse First
Boston, the capital stock of each subsidiary owned by the Company, directly
or through subsidiaries, is owned free from liens, encumbrances and
defects.
(d) Each of the Indenture and the Registration Rights Agreement has
been duly authorized by the Company; the Securities have been duly
authorized by the Company; and when the Securities are delivered and paid
for pursuant to this Agreement and the Indenture on the Closing Date (as
hereinafter defined), the Indenture and the Registration Rights Agreement
will have been duly executed and delivered by the Company, such Securities
will have been duly executed, authenticated, issued and delivered and will
conform to the descriptions thereof contained in the Indenture (when
executed and delivered by the parties thereto) and such Securities will
constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles (regardless of whether enforceability is
considered in a proceeding at law or equity).
(e) As of June 11, 2001, (i) the authorized capital stock of the
Company consisted of 250,000,000 shares of Common Stock, 250,000,000 shares
of Class B common stock, par value $.01 per share (the "CLASS B COMMON
STOCK"), and 10,000,000 shares of preferred stock, par value $.01 per share
(the "PREFERRED STOCK"), of which 68,681,729 shares of Common Stock, and no
shares of Class B Common Stock or Preferred Stock were issued and
outstanding. In addition, options to purchase 5,315,183 shares of Common
Stock are outstanding under incentive compensation plans described in the
Exchange Act Reports and no other options, warrants and other rights
(including, without limitation, preemptive rights) to purchase or subscribe
for capital stock of the Company were issued and outstanding. When the
Securities are delivered and paid for pursuant to this Agreement on the
Closing
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Date, such Securities will be convertible into shares of Common Stock (the
"UNDERLYING SHARES"), of the Company in accordance with the terms of the
Indenture; the Underlying Shares initially issuable upon conversion of such
Securities have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly issued,
fully paid and nonassessable; all outstanding shares of capital stock of
the Company including, without limitation, the Underlying Shares, have been
duly authorized and validly issued, are fully paid and nonassessable; and
the stockholders of the Company have no preemptive rights with respect to
the Securities or the Underlying Shares that have not been waived.
(f) Except for (i) obligations to Credit Suisse First Boston
Corporation ("CSFB") pursuant to a certain engagement letter, dated
February 1, 2001 (the "CSFB ENGAGEMENT AGREEMENT"), between CSFB and the
Company and (ii) Xxxxxxxx Xxxxx & Company, Inc. ("XXXXXXXX") pursuant to a
certain engagement letter, dated June 5, 2001 (the "XXXXXXXX ENGAGEMENT
AGREEMENT"), between the Company and Xxxxxxxx, there are no contracts,
agreements or understandings between the Company or its subsidiaries and
any person that would give rise to a valid claim against the Company or its
subsidiaries or the Purchaser for a brokerage commission, finder's fee or
other like payment in connection with the sale of the Securities. The
Purchaser has no liability or obligation (monetary or otherwise) to pay any
fees, expenses or commissions in connection with the CSFB Engagement
Agreement or the Xxxxxxxx Engagement Agreement. The Company has furnished
to the Purchaser true, correct and complete copies of the CSFB Engagement
Agreement and the Xxxxxxxx Engagement Agreement.
(g) There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Shelf Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act, other than (i) the
Amended and Restated Registration Agreement, dated as of August 5, 1999, as
amended, among the Company, affiliates of Xxxx Capital, Inc. and SXI Group
LLC and their designees, Hynix Semiconductor America Inc. and Intel, and
(ii) the Registration Rights Agreement, dated the Closing Date, among
Citicorp Mezzanine III, L.P, the Company and the other parties thereto.
(h) Subject to the express assumptions set forth in Section 2(p)
below, no consent, approval, authorization, order, registration or
qualification of, or filing with, any
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governmental agency or body or any court is required for the consummation
of the transactions contemplated by this Agreement and the Registration
Rights Agreement in connection with the issuance and sale of the Securities
by the Company, except (i) as required pursuant to the Registration Rights
Agreement, including those required under the Securities Act and the rules
and regulations of the Commission thereunder, (ii) upon the approval of the
Underlying Shares issuable upon the conversion of the Securities for
quotation on the Nasdaq National Market, (iii) such consents, approvals,
authorizations or qualifications as may be required under state securities
laws in connection with the purchase of the Securities and the Underlying
Shares by the Purchaser and (iv) in connection with the qualification of
the Indenture under the Trust Indenture Act (as defined in paragraph 2(p)
below) as may be required under the Registration Rights Agreement.
(i) The execution, delivery and performance of the Indenture, the
Registration Rights Agreement and this Agreement, and the issuance and sale
of the Securities and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms and provisions of,
or constitute a default under, (i) any statute, rule, regulation or order
of any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties, or (ii) any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or any
such subsidiary is bound or to which any of the properties of the Company
or any such subsidiary is subject, or (iii) the charter or by-laws of the
Company or any such subsidiary, except (A) in each case, that any rights to
indemnity and contribution may be limited by federal and state securities
laws and public policy considerations and (B) in the case of clauses (i)
and (ii) for such breaches, violations or defaults that would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect; and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by this Agreement.
(j) This Agreement has been duly authorized, executed and delivered by
the Company.
(k) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its subsidiaries, would
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
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(l) The Company and its subsidiaries own, possess, have the right to
use or can acquire on reasonable terms, adequate trademarks, trade names
and other rights to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, "INTELLECTUAL
PROPERTY RIGHTS") necessary to conduct the business now operated by them,
or presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property Rights that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a Material Adverse Effect.
(m) The financial statements included in the Exchange Act Reports
present fairly the financial position of the Company and its consolidated
or combined subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent basis;
and the assumptions used in preparing the pro forma financial statements
included in the Exchange Act Reports provide a reasonable basis for
presenting the significant effects directly attributable to the
transactions or events described therein, the related pro forma adjustments
give appropriate effect to those assumptions, and the pro forma columns
therein reflect the proper application of those adjustments to the
corresponding historical financial statement amounts.
(n) Except as disclosed in the Exchange Act Reports, since the date of
the latest audited financial statements included in the Exchange Act
Reports there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Exchange Act Reports, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(o) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of
1940 (the "INVESTMENT COMPANY ACT"); and the Company is not and, after
giving effect to the offering and sale of the Securities, will not be an
"investment company" as defined in the Investment Company Act.
(p) Assuming that the representations and warranties of the Purchaser
contained in Section 4 below are true in all material respects, the offer
and sale of the Securities by the Company to the Purchaser in the manner
contemplated by this Agreement will be exempt from the registration
requirements of the Securities Act by reason of Section 4(2) thereof; and
it is not necessary to qualify an indenture in respect of the Securities
under the
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United States Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT"), except as contemplated by the Registration Rights Agreement.
(q) Neither the Company, nor any of its affiliates, nor any person
acting on its or their behalf (i) has within the six-month period prior to
the date hereof, offered or sold the Securities or any securities of the
same class or series as the Securities or (ii) has offered or will offer or
sell the Securities by means of any form of general solicitation or general
advertising within the meaning of Rule 502(c) under the Securities Act.
(r) The Company is subject to Section 13 or 15(d) of the Exchange Act.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth,
if requested by the Company, the Purchaser agrees to purchase from the
Company the Securities, at a purchase price of 100% of the principal amount
thereof.
(b) In consideration of the Purchaser's commitment to purchase the
Securities as set forth in Section 3(a), the Company agrees to pay to the
Purchaser (or its designee) a commitment fee in an amount equal to 3% of
the principal amount of the Securities. Such commitment fee shall be fully
earned upon execution of this Purchase Agreement and shall be payable in
full in cash upon the earlier of (i) the consummation of the transactions
contemplated hereby and (ii) the termination of this Purchase Agreement.
(c) The Company will deliver, against payment of the purchase price,
the Securities in the form of one or more permanent global securities in
definitive form without interest coupons (the "GLOBAL SECURITIES")
deposited with the Trustee as custodian for the Depositary Trust Company
("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent Global Securities will be held only in
book-entry form through DTC. The Global Securities shall include the legend
regarding restrictions on transfer set forth in the Indenture. The
Underlying Shares shall include the legend regarding restrictions on
transfer set forth in the Indenture.
(d) Payment for the Securities shall be made by the Purchaser in
Federal (same day) funds by wire transfer to an account at a bank
designated by the Company and acceptable to the Purchaser at a location to
be mutually determined by the Company and the Purchaser commencing at 10:00
a.m. (New York time) on such date as the Purchaser and the Company mutually
determine, such time being herein referred to as the "CLOSING DATE,"
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against delivery to the Trustee as custodian for DTC of the Global
Securities representing all the Securities. The Global Securities will be
made available for checking at least 24 hours prior to the Closing Date.
4. REPRESENTATIONS BY THE PURCHASER. The Purchaser represents and warrants
to the Company that:
(a) The Purchaser (or its principals or advisors) has substantial
experience in evaluating and investing in private placement transactions of
securities in companies similar to the Company so that it is capable of
evaluating the merits and risks of its investment in the Company and has
the capacity to protect its own interests. The Purchaser acknowledges that
its investment in the Company is highly speculative and entails a
substantial degree of risk and the Purchaser is in a position to lose the
entire amount of such investment.
(b) The Purchaser represents and warrants to the Company that it is an
"accredited investor" within the meaning of Regulation D under the
Securities Act.
(c) The Purchaser acknowledges that the Securities and the Underlying
Shares have not been registered under the Securities Act by reason of a
specific exemption from the registration provision of the Securities Act,
the availability of which depends upon, among other things, the bona fide
nature of the accuracy of the Purchaser's representations as expressed
herein, and such Securities and the Underlying Shares must be held
indefinitely and may not be offered or sold unless subsequently registered
under the Securities Act or unless an exemption from the registration
requirements of the Securities Act is available.
(d) The Purchaser understands that the certificates evidencing the
Securities and the Underlying Shares will be imprinted with a legend that
prohibits the transfer of such securities unless they are registered or
such registration is not required.
(e) The Purchaser is acquiring the Securities and the Underlying
Shares for investment for its own account, not as a nominee or agent, and
not with the view to, or for resale in connection with, any distribution
thereof other than in compliance with the Securities Act. The Purchaser
understands that no public market now exists for the Securities and that
the Company has made no assurances that a public market will ever exist for
the Securities.
(f) The Purchaser has had an opportunity to discuss the Company's
business, management and financial affairs with its management. The
Purchaser has also had an opportunity to ask questions of officers of the
Company.
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(g) This Agreement and the Registration Rights Agreement, when
executed and delivered by the Purchaser, will constitute valid and legally
binding obligations of the Purchaser, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles
(regardless of whether enforceability is considered in a proceeding at law
or equity).
(h) The Purchaser has not engaged any brokers, finders or agents, and
the Company has not incurred, and will not incur, directly or indirectly,
as a result of any action taken by the Purchaser, any liability for
brokerage or finders' fees or agents' commissions or any similar charges in
connection with the transactions contemplated hereby. In the event that the
preceding sentence is in any way inaccurate, such Purchaser agrees to
indemnify and hold harmless the Company from any liability for any
commission or compensation in the nature of a finder's fee (and the costs
and expense of defending against such liability) for which the Company or
any of its officers, directors, employees or representatives, is
responsible.
(i) The Purchaser has reviewed with its own tax advisors the federal,
state, local and foreign tax consequences of this investment and the
transactions contemplated hereby. With respect to such matters, the
Purchaser relies solely on such advisors and not on any statements or
representations of the Company or any of its agents. The Purchaser
understands that it (and not the Company) shall be responsible for its own
tax liability that may arise as a result of this investment or the
transactions contemplated hereby.
5. CERTAIN AGREEMENTS OF THE COMPANY. The Company agrees with the Purchaser
that:
(a) The Company will cooperate with the Purchaser and its counsel in
connection with the registration and qualification of the Securities for
sale and the determination of their eligibility for investment under the
laws of such states in the United States as the Purchaser shall designate
and do all things necessary to continue such qualifications in effect so
long as required for the resale of the Securities by the Purchaser,
provided that the Company will not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such
state.
(b) During the period of five years hereafter, the Company will
furnish to the Purchaser, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year via
the same method used to distribute such report generally to all
stockholders of the Company, if such distribution is effected other than
via the Securities and Exchange Commission's Electronic Data Gathering,
Analysis and Retrieval system
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("XXXXX"); and the Company will furnish to the Purchaser as soon as
available, a copy of each report and any definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
stockholders, which copies shall in each case be sent to the Purchaser via
the same method used to distribute such report or proxy statement generally
to all stockholders of the Company, if such distribution is effected other
than via XXXXX.
(c) The Company will pay all expenses incidental to the performance of
its obligations under this Agreement, the Indenture and the Registration
Rights Agreement, including (i) the fees and expenses of Trustee and its
professional advisers; (ii) all expenses in connection with the execution,
issue, authentication, packaging and initial delivery of the Securities,
the preparation and printing of this Agreement, the Securities, the
Indenture, the Registration Rights Agreement and any other document
relating to the issuance, offer, sale and delivery of the Securities; (iii)
the cost of qualifying the Securities for trading in The PortalSM Market
("PORTAL") of The Nasdaq Stock Market, Inc. and any expenses incidental
thereto; and (iv) any fees charged by investment rating agencies for the
rating of the Securities.
(d) The Company will arrange for the inclusion for quotation of the
Underlying Shares on The Nasdaq Stock Market, Inc.'s National Market.
(e) The Company and ChipPAC International shall use approximately
$50.0 million of the net proceeds from the sale of the Securities and the
12 3/4% Notes to repay certain indebtedness incurred pursuant to the CSFB
Credit Agreement. The remainder of the net proceeds shall be used for
general corporate purposes.
(f) The Company shall not enter into any transaction that would result
in a "sale" of securities by the Purchaser, Citicorp Venture Capital, Ltd.
("CVC"), CCT Partners VI, L.P., SXI Group LLC or any of their affiliates
(collectively, the "SHAREHOLDERS") under Section 16(b) of the Exchange Act,
and the rules promulgated thereunder, within the six-month period after the
date of purchase of the Securities by the Purchaser unless the transaction
provides for at least one of the following: (i) the Purchaser and CVC are
reasonably satisfied that no such "sale" for Section 16(b) purposes shall
occur until after the registration of the Company's outstanding securities
under the Exchange Act shall have been terminated, (ii) such "sale" by the
Shareholders is made in a transaction in which 100% of the outstanding
securities of the Company are acquired for cash in a merger transaction,
the Company and the acquiror agree to indemnify the Shareholders for any
and all liabilities, claims and expenses arising out of or relating to
Section 16(b) under the Exchange Act in connection with such transaction,
and the terms of such indemnity are acceptable to the Purchaser and CVC, in
their sole discretion, or (iii) the Company and the acquiror agree to
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indemnify the Shareholders for any and all liabilities, claims and expenses
arising out of or relating to Section 16(b) under the Exchange Act in
connection with such transaction, and the terms of such indemnity and the
identity of the acquiror are acceptable to the Purchaser and CVC in their
sole discretion.
6. CONDITIONS OF THE OBLIGATIONS OF THE PURCHASER. The obligations of the
Purchaser to purchase and pay for the Securities on the Closing Date will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of officers of the Company
made pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) The Purchaser shall have received an opinion, dated the Closing
Date, of Xxxxxxxx & Xxxxx, counsel for the Company, in form and substance
reasonably acceptable to the Purchaser and the Company.
(b) The Company shall have furnished to the Purchaser the opinion of
Xxxxxxxx X. XxXxxx, Senior Vice President Administration, General Counsel
and Secretary of the Company, dated the Closing Date, in form and substance
reasonably acceptable to the Purchaser and the Company.
(c) The Purchaser shall have received a certificate, dated such
Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that (i) no event shall have occurred and be continuing or would result
from the consummation of the transactions contemplated by this Agreement
which would constitute a Default (as defined in the Indenture) or Event of
Default (as defined in the Indenture) and (ii) that the Company has
complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to such Closing Date.
(d) On or before the Closing Date, the Purchaser shall have received
the following items, each of which shall be in form and substance
satisfactory to the Purchaser and, unless otherwise noted, dated the
Closing Date:
(i) A certified copy of the charter of the Company, certified by
the Secretary of the State of Delaware, together with a good standing
certificate from the Secretary of State of Delaware, each to be dated
a recent date prior to the Closing Date;
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(ii) A copy of the bylaws of the Company, such copy certified as
of the Closing Date by the Secretary of the Company;
(iii) Resolutions of the Company's Board of Directors and, if
necessary, stockholders, approving and authorizing the execution,
delivery and performance of the Registration Rights Agreement, the
Indenture and this Agreement and any other documents, instruments and
certificates required to be executed by each party thereto in
connection therewith and approving and authorizing the execution,
delivery and payment of the Securities, certified as of the Closing
Date by the Secretary of the Company as being in full force and effect
without modification or amendment;
(iv) Signature and incumbency certificates of the officers of the
Company executing the Registration Rights Agreement, the Indenture and
this Agreement; and
(v) Executed copies of this Agreement, the Securities, the
Registration Rights Agreement (substantially in the form of the draft
attached hereto as EXHIBIT A, with such changes as the parties may
mutually agree) and the Indenture (in the form of the draft attached
hereto as EXHIBIT B, with such changes as the parties may mutually
agree).
(e) The Company shall have performed in all material respects all
agreements which this Agreement provides shall be performed on or before
the Closing Date (except as otherwise consented to in writing by the
Purchaser).
(f) No event shall have occurred and be continuing or would result
from the consummation of the transactions contemplated by this Agreement
which would constitute a Default (as defined in the Indenture) or Event of
Default (as defined in the Indenture).
(g) No order, judgment or decree of any court, arbitrator or
governmental authority shall enjoin or restrain the Purchaser from
purchasing the Securities or consummating the transactions contemplated by
this Agreement and the Registration Rights Agreement, and there shall not
be existing, or to the knowledge of the Company threatened, any action,
suit, proceeding, governmental investigation or arbitration against or
affecting the Company or any of its subsidiaries which would reasonably be
expected to result in such an order, judgement or decree.
(h) No injunction or other restraining order shall have been issued
and no hearing to cause an injunction or other restraining order to be
issued shall be pending or noticed with respect to any action, suit or
proceeding seeking to enjoin or otherwise prevent the
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consummation of, or to recover any damages or obtain relief as a result of,
this Agreement or the purchasing of the Securities.
(i) The Purchaser shall have received payment in full for all expenses
(including reasonable attorneys' fees) incurred in connection with the
negotiation and execution of this Agreement, the Indenture, the
Registration Rights Agreement and the Securities.
(j) ChipPAC or its affiliate shall concurrently receive the proceeds
from the sale of the 12 3/4% Notes pursuant to the 12 3/4% Notes Purchase
Agreement.
(k) The CSFB Credit Agreement shall have been amended prior to the
Closing Date to the extent necessary to permit the sale of the 12 3/4%
Notes pursuant to the 12 3/4% Notes Purchase Agreement to be effected
without resulting in an Event of Default (as such term is defined under the
CSFB Credit Agreement).
(l) On the date of this Agreement, the Special Committee of the Board
of Directors of the Company shall have received and shall furnish to the
Purchaser an opinion of Xxxxxxxx, in form and substance reasonably
satisfactory to the Purchaser, confirming the fairness from a financial
point of view to the disinterested stockholders of the Company of the terms
of the Debt Transactions, and that the terms of the Debt Transactions are
no less favorable to the Company than those that could be obtained in arm's
length dealings with a third party.
The Purchaser may in its discretion waive compliance with any conditions to its
obligations hereunder, whether in respect of the Closing Date or otherwise.
7. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY. The obligations of the
Company to sell the Securities on the Closing Date will be subject to the
accuracy of the representations and warranties on the part of the Purchaser
herein, to the performance by the Purchaser of its obligations hereunder and to
the following additional conditions precedent:
(a) The Company shall have received from Purchaser the Selling Notice
and Questionnaire in connection with the Registration Rights Agreement, on
or prior to Closing Date.
8. TERMINATION. This Agreement may be terminated at any time prior to the
Closing Date:
(a) by the mutual written consent of Company and Purchaser;
14
(b) by the Company or Purchaser, if any injunction or other order of a
court or other competent authority preventing the consummation of the
transactions contemplated hereby shall have become final and
non-appealable; or
(c) by either Purchaser or the Company, if the transactions
contemplated hereby shall not have been consummated before June 28, 2001;
PROVIDED, that the party seeking to terminate this Agreement is not
otherwise in breach in any material respect of any of its obligations
hereunder.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) In addition to the payment of expenses pursuant to Sections 5(c),
and provided that the Purchaser provides notice of a claim against the
Company within the Survival Period as such term is defined in Section 10,
the Company (as "INDEMNITOR") agrees to indemnify, pay and hold the
Purchaser, and the officers, directors, employees, agents and affiliates of
the Purchaser (collectively called the "INDEMNITEES") harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses and disbursements of any
kind or nature whatsoever (including, without limitation, the reasonable
fees and disbursements of one counsel for such Indemnitees in connection
with any investigative, administrative or judicial proceeding commenced or
threatened, whether or not such Indemnitee shall be designated a party
thereto) ("DAMAGES"), which may be imposed on, incurred by, or asserted
against that Indemnitee, in any manner relating to or arising out of a
breach of any of the Company's representations, warranties and covenants
contained herein; PROVIDED, HOWEVER, that the Company shall not be
obligated to indemnify the Indemnitees from and against any Damages (A)
until the Indemnitees have suffered aggregage Damages by reason of all such
breaches in excess of a $1,000,000 deductible (the "DEDUCTIBLE AMOUNT")
(after which point the Company will be obligated to indemnify the
Indemnitees for all Damages, including, without limitation, the Deductible
Amount) or thereafter (B) to the extent the aggregate Damages the
Indemnitees have suffered by reason of all such breaches exceeds
$50,000,000 (after which point the Company will have no obligation to
indemnify the Indemnitees from and against further such Damages).
(b) Except for those claims or causes of action based on fraud that
may be brought under (A) any state or Federal securities laws or (B)
predicated on any state common law, the Purchaser and the Company
acknowledge and agree that the foregoing indemnification provisions in this
Section 9 shall be the exclusive remedy of the Purchaser with respect to
the Company and the transactions contemplated by this Agreement.
15
(c) Notwithstanding anything herein to the contrary, recovery by an
Indemnitee pursuant to this Section 9 shall in no event include any
special, indirect, punitive, incidental or consequential damages.
10. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
agreements, representations and warranties of the Company or its officers and of
the Purchaser set forth in or made pursuant to this Agreement will remain in
full force and effect until the 30th day following the Company's filing of its
Annual Report on Form 10-K for the year ended December 31, 2001 (the "SURVIVAL
PERIOD"), regardless of any investigation, or statement as to the results
thereof, made by or on behalf of the Purchaser, the Company or any of their
respective representatives, officers or directors or any controlling person, and
will survive delivery of and payment for the Securities until the 30th day
following the Company's filing of its Annual Report on Form 10-K for the year
ended December 31, 2001; PROVIDED, HOWEVER, that those agreements contained in
Sections 5(a), 5(b), 9, 11, 12, 13, 15 and 16 shall survive for the periods set
forth therein. If for any reason the purchase of the Securities by the Purchaser
is not consummated, the Company shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 5. If the purchase of the
Securities by the Purchaser is not consummated for any reason, the Company will
reimburse the Purchaser for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities; PROVIDED, HOWEVER, that any commitment fee actually
paid will be credited against such obligation.
11. NOTICES. All communications hereunder will be in writing and, if sent
to the Purchaser will be mailed, delivered or telegraphed and confirmed to the
Purchaser, c/o Citicorp Mezzanine III, L.P., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: General Partner, or, if sent to the Company, will be mailed,
delivered or telegraphed and confirmed to it at ChipPAC, Inc., 00000 Xxxx Xxxx,
Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxxx.
12. SUCCESSORS. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns and the
controlling persons referred to in Section 9, and no other person will have any
right or obligation hereunder, it being understood that CVC, the Purchaser and
the other Shareholders shall be entitled to enforce the agreements for their
benefit contained in Section 5(f) hereof against the Company as if such persons
were parties hereto. Notwithstanding anything herein to the contrary, successors
and assigns as a result of transfers pursuant to a registered offering under the
Securities Act or in Rule 144A transactions shall not have the benefits of this
Agreement.
13. BOARD OBSERVATION RIGHTS.
16
(a) So long as the Purchaser beneficially owns 75% of its Original
Ownership Level, the Purchaser shall have the right to have one individual
(an "OBSERVER") attend any meeting of the Board of Directors of the Company
(the "BOARD") or any committee thereof other than the compensation
committee, such Observer to have all rights and obligations set forth in
this Section 13. For purposes of this Section 13, "ORIGINAL OWNERSHIP
LEVEL" shall mean, with respect to the Purchaser, the number of shares of
Common Stock (on a fully-diluted basis), as adjusted for any stock splits,
stock dividends, recapitalization or other similar events, held by the
Purchaser immediately after the consummation of the transactions
contemplated by this Agreement.
(b) The Observer shall not have the right to vote on any matter
presented to the Board or the board of directors of any subsidiary of the
Company or any committee thereof. The Company shall give each Observer
written notice of each meeting thereof at the same time and in the same
manner as the members of the Board or board of directors of any Subsidiary
of the Company or any committee thereof receive notice of such meetings,
and the Company shall permit each Observer to attend as an observer all
meetings thereof; PROVIDED, HOWEVER, that in the case of telephonic
meetings, such Observer need receive only actual notice thereof at the same
time and in the same manner as notice is given to the directors.
(c) If Observer so elects, Observer may instruct the Company to cease
providing Observer with such written materials and information given to
directors, and Observer will be deemed not to be an "insider" for purposes
of complying with Section 13(e) herein and shall not be subject to the
Insider Policy of the Company so long as such Observer is also not in
receipt of such information by attendance at meetings of the Board and
committees thereof.
(d) The Observer shall be entitled to receive all written materials
and other information given to directors in connection with such meetings
at the same time such materials and information are given to directors, and
each Observer shall keep such materials and information confidential. If
the Company (or any subsidiary of the Company) proposes to take any action
by written consent in lieu of a meeting of its board of directors, the
Company (or such subsidiary of the Company) shall give written notice
thereof to the Observer prior to the effective date of such consent
describing the nature and substance of such action.
(e) The Observer shall be required to comply with the restrictions and
covenants applicable to "insiders" purchasing or selling securities of the
Company based upon the
17
xxxxxxx xxxxxxx policy of the Company as currently in effect and as amended
from time to time by the Company (the "INSIDER POLICY").
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to principles
of conflicts of laws.
16. CONSENT TO JURISDICTION. The Company hereby submits to the
non-exclusive jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.
[SIGNATURE PAGE TO FOLLOW]
If the foregoing is in accordance with the Purchaser's understanding of
our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and the
Purchaser in accordance with its terms.
Very truly yours,
ChipPAC, Inc.,
By: /s/ XXXXXX X. XxXXXXX
----------------------------------
Name: Xxxxxx X. XxXxxxx
Title: Chairman, Chief Executive
Officer and President
The foregoing Purchase Agreement is hereby
confirmed and accepted as of the date first
above written.
CITICORP MEZZANINE III, L.P.
By: Citicorp Capital Investors, Limited,
its general partner
By: /s/ XXXXXXX X. XXXXXXXX, XX.
------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Managing Director
Exhibit A
$50,000,000
CHIPPAC, INC.
8% CONVERTIBLE SUBORDINATED NOTES DUE JUNE __, 2011
REGISTRATION RIGHTS AGREEMENT
June __, 2001
Citicorp Mezzanine III, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
ChipPAC, Inc., a Delaware corporation (the "COMPANY"), proposes to
issue and sell to Citicorp Mezzanine III, L.P. (the "PURCHASER"), upon the terms
set forth in a purchase agreement, dated as of June 11, 2001 (the "PURCHASE
AGREEMENT"), $50,000,000 aggregate principal amount of its 8% Convertible
Subordinated Notes due 2011 (the "NOTES"). The Notes will be issued pursuant to
an Indenture, dated as of June __, 2001 (the "INDENTURE"), between the Company
and Firstar Bank, N.A. as Trustee (the "TRUSTEE"). Under the terms of the
Indenture, the Notes are convertible, in whole or in part, into shares of the
Company's Class A common stock, $.01 par value per share (the "CONVERSION
SHARES"; the Notes and the Conversion Shares are collectively referred to as the
"Securities"), at the option of the holders thereof at any time following the
date of original issuance thereof at the Conversion Price (as defined in the
Notes) set forth in the Notes, as adjusted from time to time pursuant to the
Indenture.
As an inducement to the Purchaser to enter into the Purchase Agreement,
the Company agrees with the Purchaser, for the benefit of the holder(s) of the
Notes, from time to time, (including, without limitation, the Purchaser) and the
holder(s), from time to time, of the Conversion Shares (collectively, the
"HOLDERS"), as follows:
1. RESALE SHELF REGISTRATION.
(a) The Company shall, at its cost, use its commercially
reasonable efforts to file as promptly as practicable (but in no event
more than 150 days after the Closing Date (as defined in the Purchase
Agreement)) with the Securities and Exchange Commission (the
"COMMISSION") and thereafter shall use commercially reasonable efforts
to cause to be declared effective a registration statement (the "SHELF
REGISTRATION STATEMENT") on an appropriate form under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), within 220 days of the
Closing Date, relating to the offer and sale of the Transfer Restricted
Securities (as defined in Section 8(d) hereof) by the Holders thereof
from time to time in accordance with the methods of distribution set
forth in the Shelf Registration Statement and Rule 415 under the
Securities Act (hereinafter, the "SHELF REGISTRATION");
Registration Rights Agreement - Page 2
PROVIDED, HOWEVER, that no Holder (other than the Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf
Registration Statement unless such Holder agrees in writing to be bound
by all the provisions of this Agreement applicable to such Holder.
(b) The Company shall use commercially reasonable efforts to keep
the Shelf Registration Statement continuously effective in order to
permit the prospectus included therein to be lawfully delivered by the
Holders of the relevant Transfer Restricted Securities, for a period of
two (2) years (or for such longer period if extended pursuant to
Section 2(h) below or by the last sentence of this Section 1(b)) from
the date of its effectiveness or such shorter period that will
terminate when all the Transfer Restricted Securities covered by the
Shelf Registration Statement (i) have been sold pursuant thereto or
(ii) are no longer Transfer Restricted Securities as defined in Section
8(d) hereof (in any such case, such period being called the "SHELF
REGISTRATION PERIOD"). The Company shall be deemed not to have used its
commercially reasonable efforts to keep the Shelf Registration
Statement effective during the requisite period if it voluntarily takes
any action that would result in Holders of Securities covered thereby
not being able to offer and sell such Transfer Restricted Securities
during that period, unless (i) such action is required by applicable
law or (ii) upon the occurrence of any event contemplated by Section
2(b)(v) below, such action is taken by the Company in good faith and
for valid business reasons and the Company thereafter complies with the
requirements of Section 2(h) hereof. Notwithstanding anything herein to
the contrary, to the extent the Shelf Registration Statement is
declared effective prior to the 180th day following the Closing Date,
the period of effectiveness of such Shelf Registration Statement
provided for in this Section 1(b) shall be extended by the number of
days in the period from the effectiveness date of such Shelf
Registration Statement to the 180th day following the Closing Date.
(c) Notwithstanding any other provisions of this Agreement to the
contrary, the Company shall cause the Shelf Registration Statement and
the related prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement, amendment or
supplement, (i) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission and (ii) not to contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Each Holder agrees that if such Holder wishes to sell such
Holder's Transfer Restricted Securities pursuant to a Shelf
Registration Statement and related prospectus, it will do so in
accordance with this Section 1(d). Each Holder wishing to sell Transfer
Restricted Securities pursuant to a Shelf Registration Statement and
related prospectus agrees to deliver a Notice and Questionnaire (the
form of which is attached as ANNEX A hereto) to the Company. The
Company will include in the Shelf Registration Statement as a selling
securityholder each Holder that delivers such properly completed Notice
and Questionnaire as of or prior to the Closing Date. The Company will
use its commercially reasonable efforts to include in the Shelf
Registration Statement any Holder which fails to provide such properly
completed Notice and Questionnaire as of or prior to the Closing Date
but otherwise provides such properly completed Notice and
Registration Rights Agreement - Page 3
Questionnaire prior to the commencement of the Shelf Registration
Period. Except as described above and below, the Company shall have no
obligation to include in the Shelf Registration Statement a Holder
which fails to provide the Company with such properly completed Notice
and Questionnaire as of or prior to the Closing Date. From and after
the date the Shelf Registration Statement is declared effective, the
Company shall, as promptly as is practicable after the date a properly
completed Notice and Questionnaire is delivered, and in any event
within thirty (30) days after such date, (i) if required by law, file
with the Commission a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law,
file a supplement to the related prospectus or a supplement or
amendment to any document incorporated therein by reference or file any
other required document so that the Holder delivering such Notice and
Questionnaire is named a selling securityholder in the Shelf
Registration Statement and the related prospectus in such a manner as
to permit such Holder to deliver such prospectus to purchasers of the
Transfer Restricted Securities in accordance with applicable law and,
if the Company shall file a post-effective amendment to the Shelf
Registration Statement, use all commercially reasonable efforts to
cause such post-effective amendment to be declared effective under the
Securities Act as promptly as practical, but in any event by the date
that is thirty (30) business days after the date such post-effective
amendment is required by this clause to be filed; (ii) provide such
Holder copies of any documents filed pursuant to Section 1(d)(i); and
(iii) notify such Holder as promptly as practicable after the
effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 1(d)(i); PROVIDED, THAT if such Notice and
Questionnaire is delivered during a period in which the use of such
prospectus is suspended pursuant to Section 2(h) hereof, the Company
shall so inform the Holder delivering such Notice and Questionnaire and
shall take the actions set forth in clauses (i), (ii) and (iii) above
upon expiration of such suspension period. Notwithstanding anything
contained herein to the contrary, the Company shall be under no
obligation to name any Holder that has not supplied the requisite
information as required by and in accordance with the procedures and
time periods set forth in this Section 1(d) as a selling securityholder
in any Shelf Registration Statement and related prospectus and any
amendment or supplement thereto.
2. SHELF REGISTRATION PROCEDURES. In connection with any Shelf
Registration contemplated by Section 1 hereof, the following provisions shall
apply:
(a) The Company shall (i) furnish to the Purchaser, prior to the
filing thereof with the Commission, a copy of the Shelf Registration
Statement and each amendment thereof and each supplement, if any, to
the prospectus included therein and, the Company shall use its best
efforts to reflect in each such document, when so filed with the
Commission, such comments as the Purchaser reasonably may propose and
(ii) include the names of the Holders, who propose to sell Transfer
Restricted Securities pursuant to the Shelf Registration Statement, as
selling securityholders; PROVIDED, THAT the Purchaser and Holders have
complied with Section 1(d).
(b) The Company shall give written notice to the Purchaser and
the Holders of the Transfer Restricted Securities included within the
coverage of the Shelf Registration Statement (which notice pursuant to
clauses (ii)-(v) hereof shall be accompanied by an
Registration Rights Agreement - Page 4
instruction to suspend the use of the prospectus until the requisite
changes have been made):
(i) when the Shelf Registration Statement or any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose;
(iv) of the receipt by the Company or its legal counsel of
any notification with respect to the suspension of the
qualification of the Transfer Restricted Securities for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(v) of the happening of any event that requires the Company
to make changes in the Shelf Registration Statement or the
prospectus in order that the Shelf Registration Statement or the
prospectus do not contain an untrue statement of a material fact
nor omit to state a material fact required to be stated therein
or necessary to make the statements therein (in the case of the
prospectus, in light of the circumstances under which they were
made) not misleading, which written notice need not provide any
detail as to the nature of such event.
(c) The Company shall make every commercially reasonable effort
to obtain the withdrawal at the earliest possible time, of any order
suspending the effectiveness of the Shelf Registration Statement.
(d) The Company shall furnish to each Holder of Securities
included within the coverage of the Shelf Registration, without charge,
at least one copy of the Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if the Holder so requests in writing, all exhibits
thereto (including those, if any, incorporated by reference).
(e) The Company shall, during the Shelf Registration Period,
deliver to each Holder of Transfer Restricted Securities included
within the coverage of such Shelf Registration, without charge, as many
copies of the prospectus (including each preliminary prospectus)
included in the Shelf Registration Statement and any amendment or
supplement thereto as such person may reasonably request. The Company
consents, subject to the provisions of this Agreement, to the use of
the prospectus or any amendment or supplement thereto by each of the
selling Holders of the Transfer Restricted Securities in connection
with the offering and sale of the Transfer Restricted Securities
covered by the prospectus, or any amendment or supplement thereto,
included in the Shelf Registration Statement.
Registration Rights Agreement - Page 5
(f) Prior to any public offering of the Securities pursuant to
the Shelf Registration Statement, the Company shall register or qualify
or cooperate with the Holders of the Securities included therein and
their respective counsel in connection with the registration or
qualification of the Transfer Restricted Securities for offer and sale
under the securities or "blue sky" laws of such states of the United
States as any Holder of the Securities reasonably requests in writing
and do any and all other acts or things necessary or advisable to
enable the offer and sale in such jurisdictions of the Securities
covered by such Shelf Registration Statement; PROVIDED, HOWEVER, that
the Company shall not be required to (i) qualify generally to do
business in any jurisdiction where it is not then so qualified or (ii)
take any action which would subject it to general service of process or
to taxation in any jurisdiction where it is not then so subject.
(g) The Company shall cooperate with the Holders of the
Securities to facilitate the timely preparation and delivery of
certificates representing the Securities to be sold pursuant to the
Shelf Registration Statement free of any restrictive legends and in
such denominations and registered in such names as the Holders may
request a reasonable period of time prior to sales of the Securities
pursuant to such Shelf Registration Statement.
(h) Upon the occurrence of any event contemplated by paragraphs
(ii) through (v) of Section 2(b) above during the period for which the
Company is required to maintain an effective Shelf Registration
Statement, the Company shall as required hereby prepare and file a
post-effective amendment to such Shelf Registration Statement or a
supplement to the related prospectus and any other required document so
that, as thereafter delivered to Holders of the Securities or
purchasers of Securities included within the coverage of such Shelf
Registration Statement, the prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Company may delay filing and
distributing any such supplement or amendment (and continue the
suspension of the use of the related prospectus) if the Company
determines in good faith that such supplement or amendment would, in
the reasonable judgement of the Company, (i) interfere with or affect
the negotiation or completion of a transaction that is being
contemplated by the Company or (ii) involve initial or continuing
disclosure obligations that are not in the best interests of the
Company's stockholders at such time; provided, further, that neither
such delay nor such suspension shall extend for a period of more than
90 consecutive days or an aggregate of 180 days in any twelve-month
period. If the Company notifies the Purchaser and the Holders of the
Securities in accordance with paragraphs (ii) through (v) of Section
2(b) above to suspend the use of such prospectus until the requisite
changes to such prospectus have been made, then the Purchaser and the
Holders of the Securities shall suspend use of such prospectus, and the
period of effectiveness of such Shelf Registration Statement provided
for in Section 1(b) above shall be extended by the number of days from
and including the date of the giving of such notice to and including
the date when the Purchaser and the Holders of the Securities shall
have received such amended or supplemented prospectus pursuant to this
Section 2(h).
Registration Rights Agreement - Page 6
(i) Not later than the effective date of the Shelf Registration
Statement, the Company will provide CUSIP numbers for the Notes and the
Conversion Shares registered under the Shelf Registration Statement and
provide the Trustee with a certificate for the Notes, in a form
eligible for deposit with The Depository Trust Company.
(j) The Company will comply with all rules and regulations of the
Commission to the extent and so long as they are applicable to the
Shelf Registration to enable the Holders to resell their securities in
accordance with this Agreement.
(k) The Company shall cause the Indenture to be qualified under
the Trust Indenture Act of 1939, as amended (the "TRUST INDENTURE
ACT"), in a timely manner and containing such changes, if any, as shall
be necessary for such qualification. In the event that such
qualification would require the appointment of a new trustee under the
Indenture, the Company shall appoint a new trustee thereunder pursuant
to the applicable provisions of the Indenture.
(l) Each Holder agrees, by acquisition of the Securities, that no
Holder of Securities shall be entitled to sell any of such Securities
pursuant to any Shelf Registration Statement or to receive a prospectus
relating thereto, unless such Holder has furnished the Company with a
Notice and Questionnaire as required pursuant to and in accordance with
Section 1(d) hereof and the information set forth in the next sentence.
Each Holder agrees promptly to furnish the Company all information
required to be disclosed in order to make the information previously
furnished to the Company by such Holder not misleading and any other
information regarding such Holder and the distribution of such
Securities as the Company may from time to time reasonably request.
(m) In the event of any underwritten public offering, the Company
shall enter into such customary agreements (including, if requested, an
underwriting agreement in customary form) and take all such other
action, if any, as any managing underwriter of such offering and Holder
of the Securities shall reasonably request in order to facilitate the
disposition of the Securities pursuant to any Shelf Registration;
PROVIDED, HOWEVER, that the Company shall not be required to facilitate
an underwritten offering pursuant to a Shelf Registration Statement by
any Holders unless the offering relates to at least $20,000,000
principal amount of the Notes or an equivalent number of Conversion
Shares (as adjusted for any stock dividends, stock splits and capital
changes).
(n) The Company shall (i) make reasonably available for
inspection by any underwriter participating in any disposition pursuant
to the Shelf Registration Statement and any agent retained by any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and (ii) cause the
Company's officers, directors, employees, accountants and auditors to
supply all relevant information reasonably requested by any such
underwriter or agent in connection with the Shelf Registration
Statement, in each case, as shall be reasonably necessary to enable
such persons, to conduct a reasonable investigation within the meaning
of Section 11 of the Securities Act; PROVIDED, HOWEVER, that the
foregoing inspection and information
Registration Rights Agreement - Page 7
gathering shall be coordinated on behalf of the Purchaser by you and
the other parties, by one firm of counsel, which firm shall be
designated as described in Section 6 hereof.
(o) In the event of an underwritten offering, the Company shall
cause (i) its counsel to deliver an opinion and updates thereof
relating to the Securities in customary form and substance addressed to
the managing underwriters thereof and dated, in the case of the initial
opinion, the effective date of such Shelf Registration Statement; (ii)
its executive officers and directors to execute and deliver all
customary documents and certificates and updates thereof requested by
any underwriters of the applicable Securities and (iii) the independent
public accountants for which financial information is provided in the
Shelf Registration Statement to provide to the selling Holders of the
applicable Transfer Restricted Securities and any underwriter therefor
a comfort letter in customary form, type and substance customarily
covered in comfort letters in connection with primary underwritten
offerings.
(p) The Company shall use its commercially reasonable efforts to
take all other steps necessary to effect the registration of the
Securities covered by a Shelf Registration Statement contemplated
hereby.
3. DEMAND REGISTRATION.
(a) From and after the second anniversary of the Closing Date,
Holders of at least 50% of the outstanding Transfer Restricted
Securities, subject to Section 3(e) below, (the "INITIATING HOLDERS")
may request, in writing, registration under the Securities Act of all
or part of their Transfer Restricted Securities. Within 10 days after
receipt of any such request, the Company will give notice of such
request to all other Holders of Transfer Restricted Securities ("OTHER
HOLDERS"). Thereafter, the Company will use all commercially reasonable
efforts to effect the registration on an appropriate form under the
Securities Act and will include in such registration, subject to
Section 3(e) below, all Transfer Restricted Securities held by the
Initiating Holders and Other Holders with respect to which the Company
has received written requests for inclusion therein within 15 days
after the receipt of the Company's notice. All registrations initiated
by an Initiating Holder pursuant to this Section 3(a) are referred to
herein as "DEMAND REGISTRATIONS." Notwithstanding anything herein to
the contrary, the Company need not effect any requested Demand
Registration unless the expected gross proceeds of such registration
exceed $15,000,000.
(b) Notwithstanding anything in Section 3(a) above to the
contrary, the Company shall not be obligated to take any action to
effect any such registration pursuant to Section 3(a) above:
(i) In any particular jurisdiction in which the Company
would be required to execute a general consent to service of
process in effecting such registration, unless the Company is
already subject to service in such jurisdiction and except as may
be required by the Securities Act;
Registration Rights Agreement - Page 8
(ii) During the period starting with the date sixty (60)
days prior to the Company's estimated date of filing of, and
ending on one hundred twenty (120) days immediately following the
effective date of, any registration statement pertaining to
securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an
employee benefit plan), provided that the Company is actively
employing in good faith all reasonable effects to cause such
registration statement to become effective;
(iii) After the Company has effected two (2) such
registrations pursuant to Section 3(a), and such registrations
have been declared or ordered effective;
(iv) If the Company shall furnish to such Holders a
certificate signed by the Chief Executive Officer of the Company
stating that in the good faith judgment of the Board of Directors
it would be seriously detrimental to the Company or its
stockholders for a registration statement to be filed in the near
future, then the Company's obligation to use its commercially
reasonable efforts to comply under Section 3(a) shall be deferred
for a period not to exceed one hundred eighty (180) days from the
date of receipt of written request from an Initiating Holder;
provided that the Company may not exercise this deferral right
more than once per twelve (12) month period.
(c) A registration requested pursuant to Section 3(a) shall not
be deemed to have been effected (i) unless a registration statement
with respect thereto has been declared effective by the Commission,
(ii) if after it has become effective, such registration is interfered
with by any stop order, injunction or the order or requirement of the
Commission or other governmental agency or court for any reason, and,
as a result thereof, the Transfer Restricted Securities covered thereby
have not been sold or (iii) the registration statement does not remain
effective for a period expiring the earlier of 90 days after the
effective date thereof or the completion of the distribution of the
Transfer Restricted Securities included in such registration statement.
The Holders of the Transfer Restricted Securities shall be permitted to
withdraw all or any part of the Transfer Restricted Securities from a
Demand Registration at any time prior to the effective date of such
Demand Registration; provided that in the event of, and concurrently
with such withdrawal, the Holders responsible for such Demand
Registration shall either (i) pay or reimburse the Company for all fees
and expenses (including counsel fees and expense) incurred by them and
the Company prior to such withdrawal or (ii) agree to forfeit one of
its Demand Registration rights hereunder.
(d) In the event that a registration pursuant to Section 3(a) is
for a registered public offering involving an underwriting, the Company
shall so advise the Holders as part of the notice given pursuant to
Section 3(a). In such event, the right of any Holder to registration
pursuant to Section 3(a) shall be conditioned upon such Holder's
participation in the underwriting arrangements required by this Section
3, and the inclusion of such Holder's Transfer Restricted Securities in
the underwriting to the extent requested shall be limited to the extent
provided herein. The Company shall (together with all Holders proposing
to distribute their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter
Registration Rights Agreement - Page 9
selected for such underwriting by the Initiating Holder, but subject
to the Company's reasonable approval.
(e) If the Company includes in any underwritten Demand
Registration any securities which are not Transfer Restricted
Securities and the managing underwriters advise the Company in writing
that in their opinion the number of Transfer Restricted Securities
proposed to be included exceeds the number of Transfer Restricted
Securities and other securities which can be sold in such offering, the
Company will include in such registration (i) first, the Transfer
Restricted Securities requested to be included which, in the opinion of
such underwriters, can be sold, by the Initiating Holders initiating
the Demand Registration, (ii) second, the Transfer Restricted
Securities proposed to be included in such registration by the Other
Holders exercising their registration rights hereunder, pro rata based
upon the total number of Transfer Restricted Securities which such
Other Holders propose to include in such registration and (iii) third,
the securities proposed to be included in such registration by any
other holders as determined by the Company and the managing
underwriters.
4. PIGGYBACK REGISTRATION.
(a) From and after the second anniversary of the Closing Date,
whenever the Company proposes to register any securities substantially
similar to the Transfer Restricted Securities under the Securities Act
(other than on S-8 or any successor forms), and the form of
registration statement to be used may be used for the registration of
Transfer Restricted Securities (a "PIGGYBACK REGISTRATION"), the
Company will give notice to all Holders of Transfer Restricted
Securities of the intention to effect such a registration and will
include in such registration, subject to Sections 4(c) and 4(d) below,
all Transfer Restricted Securities with respect to which the Company
has received written requests for inclusion therein. Such requests for
inclusion shall be in writing and delivered to the Company within 15
days after the Holders' receipt of such notice and shall specify the
number of Transfer Restricted Securities intended to be disposed of and
the intended method of distribution thereof. Any Holder of Transfer
Restricted Securities shall have the right to withdraw its request for
inclusion of its Transfer Restricted Securities in any registration
statement pursuant to this Section 4(a) by giving written notice to the
Company of its request to withdraw. The Company may withdraw a
Piggyback Registration at any time prior to the time it becomes
effective.
(b) If the registration of which the Company gives notice is for
a registered public offering involving an underwriting, the Company
shall so advise the Holders as a part of the written notice given
pursuant to Section 4(a). In such event the right of any Holder to
registration pursuant to Section 4(a) shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of
Transfer Restricted Securities in the underwriting to the extent
provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company and the
other holders distributing their securities through such underwriting)
enter into an underwriting agreement in customary form with the
managing underwriter selected for such underwriting by the Company.
Registration Rights Agreement - Page 10
(c) If a Piggyback Registration is an underwritten primary
registration on behalf of the Company, and the managing underwriters
advise the Company that in their opinion the number of securities
requested to be included in such registration exceeds the number which
can be sold in such offering, the Company will include in such
registration (i) first, the securities the Company proposes to sell,
(ii) second, the securities proposed to be included in such
registration by the holders (including Holders of Transfer Restricted
Securities) of the same securities proposed to be sold by the Company
and (iii) third, the securities proposed to be included in such
registration by the holders (including Holders of Transfer Restricted
Securities) of substantially the same securities proposed to be sold by
the Company, in each of clauses (ii) and (iii) pro rata among such
holders exercising their respective piggyback registration rights
thereof based upon the total number of securities which such holders
beneficially own.
(d) If a Piggyback Registration is an underwritten secondary
registration on behalf of holders (other than the Holders of the
Transfer Restricted Securities) of the Company's securities, and the
managing underwriters advise the Company that in their opinion the
number of securities requested to be included in such registration
exceeds the number which can be sold in such offering, the Company will
include in such registration (i) FIRST, the securities which such
initiating holders propose to sell; (ii) SECOND, the securities the
Company proposed to be included in such registration; (iii) THIRD, the
securities proposed to be included in such registration by the holders
(including Holders of Transfer Restricted Securities) of the same
securities proposed to be sold by such initiating holders and (iv)
FOURTH, the securities proposed to be included in such registration by
the holders (including Holders of Transfer Restricted Securities) of
substantially the same securities proposed to be sold by such
initiating holders, in each of clauses (iii) and (iv) pro rata among
any such holders exercising their respective piggyback registration
rights thereof based upon the total number of securities which such
holders beneficially own.
5. DEMAND AND PIGGYBACK REGISTRATION PROCEDURES. In the case of
each registration effected by the Company pursuant to Sections 3 and 4, the
Company will keep each Holder advised in writing as to the initiation of each
registration and as to the completion thereof. At its expense the Company will:
(a) With respect to Demand Registrations, the Company shall use
its commercially reasonable efforts to file as promptly as practicable
(but in no event more than 120 days after the date the Company is in
receipt of written requests by the Other Holders for inclusion in such
Demand Registration (the "DEMAND INITIATION DATE")) and thereafter
shall use commercially reasonable efforts to cause to be declared
effective a registration statement on an appropriate form under the
Securities Act, within 180 days after the Demand Initiation Date,
relating to the offer and sale of the Transfer Restricted Securities;
(b) Furnish to the Holders participating in such registration and
to the underwriters of the securities being registered such reasonable
number of copies of the Registration Statement, preliminary prospectus,
final prospectus and such other
Registration Rights Agreement - Page 11
documents as such underwriters may reasonably request in order to
facilitate the public offering of such securities;
(c) Prepare and file with the Commission such amendments and
supplements to such Registration Statement and the prospectus used in
connection with such registration statements as may be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all Transfer Restricted Securities covered by such
registration statement;
(d) Use its commercially reasonable efforts to register and
qualify the securities covered by such registration statement under
such other securities or "blue sky" laws of such jurisdictions as shall
be reasonably requested by the Holders, provided that the Company shall
not be required in connection therewith or as a condition thereto to
qualify to do business or to file a general consent to service of
process in any such states or jurisdictions; and
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual
and customary form, with the managing underwriter of such offering.
Each Holder participating in such underwriting shall also enter into
and perform its obligations under such an agreement.
6. REGISTRATION EXPENSES. Except as set forth in clause (i) of
Section 3(c), the Company shall bear all fees and expenses incurred by it in
connection with the performance of its obligations under Sections 1, 3 and 4
hereof whether or not a Registration Statement is filed or becomes effective. In
connection with any Registration Statement, the participating Holders shall be
responsible for the payment of any and all underwriters' and brokers' and
dealers' discounts, selling commissions, any applicable stock transfer taxes
and, except as set forth in clause (i) of Section 3(c) and as set forth below,
all fees and disbursements of counsel, accountants or other advisors for any
Holder and any other fees and expenses not covered by the preceding sentence. In
connection with the Shelf Registration Statement and the applicable Registration
Statement for one (1) Demand Registration, the Company shall bear or reimburse
the Holders of the Securities covered thereby for reasonable fees and
disbursements of not more than one (1) counsel chosen by the Holders of a
majority in principal amount of the Securities covered thereby to act as counsel
for the Holders in connection therewith. For purposes of this Agreement,
"REGISTRATION STATEMENT" shall mean the Shelf Registration Statement and any
applicable registration statement in connection with Demand and Piggyback
Registrations.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Holder
of the Securities, each agent representative, employee, officer and
director of any such Holder, and each person, if any, who controls such
Holder within the meaning of the Securities Act or the Exchange Act
(each Holder and such persons are referred to collectively as the
"INDEMNIFIED PARTIES") from and against any losses, claims, damages or
liabilities, joint or several, or any actions in respect thereof
(including, but not limited to, any losses, claims, damages,
liabilities or actions relating to purchases and sales of the
Securities) to which each Indemnified Party may become subject under
the Securities Act, the Exchange Act
Registration Rights Agreement - Page 12
or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in a Registration
Statement or prospectus or in any amendment or supplement thereto or in
any preliminary prospectus relating to a Registration Statement, or
arise out of, or are based upon, the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and shall
reimburse, as incurred, the Indemnified Parties for any legal or other
expenses reasonably incurred by them in connection with investigating
or defending any such loss, claim, damage, liability or action in
respect thereof; PROVIDED, HOWEVER, that (i) the Company shall not be
liable in any such case to the extent that such loss, claim, damage or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in a
Registration Statement or prospectus or in any amendment or supplement
thereto or in any preliminary prospectus relating to a Registration
Statement in reliance upon and in conformity with written information
pertaining to such Holder and furnished to the Company by or on behalf
of such Holder specifically for inclusion therein and (ii) with respect
to any untrue statement or omission or alleged untrue statement or
omission made in any preliminary prospectus relating to a Registration
Statement, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any Holder from whom the person
asserting any such losses, claims, damages or liabilities purchased the
Securities concerned, to the extent that a prospectus relating to such
Securities was required to be delivered by such Holder under the
Securities Act in connection with such purchase and any such loss,
claim, damage or liability of such Holder results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Securities to such person, a copy of
the final prospectus if the Company had previously furnished copies
thereof to such Holder; PROVIDED FURTHER, HOWEVER, that this indemnity
agreement will be in addition to any liability which the Company may
otherwise have to such Indemnified Party. The Company shall also
indemnify underwriters, their officers and directors and each person
who controls such underwriters within the meaning of the Securities Act
or the Exchange Act to the same extent as provided above with respect
to the indemnification of the Holders of the Securities if requested by
such Holders.
(b) Each Holder, severally and not jointly, will indemnify and
hold harmless the Company, its officers, directors and each person, if
any, who controls the Company within the meaning of the Securities Act
or the Exchange Act from and against any losses, claims, damages or
liabilities or any actions in respect thereof, to which the Company or
any such controlling person may become subject under the Securities
Act, the Exchange Act or otherwise, insofar as such losses, claims,
damages, liabilities or actions arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or prospectus or in any amendment
or supplement thereto or in any preliminary prospectus relating to a
Registration Statement, or arise out of or are based upon the omission
or alleged omission to state therein a material fact necessary to make
the statements therein not misleading, but in each case only to the
extent that the untrue statement or omission or alleged untrue
statement or omission was made in reliance upon and in conformity with
written information pertaining to such Holder and furnished to the
Company by or on behalf of such Holder specifically for inclusion
therein; and, subject to the limitation set forth
Registration Rights Agreement - Page 13
immediately preceding this clause, shall reimburse, as incurred, the
Company for any legal or other expenses reasonably incurred by the
Company or any such controlling person in connection with investigating
or defending any loss, claim, damage, liability or action in respect
thereof. This indemnity agreement will be in addition to any liability
which such Holder may otherwise have to the Company or any of its
controlling persons.
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action or proceeding
(including a governmental investigation), such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Section 7, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying
party will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to
assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof the indemnifying party will
not be liable to such indemnified party under this Section 7 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the
defense thereof. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on
any claims that are the subject matter of such action, and does not
include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party. No indemnified
party shall effect any settlement of any pending or threatened action
without the prior written consent of the indemnifying party, which such
consent shall not be unreasonably withheld or delayed.
(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsections (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities (or actions in
respect thereof) referred to in subsection (a) or (b) above (i) in such
proportion as is appropriate to reflect the relative benefits received
by the indemnifying party or parties on the one hand and the
indemnified party on the other from the sale of the Securities,
pursuant to the Registration Statement, or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative
fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities
(or actions in respect thereof) as well as any other relevant equitable
considerations. The relative fault of the parties shall be determined
by
Registration Rights Agreement - Page 14
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company on
the one hand or such Holder or such other indemnified party, as the
case may be, on the other, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any action or claim which
is the subject of this subsection (d). Notwithstanding any other
provision of this Section 7(d), the Holders shall not be required to
contribute any amount in excess of the amount by which the net proceeds
received by such Holders from the sale of the Securities pursuant to a
Registration Statement exceeds the amount of damages which such Holders
have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (d), each person, if any, who controls such
indemnified party within the meaning of the Securities Act or the
Exchange Act shall have the same rights to contribution as such
indemnified party and each person, if any, who controls the Company
within the meaning of the Securities Act or the Exchange Act shall have
the same rights to contribution as the Company.
(e) The agreements contained in this Section 7 shall survive the
sale of the Securities pursuant to a Registration Statement and shall
remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on
behalf of any indemnified party.
8. ADDITIONAL INTEREST UNDER CERTAIN CIRCUMSTANCES.
(a) Additional interest (the "ADDITIONAL INTEREST") with respect
to the Securities (except with respect to (iii) below, which such
Additional Interest shall only apply to the Securities held by the
affected Holder(s)) shall be assessed as follows if any of the
following events occur (each such event in clauses (i) through (v)
below being herein called a "REGISTRATION DEFAULT"):
(i) If on or prior to the 150th day after the Closing Date
(as defined in the Purchase Agreement), the Shelf Registration
Statement has not been filed with the Commission;
(ii) If on or prior to the 220th day after the Closing Date
(as defined in the Purchase Agreement), the Shelf Registration
Statement has not been declared effective by the Commission;
(iii) The Company fails with respect to a Holder of Notes
that supplies the Notice and Questionnaire described in Section
1(d) above to amend or
Registration Rights Agreement - Page 15
supplement the Shelf Registration Statement in the manner
set forth in Section 1(d) above;
(iv) If after the Shelf Registration Statement is declared
effective, such Shelf Registration Statement or the related
prospectus ceases to be usable in connection with resales of
Transfer Restricted Securities during the periods specified
herein because the Company suspends the effectiveness of such
Shelf Registration Statement beyond the periods set forth in
Section 2(h) above;
(v) If after the Shelf Registration Statement is declared
effective, such Registration Statement or the related prospectus
ceases to be usable in connection with resales of Transfer
Restricted Securities during the periods specified herein and the
Company fails to cure the Shelf Registration Statement within
fifteen (15) business days by filing a post-effective amendment
or report pursuant to the Exchange Act;
(vi) If on or prior to the 120th day after the Demand
Initiation Date, a registration statement relating to the
applicable Demand Registration has not been filed with the
Commission; or
(vii) If on or prior to the 180th day after the Demand
Initiation Date, a registration statement relating to the
applicable Demand Registration has not been declared effective by
the Commission.
Each of the foregoing will constitute a Registration Default whatever the reason
for any such event and whether it is voluntary or involuntary or is beyond the
control of the Company or pursuant to operation of law or as a result of any
action or inaction by the Commission.
Additional Interest shall accrue on the Notes and Conversion
Shares that are Transfer Restricted Shares over and above the interest set forth
in the title of the Securities from and including the date on which any such
Registration Default shall occur to but excluding the date on which all such
Registration Defaults have been cured, at a rate of 0.50% per annum (the
"ADDITIONAL INTEREST RATE").
(b) A Registration Default referred to in Section 8(a)(v) hereof
shall be deemed not to have occurred and be continuing in relation to a
Shelf Registration Statement or the related prospectus if (i) such
Registration Default has occurred solely as a result of (x) the filing
of a post-effective amendment to such Shelf Registration Statement to
incorporate annual audited financial information with respect to the
Company where such post-effective amendment is not yet effective and
needs to be declared effective to permit Holders to use the related
prospectus or (y) other material events with respect to the Company
that would need to be described in such Shelf Registration Statement or
the related prospectus and (ii) in the case of clause (y), the Company
is proceeding promptly and in good faith to amend or supplement such
Shelf Registration Statement and related prospectus to describe such
events; PROVIDED, HOWEVER, that in any case if such Registration
Default occurs for a continuous period in excess of 30 days, Additional
Interest shall be payable in accordance with the above
Registration Rights Agreement - Page 16
paragraph from the day such Registration Default occurs until such
Registration Default is cured.
(c) Any amounts of Additional Interest due pursuant to Section
8(a) above will be payable in cash to the "RECORD HOLDER" (as defined
in Section 8(d) below) on the "DAMAGES PAYMENT DATES" (as defined in
Section 8(d) below) with respect to the Notes and the Conversion
Shares. The amount of Additional Interest will be determined by (1)
multiplying the applicable Additional Interest Rate by (x) in the case
of the Notes, the "APPLICABLE PRINCIPAL AMOUNT" (as defined in Section
8(d) below) or (y) in the case of the Conversion Shares, the
"APPLICABLE CONVERSION PRICE" (as defined in Section 8(d) below) and
then (2) multiplying the product of the calculation set forth in (c)(1)
above by a fraction, the numerator of which is the number of days such
Additional Interest Rate was applied during such period (determined on
the basis of a 360 day year comprised of twelve 30-day months), and the
denominator of which is 360.
(d) The following terms shall have the following meaning(s):
The term "APPLICABLE CONVERSION PRICE" means the Applicable
Principal Amount divided by the Conversion Price set forth in the Notes, as
adjusted from time to time pursuant to the Indenture, in effect as of the next
succeeding June 15 or December 15 following such Registration Default in the
case of the first such payment of Additional Interest with respect to a
Registration Default (and thereafter at the next succeeding June 15 or December
15 until the cure of such Registration Default) or, if no Notes are then
outstanding, the last Conversion Price that was in effect when the Notes were
last outstanding.
The term "APPLICABLE PRINCIPAL AMOUNT" with respect to each
$1,000 principal amount of maturity of Notes means the initial issue price of
such Note ($1,000) through the next succeeding June 15 or December 15 following
such Registration Default in the case of such payment of Additional Interest
with respect to a Registration Default (and thereafter at the next succeeding
June 15 or December 15 until the cure of such Registration Default) or, if no
Notes are then outstanding, such sum calculated as if such Notes were then
outstanding.
The term "DAMAGES PAYMENT DATE" means each June 15 or December
15 in the case of the Notes and the Conversion
SHARES.
The term "RECORD HOLDER" means with respect to any Damages
Payment Date relating to any Note or Conversion Shares as to which any
Additional Interest has accrued, the registered holder of such Note or
Conversion Shares, as the case may be, fifteen (15) days prior to the next
succeeding Damages Payment Date.
The term "TRANSFER RESTRICTED SECURITIES" means each Security
until the earliest of (i) the date on which such Security has been effectively
registered under the Securities Act and disposed of in accordance with the Shelf
Registration Statement, (ii) to the extent such Security is held by a
non-affiliate of the Company, the date on which such Security may be sold by the
Holder thereof to the public pursuant to Rule 144 under the Securities Act,
(iii) to the extent such Security is held by an affiliate of the Company, the
date on which such Security is sold by the Holder thereof to the public pursuant
to Rule 144 under the Securities Act or (iv) the date on
Registration Rights Agreement - Page 17
which such Security is saleable by the Holder thereof pursuant to Rule 144(k)
under the Securities Act. Notwithstanding anything herein to the contrary, the
registration rights granted hereunder shall terminate as to each Holder and with
respect to such Securities upon the date that such Securities are no longer
Transfer Restricted Securities.
9. SEC FILINGS. The Company shall use its best efforts to file the
reports required to be filed by it under the Securities Act and the Exchange Act
in a timely manner and, if at any time the Company is not required to file such
reports, it will, upon the request of any Holder of Securities, make publicly
available other information so long as necessary to permit sales of their
securities pursuant to Rule 144. The Company covenants that it will take such
further action as any Holder of Securities may reasonably request, all to the
extent required from time to time to enable such Holder to sell Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144. The Company will provide an executed
counterpart of this Agreement to prospective purchasers of the Notes identified
to the Company by the Purchaser upon request. Upon the request of any Holder of
Notes, the Company shall deliver to such Holder a written statement as to
whether it has complied with such requirements. Notwithstanding the foregoing,
nothing in this Section 9 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
10. UNDERWRITTEN REGISTRATIONS. If any of the Transfer Restricted
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering ("MANAGING UNDERWRITERS") will be selected by
the Holders of a majority in aggregate principal amount of such Transfer
Restricted Securities to be included in such offering and such selection shall
be subject to the Company's consent, which shall not be unreasonably withheld or
delayed.
No person may participate in any underwritten registration
hereunder unless such person (i) agrees to sell such person's Transfer
Restricted Securities on the basis reasonably provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
11. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. The Company will not on or after
the date of this Agreement enter into any agreement with respect to its
securities that is inconsistent or conflicts with the legal rights
granted to the Holders in this Agreement. The rights granted to the
Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
Notwithstanding anything herein to the contrary, the Company shall not
be limited or in any way prevented from entering into any agreement
granting any holder or prospective holder of any securities of the
Company registration rights with respect to such securities that do not
conflict with the registration rights of the Holders hereunder.
Registration Rights Agreement - Page 18
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified
or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the
written consent of the Holders of a majority of the then outstanding
Conversion Shares constituting Transfer Restricted Securities (with
Holders of Notes deemed to be the Holders, for purposes of this Section
11(b), of the number of outstanding shares of Conversion Shares into
which such Notes are or would be convertible or exchangeable as of the
date on which such consent is requested). Notwithstanding the
foregoing, a waiver or consent to depart from the provisions hereof
with respect to a matter that relates exclusively to the rights of
Holders of Transfer Restricted Securities whose securities are being
sold pursuant to a Shelf Registration Statement and that does not
directly or indirectly affect the rights of other Holders of Transfer
Restricted Securities may be given by Holders of at least a majority of
the Transfer Restricted Securities being sold by such Holders pursuant
to such Shelf Registration Statement; PROVIDED, HOWEVER, that the
provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the
immediately preceding sentence; PROVIDED, FURTHER, without the consent
of each Holder, no amendment, modification or supplement may alter the
provisions relating to the payment of Additional Interest. Each Holder
of Transfer Restricted Securities outstanding at the time of any such
amendment, modification, supplement, waiver or consent or thereafter
shall be bound by any such amendment, modification, supplement, waiver
or consent effected pursuant to this Section 11, whether or not any
notice, writing or marking indicating such amendment, modification,
supplement, waiver or consent appears on the Transfer Restricted
Securities or is delivered to such Holder. Each Holder may waive
compliance with respect to any obligation of the Company under this
Agreement as it may apply or be enforced by such particular Holder.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery,
first-class mail, facsimile transmission, or air courier which
guarantees overnight delivery:
(1) if to a Holder of the Securities, at the most current
address given by such Holder to the Company.
(2) if to the Purchaser:
Citicorp Mezzanine III, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: General Partner
Registration Rights Agreement - Page 19
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Zechariah Xxxxxxx Xxxxxxx XX, Esq.
(3) if to the Company, at its address as follows:
ChipPAC, Inc.
00000 Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxxxxx Xxxxxxxx
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No. (000) 000-0000
Attention: Xxx Xxxxx, Esq.
(for all notices other than Selling Security
Holder Notice and Questionnaire)
Xxxxxxx Xxx, Esq.
Xxxx Xxxx, Esq.
(for all Selling Securityholder Notice
and Questionnaire)
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; three
business days after being deposited in the mail, postage prepaid, if mailed;
when receipt is acknowledged by recipient's facsimile machine operator, if sent
by facsimile transmission; and on the day delivered, if sent by overnight air
courier guaranteeing next day delivery.
(d) THIRD PARTY BENEFICIARIES. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on
the one hand, and the Purchaser, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem
such enforcement necessary or advisable to protect their rights or the
rights of Holders hereunder.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; PROVIDED,
Registration Rights Agreement - Page 20
HOWEVER, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent
such successor or assign acquired Transfer Restricted Securities from
such Holder; and PROVIDED, FURTHER that nothing herein shall be deemed
to permit any assignment, transfer or any disposition of Transfer
Restricted Securities in violation of the terms of the Purchase
Agreement. If any transferee of any Holder shall acquire Transfer
Restricted Securities, in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to
all of the terms of this Agreement and by taking and holding such
Transfer Restricted Securities such person shall be conclusively deemed
to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(f) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning
hereof.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
(i) SEVERABILITY. If any one or more of the provisions contained
herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(j) SECURITIES HELD BY THE COMPANY. Whenever the consent or approval of
Holders of a specified percentage of principal amount of Securities is
required hereunder, Securities held by the Company or its affiliates
(other than the Purchaser and subsequent Holders of Securities if such
subsequent Holders are deemed to be affiliates solely by reason of
their holdings of such Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such
required percentage.
(k) STANDOFF AGREEMENT. In connection with the public offering of any
of the Company's debt or equity securities, each Holder and its
affiliates (so long as they beneficially own at least five percent (5%)
of the capital stock of the Company) agrees, that upon request of the
Company or the underwriters managing any underwritten offering of the
Company's securities, not to sell, make any short sale of, loan, grant
any option for the purchase of, or otherwise dispose of any Securities
without the prior written consent of the Company or such underwriters,
as the case may be, for such period of time (not to exceed 120 days)
from the effective date of such registration statement as may be
requested by the underwriters; provided that the (i) executive officers
and directors of the Company who own securities of the Company and (ii)
holders of five percent (5%) or more of the capital stock of the
Company also agree to such restrictions.
Signature Page to Registration Rights Agreement
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Purchaser and the Company in accordance with its terms.
Very truly yours,
CHIPPAC, INC.
By:___________________________________________
Name: Xxxxxx X. XxXxxxx
Title: Chairman of the Board, President and
Chief Executive Officer
The foregoing Registration
Rights Agreement is hereby confirmed
and accepted as of the date first
above written.
CITICORP MEZZANINE III, L.P.
By: Citicorp Capital Investors, Limited, its general partner
By:_________________________________
Name:
Title:
ANNEX A
CHIPPAC, INC.
QUESTIONNAIRE FOR BENEFICIAL OWNERS REGARDING
SECURITIES TO BE INCLUDED IN SHELF REGISTRATION STATEMENT
The following questions (the "QUESTIONNAIRE") elicit information to
prepare (i) the Registration Statement on Form S-3 (the "SHELF REGISTRATION
STATEMENT") registering for resale the Company's 8% Convertible Subordinated
Notes due 2011 (the "NOTES"), on behalf of the beneficial owners thereof, and
the Class A Common Stock, par value, $0.01 per share, of the Company (the
"COMMON STOCK") issuable upon conversion of the Notes (the "NOTES STOCK")
(collectively, the "SECURITIES"), filed by ChipPAC, Inc. (the "COMPANY") with
the Securities Exchange Commission in accordance with the rights granted to you
and the other holders of Notes and/or Notes Stock (collectively, "SELLING
SECURITYHOLDERS") pursuant to the Registration Rights Agreement, dated June 22,
2001, by and between the Company and the purchaser party thereto (the
"REGISTRATION RIGHTS AGREEMENT") and (ii) other securities documents which may
be required in connection with the Shelf Registration Statement. By electing to
sell the Securities pursuant to the Shelf Registration Statement you agree to be
bound by the terms of the Registration Rights Agreement.
Because the information provided in this Questionnaire will be used in
connection with the preparation of documents to be filed with state and federal
agencies, it should be accurate, complete and true, and not omit any material or
important information.
By execution of this Questionnaire, you agree to notify the Company's
legal counsel as promptly as practicable of any inaccuracy or change in
information previously furnished by you to the Company or the occurrence of any
event in either case as a result of which any Prospectus included in such Shelf
Registration Statement contains or would contain an untrue statement of a
material fact regarding you or your intended method of distribution of such
Securities necessary to make the statements therein, in light of the
circumstances then existing, not misleading, and you agree promptly to furnish
to the Company's legal counsel any additional information required to correct
and update any previously furnished information or required so that such
Prospectus shall not contain, with respect to you or the distribution of
Securities held by you that are included in the Shelf Registration Statement, an
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances then existing, not
misleading.
Each beneficial owner of the Notes is being furnished with two copies
of this Questionnaire. Please complete and execute one copy and return it to the
Company's legal counsel, Xxxxxxxx & Xxxxx, 000 Xxxxx Xxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxxxxx, XX 00000, Attention: Xxxxxxx Xxx and Xxxx Xxxx, on or before
the date of the initial issuance of the Notes (the "CLOSING DATE"). By executing
this Questionnaire, you hereby consent to being named in the Shelf Registration
Statement and to the presentation of all information furnished herein which is
required to be disclosed in the Shelf Registration Statement.
PURSUANT TO THE TERMS OF THE REGISTRATION RIGHTS AGREEMENT, YOU ARE
OBLIGATED TO INDEMNIFY THE COMPANY IF THE INFORMATION YOU PROVIDE HEREIN IS
INACCURATE OR MISLEADING.
SECURITIES WILL NOT BE INCLUDED IN THE SHELF REGISTRATION STATEMENT
UNLESS YOU COMPLETE THIS QUESTIONNAIRE, SIGN IT AND DELIVER A COPY TO THE
COMPANY'S LEGAL COUNSEL IN THE MANNER DESCRIBED HEREIN AND PROMPTLY NOTIFY THE
COMPANY'S LEGAL COUNSEL OF ANY CHANGES TO THE INFORMATION CONTAINED HEREIN.
A-1
INSTRUCTIONS FOR COMPLETION OF QUESTIONNAIRE:
Please answer each question fully. Give the most exact and accurate
answers possible. If your response to any of the questions presented below is
negative or if any of the questions are not applicable, please so state in the
space provided. Please sign and date the Questionnaire. Certain terms used
herein are defined in Appendix A hereto, which should be referred to in
completing this Questionnaire.
1. GENERAL
State your full name as it should appear in any filings made.
NAME OF SELLING SECURITYHOLDER: ________________________________________________
SOCIAL SECURITY NUMBER OR FEDERAL EMPLOYER I.D. NUMBER: ________________________
BUSINESS ADDRESS: ______________________________________________________________
RESIDENCE ADDRESS: _________________________________________________ ___________
TELEPHONE NUMBER: ________________________________________________ _____________
Business: ___________________________________
Fax: ________________________________________
If an entity, please indicate principal contact for questions:
NAME: ______________________________________
ADDRESS: ___________________________________
TELEPHONE NUMBER: __________________________
FAX NUMBER: ________________________________
2. Please describe the nature of the business you or your organization
conducts.
3. Please state your current position, office or other relationship with
the Company (or its predecessors or affiliates) and any position,
office or other relationship with the Company (or its predecessors or
affiliates) during the past three years.
4. If you hold any or all of the Notes or Notes Stock on behalf of another
person or entity, please state the full name(s) and address(es) of such
person(s) or entity(ies) and the amount(s) so held.
5. Check the box which represents the CUSIP Number of the Notes that you
hold.
|| 144A Global Note; CUSIP Number:
|| ________________________________
A-2
6. Please state the amount of Notes and/or Notes Stock owned of record by
you.
Notes: ________________________________
Notes Stock: _________________________
7. Please state the amount of Notes and/or Notes Stock for which you are
the beneficial owner and the record owner.
Notes: ________________________________
Notes Stock: _________________________
8. Please state the amount of Notes and Notes Stock for which you are the
beneficial owner, but not the record owner.
Notes: ________________________________
Notes Stock: _________________________
Please include the name and address of the record owner and your relationship to
the record owner.
Notes: ________________________________
Notes Stock: _________________________
9. If any other person or entity shares voting or investment power with
you with respect to the Notes or Notes Stock listed in questions 6, 7
and 8 above, please
a. briefly identify the person or entity,
b. give the principal amount or number subject to shared voting power
or investment power and
c. summarize the arrangement.
10. Are any of the Notes or Notes Stock owned by you subject to any pledge
or other contractual arrangement?
No ____Yes ____
If yes, please explain such pledge or other contractual arrangement.
11. Please describe any other rights to purchase Notes or Notes Stock that
you have.
12. Please state the amount of Notes and Notes Stock to be offered for your
account in the Shelf Registration Statement.
Notes: ________________________________
Notes Stock: _________________________
13. Have you entered into any agreement, arrangement or understanding with
a broker or dealer with respect to the offering of the Notes or Notes
Stock to be registered in the Shelf Registration Statement?
No ____Yes ____
A-3
If yes, please set forth the terms of any such agreement, arrangement
or understanding (including without limitation volume limitations on sales,
parties to the agreement, arrangement or understanding and conditions under
which the agreement, arrangement or understanding may be terminated) below.
14. Identify any broker(s) or dealer(s) participating in the offering of
Notes or Notes Stock to be offered for your account and state the
amount of Notes and Notes Stock to be offered by each such broker.
15. Set forth below any discounts or commissions, if any, to be allowed or
paid to dealers in connection with the sale of the Notes or Notes Stock
to be offered for your account.
16. Identify any finder known to you to be involved with the distribution
of the Notes or Notes Stock to be offered for your account and, if
applicable, the finder's relationship with the Company or its officers,
directors, principal shareholders, finders or promoters.
17. Attached as Appendix B hereto is a description of a plan of
distribution that is intended to be used, in substantially the form of
Appendix B, in the Shelf Registration Statement. Please indicate
whether anything stated in Appendix B is inaccurate or misleading with
respect to your plan to distribute the Notes and Note Stock owned by
you or whether Appendix B omits to state any information about your
plan of distribution.
No ___Yes ____
If yes, describe below specifically in what manner Appendix B is
inaccurate or misleading, Please also describe below any additional information
about your plan to distribute the Notes and Notes Stock that you own.
A-4
CERTIFICATION
The information set forth above is supplied by the undersigned in
response to the request of the Company and may be used in connection with the
Shelf Registration Statement. The undersigned hereby affirms that such
information is correct as of the date hereof. The undersigned will promptly
notify the Company's legal counsel of any changes in such information, whether
such change occurred subsequent hereto and prior to the filing or effectiveness
of the Shelf Registration Statement or after the Shelf Registration Statement is
filed or becomes effective. The undersigned understands and agrees that this
Questionnaire, as completed by him or her, and any further communications by him
or her regarding the matters contemplated herein, will be relied upon by the
Company, its legal counsel, and the representatives of any underwriters and
their counsel, in connection with filings related to the Shelf Registration
Statement.
The undersigned understands that material misstatements or the omission
of material facts in the Shelf Registration Statement may give rise to civil and
criminal liabilities for the Company, each officer and director of the Company
signing the Shelf Registration Statement and other persons signing such
document.
Signature of Holder(1) _________________________________________
Please type or print name and title, if any: ___________________
Date: _______________
RETURN COMPLETED QUESTIONNAIRE ON OR BEFORE THE CLOSING DATE TO:
XXXXXXX XXX, ESQ.
XXXX XXXX, ESQ.
XXXXXXXX & XXXXX
000 XXXXX XXXXXXXX XXXXXX
00XX XXXXX
XXX XXXXXXX, XXXXXXXXXX 00000
FAX: (000) 000-0000
----------------------
(1) If this Questionnaire is being completed by or on behalf of a person other
than an individual, the entity on whose behalf the Questionnaire is being
completed should be stated.
A-5
APPENDIX A
1. ARRANGEMENT. Any plan, contract, arrangement or understanding,
whether or not set forth in a formal document.
2. ASSOCIATE. The term "associate" means:
(a) Any corporation or organization, except the Company and
its majority-owned subsidiaries, of which you are an executive officer
or partner or of which you, together with other officers or directors
of the Company, are, directly or indirectly, the beneficial owner of
10% or more of any class of equity securities.
(b) Any trust or other estate in which you have a substantial
beneficial interest or as to which you serve as trustee or in a similar
fiduciary capacity.
(c) Any relative, your spouse or any relative of your spouse
who resides with you or who is a director or officer of the Company or
its subsidiaries.
3. BENEFICIAL OWNER. A "beneficial owner" of securities is
any person who, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise has or shares:
(a) Voting power, which includes the power to vote, or to
direct the voting of, such security; and/or,
(b) Investment power, which includes the power to dispose or
direct the disposition of, such security.
Furthermore, a "beneficial owner" of a security includes any person who
has the right to acquire beneficial ownership of such security at any time
within sixty (60) days. The right to acquire beneficial ownership could (but
need not necessarily) be through (i) the exercise of any option, warrant or
right, (ii) the conversion of a security, (iii) a power to revoke or automatic
termination of a trust, discretionary account, or similar arrangement, or (iv)
otherwise.
A "beneficial owner" also includes any person who, directly or
indirectly, creates or uses a trust, proxy, power of attorney, pooling
arrangement or any other contract, arrangement or device with the purpose or
effect of divesting such person of beneficial ownership of a security or
preventing the vesting of such beneficial ownership as part of a plan to evade
the reporting requirements of any federal or state securities act.
Securities owned beneficially would include not only securities held by
you for your own benefit, whether in bearer form or registered in your own name
or otherwise, but would also include securities held by others for your benefit
or securities from which you obtain benefits substantially equivalent to those
of ownership (regardless of whether or how they are registered), such as, for
example, securities held for you by banks or other custodians, brokers (whether
in your name, their name or in "street name"), executors, administrators, or
trustees (including trusts in which you have only a remainder interest) and
securities held for your account by pledgees, and securities owned by a
partnership in which you are a member, and securities owned by any corporation
in which you and your associates own 10% or more of the stock. A person is
deemed to be the beneficial owner of securities beneficially owned by his
spouse, his minor children, or any relative sharing his home.
"Indirectly," when used to refer to beneficial ownership of securities,
means ownership through another such as a controlled corporation, member of the
family, estate, trust, partnership or other entity.
Appendix A
EXHIBIT B
================================================================================
INDENTURE
Dated as of June __, 2001
Between
ChipPAC, INC.
and
FIRSTAR BANK, N.A.
as Trustee
------------------
8% Convertible Subordinated Notes Due June __, 2011
================================================================================
Xxxxxx, Xxxxx & Xxxxxxx LLP
New York, New York
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE..................1
SECTION 1.1 Definitions......................................1
SECTION 1.2 Other Definitions................................7
SECTION 1.3 Trust Indenture Act Provisions...................8
SECTION 1.4 Rules of Construction............................9
ARTICLE 2 THE SECURITIES..............................................9
SECTION 2.1 Form and Dating..................................9
SECTION 2.2 Execution and Authentication....................10
SECTION 2.3 Registrar, Paying Agent and Conversion Agent....11
SECTION 2.4 Paying Agent to Hold Money in Trust.............11
SECTION 2.5 Security Holder Lists...........................11
SECTION 2.6 Transfer and Exchange...........................12
SECTION 2.7 Replacement Securities..........................13
SECTION 2.8 Outstanding Securities..........................13
SECTION 2.9 Treasury Securities.............................14
SECTION 2.10 Temporary Securities............................14
SECTION 2.11 Cancellation....................................14
SECTION 2.12 Additional Transfer and Exchange Requirements...14
SECTION 2.13 CUSIP Numbers...................................19
SECTION 2.14 Defaulted Interest..............................19
SECTION 2.15 Add On Securities...............................20
ARTICLE 3 REDEMPTION AND PURCHASES...................................22
SECTION 3.1 Provisional and Optional
Redemption; Notice to Trustee.................22
SECTION 3.2 Selection of Securities to Be Redeemed..........22
SECTION 3.3 Notice of Redemption............................23
SECTION 3.4 Effect of Notice of Redemption..................24
SECTION 3.5 Deposit of Redemption Price.....................24
SECTION 3.6 Securities Redeemed in Part.....................24
SECTION 3.7 Conversion Arrangement on Call for Redemption...24
SECTION 3.8 Purchase of Securities at Option of the
Holder upon Change in Control.................25
SECTION 3.9 Effect of Change in Control Purchase Notice.....27
SECTION 3.10 Deposit of Change in Control Purchase Price.....28
SECTION 3.11 Securities Purchased in Part....................28
SECTION 3.12 Compliance with Securities Laws
upon Purchase of Securities...................28
SECTION 3.13 Repayment to the Company........................29
i
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 4 CONVERSION.................................................29
SECTION 4.1 Conversion Privilege............................29
SECTION 4.2 Conversion Procedure............................29
SECTION 4.3 Fractional Shares...............................30
SECTION 4.4 Taxes on Conversion.............................31
SECTION 4.5 Company to Provide Stock........................31
SECTION 4.6 Adjustment of Conversion Price..................31
SECTION 4.7 No Adjustment...................................35
SECTION 4.8 Adjustment for Tax Purposes.....................35
SECTION 4.9 Notice of Adjustment............................35
SECTION 4.10 Notice of Certain Transactions..................36
SECTION 4.11 Effect of Reclassification, Consolidation,
Merger or Sale on Conversion Privilege........36
SECTION 4.12 Trustee's Disclaimer............................37
SECTION 4.13 Voluntary Reduction.............................37
ARTICLE 5 SUBORDINATION..............................................37
SECTION 5.1 Agreement of Subordination......................37
SECTION 5.2 Payments to Holders.............................38
SECTION 5.3 Subrogation of Securities.......................40
SECTION 5.4 Authorization to Effect Subordination...........40
SECTION 5.5 Notice to Trustee...............................41
SECTION 5.6 Trustee's Relation to Senior Indebtedness.......41
SECTION 5.7 No Impairment of Subordination..................42
SECTION 5.8 Certain Conversions Deemed Payment..............42
SECTION 5.9 Article Applicable to Paying Agents.............42
SECTION 5.10 Senior Indebtedness Entitled to Rely............42
ARTICLE 6 COVENANTS..................................................42
SECTION 6.1 Payment of Securities...........................42
SECTION 6.2 SEC Reports.....................................43
SECTION 6.3 Compliance Certificates.........................43
SECTION 6.4 Further Instruments and Acts....................43
SECTION 6.5 Maintenance of Corporate Existence..............43
SECTION 6.6 Rule 144A Information Requirements..............44
SECTION 6.7 Stay, Extension and Usury Laws..................44
SECTION 6.8 Payment of Additional Interest..................44
ii
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 7 CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE.......44
SECTION 7.1 Company May Consolidate, Etc.,
Only on Certain Terms.........................44
SECTION 7.2 Successor Substituted...........................45
SECTION 7.3 Withholding Taxes...............................45
ARTICLE 8 DEFAULT AND REMEDIES.......................................46
SECTION 8.1 Events of Default................................46
SECTION 8.2 Acceleration.....................................48
SECTION 8.3 Other Remedies...................................48
SECTION 8.4 Waiver of Defaults and Events of Default.........48
SECTION 8.5 Control by Majority..............................48
SECTION 8.6 Limitations on Suits.............................49
SECTION 8.7 Rights of Holders to Receive Payment
and to Convert.................................49
SECTION 8.8 Collection Suit by Trustee.......................49
SECTION 8.9 Trustee May File Proofs of Claim.................49
SECTION 8.10 Priorities.......................................50
SECTION 8.11 Undertaking for Costs............................50
ARTICLE 9 TRUSTEE....................................................51
SECTION 9.1 Duties of Trustee...............................51
SECTION 9.2 Rights of Trustee...............................52
SECTION 9.3 Individual Rights of Trustee....................53
SECTION 9.4 Trustee's Disclaimer............................53
SECTION 9.5 Notice of Default or Events of Default..........53
SECTION 9.6 Reports by Trustee to Holders...................53
SECTION 9.7 Compensation and Indemnity......................53
SECTION 9.8 Replacement of Trustee..........................54
SECTION 9.9 Successor Trustee by Merger, Etc................55
SECTION 9.10 Eligibility; Disqualification...................55
SECTION 9.11 Preferential Collection of Claims
Against Company...............................55
ARTICLE 10 SATISFACTION AND DISCHARGE OF INDENTURE....................55
SECTION 10.1 Satisfaction and Discharge of Indenture.........55
SECTION 10.2 Application of Trust Money......................56
SECTION 10.3 Repayment to Company............................56
SECTION 10.4 Reinstatement...................................56
ARTICLE 11 AMENDMENTS, SUPPLEMENTS AND WAIVERS........................57
SECTION 11.1 Without Consent of Holders.......................57
iii
TABLE OF CONTENTS
(continued)
SECTION 11.2 With Consent of Holders..........................57
SECTION 11.3 Compliance with Trust Indenture Act..............58
SECTION 11.4 Revocation and Effect of Consents................58
SECTION 11.5 Notation on or Exchange of Securities............59
SECTION 11.6 Trustee to Sign Amendments, Etc..................59
ARTICLE 12 MISCELLANEOUS..............................................59
SECTION 12.1 Trust Indenture Act Controls....................59
SECTION 12.2 Notices.........................................59
SECTION 12.3 Communications by Holders with Other Holders....60
SECTION 12.4 Certificate and Opinion as to
Conditions Precedent..........................60
SECTION 12.5 Record Date for Vote or Consent
of Securityholders....................... ....61
SECTION 12.6 Rules by Trustee, Paying Agent, Registrar
and Conversion Agent..........................61
SECTION 12.7 Legal Holidays..................................61
SECTION 12.8 Governing Law...................................61
SECTION 12.9 No Adverse Interpretation of Other Agreements...62
SECTION 12.10 No Recourse Against Others......................62
SECTION 12.11 Successors......................................62
SECTION 12.12 Multiple Counterparts...........................62
SECTION 12.13 Separability....................................62
SECTION 12.14 Table of Contents, Headings, Etc................62
SECTION 12.15 Improper Payments...............................62
iv
CROSS-REFERENCE TABLE*
---------------------
INDENTURE
TIA SECTION SECTION
Section 310(a)(1).....................................................9.10
(a)(2)............................................9.10
(a)(3)............................................N.A.**
(a)(4)............................................N.A.
(a)(5)............................................9.10
(b)...............................................9.8; 9.10
(c)...............................................N.A.
Section 311(a)........................................................9.11
(b)...............................................9.11
(c)...............................................N.A.
Section 312(a)........................................................2.5
(b)...............................................12.3
(c)...............................................12.3
Section 313(a)........................................................9.6
(b)(1)............................................N.A.
(b)(2)............................................9.6
(c)...............................................9.6; 12.2
(d)...............................................9.6
Section 314(a)........................................................6.2; 6.3,
6.4; 12.2
(b)...............................................N.A.
(c)(1)............................................12.4(a)
(c)(2)............................................12.4(a)
(c)(3)............................................N.A.
(d)...............................................N.A.
(e)...............................................12.4(b)
(f)...............................................N.A.
Section 315(a)........................................................9.1(b)
(b)...............................................9.5; 12.2
(c)...............................................9.1(a)
(d)...............................................9.1(c)
(e)...............................................8.11
Section 316(a)(last sentence).........................................2.9
(a)(1)(A).........................................8.5
(a)(1)(B).........................................8.4
(a)(2)............................................N.A.
(b)...............................................8.7
(c)...............................................12.5
Section 317(a)(1).....................................................8.8
(a)(2)............................................8.9
(b)...............................................2.4
---------------------
* This Cross-Reference Table shall not, for any purpose, be deemed a part of
this Indenture.
** N.A. means Not Applicable.
THIS INDENTURE dated as of June __, 2001 is between ChipPAC,
Inc., a Delaware corporation (the "COMPANY"), and Firstar Bank, N.A., a national
banking organization organized under the laws of the United States, as Trustee
(the "TRUSTEE").
In consideration of the premises and the purchase of the
Securities by the Holders thereof, both parties agree as follows for the benefit
of the other and for the equal and ratable benefit of the registered Holders of
(i) the Company's 8% Convertible Subordinated Notes Due June 15, 2011 (the
"INITIAL SECURITIES") and (ii) if and when issued, any Add On Securities (as
defined herein).
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS
"ADDITIONAL INTEREST" has the meaning specified in Section
5(a) of the Registration Rights Agreement. All references herein to interest
accrued or payable as of any date shall include any Additional Interest accrued
or payable as of such date as provided in the Registration Rights Agreement.
"ADD ON SECURITY BOARD RESOLUTIONS" means resolutions duly
adopted by the Board of Directors and delivered to the Trustee in an Officers'
Certificate providing for the issuance of Add On Securities.
"ADD ON SECURITY SUPPLEMENTAL INDENTURE" means a supplement to
this Indenture duly executed and delivered by the Company and the Trustee
pursuant to Section 2.15 providing for the issuance of Add On Securities.
"ADD ON SECURITIES" means any Securities originally issued
after the Initial Issue Date pursuant to Section 2.15.
"AFFILIATE" means, with respect to any specified person, 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 person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AGENT" means any Registrar, Paying Agent or Conversion Agent.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of beneficial ownership interests in a Global Security, the rules and
procedures of the Depositary that are applicable to such transfer or exchange.
"BANK INDEBTEDNESS" means all obligations pursuant to the
Credit Facility.
"BOARD OF DIRECTORS" means the board of directors of the
Company or any authorized committee of the Board of Directors.
"BUSINESS DAY" means each day that is not a Legal Holiday.
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"CAPITAL STOCK" of any Person means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) equity of such Person, but
excluding any debt securities convertible into such equity.
"CASH" means such coin or currency of the United States as at
any time of payment is legal tender for the payment of public and private debts.
"CERTIFICATED SECURITY" means a Security that is in
substantially the form attached hereto as EXHIBIT A and that does not include
the information or the schedule called for by footnotes 1, 3 and 4 thereof.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMON STOCK" means the Class A common stock of the Company,
par value $.01 per share, as it exists on the date of this Indenture and any
shares of any class or classes of capital stock of the Company 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, HOWEVER, that if at any time
there shall be more than one such resulting class, the shares of each such class
then so issuable on conversion of Securities shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"COMPANY" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture, and thereafter means
the successor.
"CORPORATE TRUST OFFICE" shall be the principal address of the
Trustee specified in Section 12.2 or such other address as to which the Trustee
may give notice to the Company.
"CREDIT FACILITY" means the Credit Agreement, dated as of
August 5, 1999, as amended and restated as of June 30, 2000, by and among
ChipPAC International Limited, the Company, certain of its subsidiaries, the
lenders referred to therein and Credit Suisse First Boston, as Administrative
Agent, together with the related documents thereto (including without limitation
the term loans and revolving loans thereunder, any guarantees and security
documents), as amended, extended, renewed, restated, supplemented or otherwise
modified (in whole or in part, and without limitation as to amount, terms,
conditions, covenants and other provisions) from time to time, and any agreement
(and related document) governing Indebtedness incurred to refund or refinance,
in whole or in part, the borrowings and commitments then outstanding or
permitted to be outstanding under such Credit Agreement or a successor Credit
Agreement, whether by the same or any other lender or group of lenders.
"DEFAULT" means, when used with respect to the Securities, any
event which is or, after notice or passage of time or both, would be an Event of
Default.
"DESIGNATED SENIOR INDEBTEDNESS" means (1) the Bank
Indebtedness (including the Company's guarantee of such Bank Indebtedness);
PROVIDED, HOWEVER, that bank indebtedness outstanding under any credit agreement
that is refinanced in part, but not in whole, shall only constitute Designated
Senior Indebtedness if it meets the requirements of succeeding clause (2), and
(2) any other senior indebtedness that, at the date of determination, has an
aggregate principal amount outstanding of, or under which, at the date of
determination, the holders thereof are committed to lend up to, at least $10.0
million and is specifically designated in the instrument evidencing or governing
such senior indebtedness as "designated senior indebtedness" for purposes of the
indenture.
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"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect from
time to time.
"FINAL MATURITY DATE" means June __, 2011.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect as of the date of this Indenture,
including those set forth in (1) the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants, (2) the statements and pronouncements of the Financial Accounting
Standards Board, (3) such other statements by such other entity as approved by a
significant segment of the accounting profession and (4) the rules and
regulations of the SEC governing the inclusion of financial statements
(including pro forma financial statements) in registration statements filed
under the Securities Act and periodic reports required to be filed pursuant to
Section 13 of the Exchange Act, including opinions and pronouncements in staff
accounting bulletins and similar written statements from the accounting staff of
the SEC.
"GLOBAL SECURITY" means a permanent Global Security that is in
substantially the form attached hereto as EXHIBIT A and that includes the
information and schedule called for by footnotes 1, 3 and 4 thereof and which is
deposited with the Depositary or its custodian and registered in the name of the
Depositary or its nominee.
"HOLDER" or "SECURITYHOLDER" means the person in whose name a
Security is registered on the Primary Registrar's
books.
"INDEBTEDNESS" means:
(1) all of the Company's indebtedness, obligations and other
liabilities, contingent or otherwise, for borrowed money, including:
overdrafts, foreign exchange contracts, currency exchange
agreements, interest rate protection agreements, and any loans or advances from
banks, whether or not evidenced by notes or similar instruments; or
credit or loan agreements, bonds, debentures, notes or other
written obligations, whether or not the recourse of the lender is to all of the
Company's assets or to only a portion thereof; other than any account payable or
other accrued current liability or obligation incurred in the ordinary course of
business in connection with the obtaining of materials or services;
(2) all of the Company's reimbursement obligations and other
liabilities, contingent or otherwise, with respect to letters of credit, bank
guarantees or bankers' acceptances;
(3) all of the Company's obligations and liabilities,
contingent or otherwise, in respect of leases required, in conformity with
generally accepted accounting principles, to be accounted for as capitalized
lease obligations on the Company's balance sheet;
(4) all of the Company's obligations evidenced by a note or
similar instrument given in connection with the acquisition of any businesses,
properties or assets of any kind;
(5) all of the Company's obligations issued or assumed
as the deferred purchase price of property or services, but excluding trade
accounts payable and accrued liabilities arising in the ordinary course of
business;
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(6) all of the Company's obligations and other
liabilities, contingent or otherwise, under any lease or related document,
including a purchase agreement, in connection with the lease of real property or
improvements (or any personal property included as part of any such lease) which
provides that we are contractually obligated to purchase or cause a third party
to purchase the leased property and thereby guarantee a residual value of leased
property to the lessor and all of the Company's obligations under such lease or
related document to purchase or to cause a third party to purchase the leased
property (whether or not such lease transaction is characterized as an operating
lease or a capitalized lease in accordance with generally accepted accounting
principles);
(7) all of the Company's obligations, contingent or
otherwise with respect to an interest rate, currency or other swap, cap, floor
or collar agreement, hedge agreement, forward contract, or other similar
instrument or agreement or foreign currency hedge, exchange, purchase or similar
instrument or agreement;
(8) all of the Company's direct or indirect guarantees
or similar agreements to purchase or otherwise acquire or otherwise assure a
creditor against loss in respect of indebtedness, obligations -or liabilities of
another person of the kind described in clauses (1) through (7); and
(9) any and all deferrals, renewals, extensions and
refundings of, or amendments, modifications, supplements to, any indebtedness,
obligation or liability of the kind described in clauses (1) through (8).
The amount of Indebtedness at any date shall be the
outstanding balance at such date of all unconditional obligations as described
above and the maximum liability, upon the occurrence of the contingency giving
rise to the obligation, of any contingent obligations at such date; provided,
however, that the amount outstanding at any time of any Indebtedness issued with
original issue discount shall be deemed to be the face amount of such
Indebtedness less the remaining unamortized portion of the original issue
discount of such Indebtedness at such time as determined in accordance with
generally accepted accounting principles.
"INDENTURE" means this Indenture as amended or supplemented
from time to time pursuant to the terms of this Indenture.
"INITIAL ISSUE DATE" means the date of original issuance of
the Initial Securities.
"INITIAL PURCHASER" means Citicorp Mezzanine III, L.P., any
investment fund that is an Affiliate of Citicorp Mezzanine III, L.P. or any
Person directly or indirectly controlling Citicorp Mezzanine III, L.P.
"INITIAL SECURITIES" means the 8% Convertible Subordinated
Note Due June __, 2011.
"ISSUE DATE" means the date of original issuance of any
Securities.
"OFFICER" means the Chairman or any Co-Chairman of the Board,
any Vice Chairman of the Board, the Chief Executive Officer, the President, any
Vice President, the Chief Financial Officer, the Controller, the Treasurer, the
Secretary or any Assistant Secretary of the Company.
"OFFICERS' CERTIFICATE" means a certificate signed by two
Officers; PROVIDED, HOWEVER, that for purposes of Sections 4.11 and 6.3,
"Officers' Certificate" means a certificate signed by the principal executive
officer, principal financial officer or principal accounting officer of the
Company and by one other Officer.
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"OPINION OF COUNSEL" means a written opinion from legal
counsel. The counsel may be an employee of or counsel to the Company or the
Trustee.
"PERMITTED HOLDERS" means the Principals and any Related Party
thereto and any group of investors if deemed to be a "person" (as such term is
used in Section 13(d)(3) of the Exchange Act) by virtue of the Shareholders
Agreement, as the same may be amended, modified or supplemented from time to
time, provided that
a Principal is party to such Shareholders Agreement;
the persons party to the Shareholders Agreement, as so
amended, supplemented or modified from time to time, that were not parties and
are not affiliates of persons who were parties to the Shareholders Agreement as
of August 5, 1999, together with their respective affiliates (collectively, the
"New Investors"), are not direct or indirect beneficial owners (determined
without reference to the Shareholders Agreement) of more than 50% of the voting
stock owned by all parties to the Shareholders' Agreement as so amended,
supplemented or modified; and
the New Investors, individually or in the aggregate, do not,
directly or indirectly, have the right, pursuant to the Shareholders Agreement
(as so amended, supplemented or modified from time to time) or otherwise to
designate more than 50% of the members of the Board of Directors of the Company
or any direct or indirect parent entity of the Company.
"PERSON" or "PERSON" means any individual, corporation,
partnership, limited liability company, joint venture, association, joint-stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof or any other entity.
"PRINCIPAL" of a debt security, including the Securities,
means the principal of the security plus, when appropriate, the premium, if any,
on the security.
"PRINCIPAL" means Xxxx Capital, Inc., SXI Group LLC, Citicorp
Venture Capital Ltd. and any officer, employee or director of Citicorp Venture
Capital Ltd. or any trust, partnership or other entity established solely for
the benefit of such officers, employees or directors.
"REDEMPTION DATE," when used with respect to any Security to
be redeemed, means the Provisional Redemption Date, in the event of a
Provisional Redemption pursuant to Section 3.1(a) or the Optional Redemption
Date, in the event of an Optional Redemption pursuant to Section 3.1(b), as the
case may be.
"REDEMPTION PRICE," when used with respect to any Security to
be redeemed, means the Provisional Redemption Price, in the event of a
Provisional Redemption pursuant to Section 3.1(a) or the Optional Redemption
Price, in the event of an Optional Redemption pursuant to Section 3.1(b), as the
case may be.
"REGISTRATION RIGHTS AGREEMENT" means, with respect to the
Initial Securities, the Registration Rights Agreement, dated as of June __,
2001, between the Company and Citicorp Mezzanine III, L.P., as the purchaser and
means with respect to any Add On Securities, any registration rights agreement
entered into by the Company for the benefit of the holders of such Add On
Securities.
"RELATED PARTY" with respect to any Principal means:
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any controlling stockholder or 80% (or more) owned subsidiary
of such Principal;
any trust, corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or persons beneficially holding an
80% or more controlling interest of which consist of such Principal and/or such
other persons referred to in the immediately preceding bullet; or
any affiliate of any Principal.
"REPRESENTATIVE" means (a) the indenture trustee or other
trustee, agent or representative for any Senior Indebtedness or (b) with respect
to any Senior Indebtedness that does not have any such trustee, agent or other
representative, (i) in the case of such Senior Indebtedness issued pursuant to
an agreement providing for voting arrangements as among the holders or owners of
such Senior Indebtedness, any holder or owner of such Senior Indebtedness acting
with the consent of the required persons necessary to bind such holders or
owners of such Senior Indebtedness and (ii) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.
"RESTRICTED CERTIFICATED SECURITY" means a Certificated
Security which is a Transfer Restricted Security.
"RESTRICTED GLOBAL SECURITY" means a Global Security that is a
Transfer Restricted Security.
"RULE 144" means Rule 144 under the Securities Act or any
successor to such Rule.
"RULE 144A" means Rule 144A under the Securities Act or any
successor to such Rule.
"SEC" means the Securities and Exchange Commission.
"SECURITIES" means the Initial Securities, any Add On
Securities, and any securities issued in exchange or replacement therefore, in
accordance with this Indenture.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"SECURITIES CUSTODIAN" means the Trustee, as custodian with
respect to the Securities in global form, or any successor thereto.
"SENIOR INDEBTEDNESS" means the principal of, premium, if any,
interest including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding, and rent payable on or
in connection with, and all fees, costs, expenses and other amounts accrued or
due on or in connection with, Indebtedness whether secured or unsecured,
absolute or contingent, due or to become due, outstanding on the date of the
indenture or thereafter created, incurred, assumed, guaranteed or in effect
guaranteed by the Company, including all deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to, the foregoing,
unless in the case of any particular Indebtedness the instrument creating or
evidencing the same or the assumption or guarantee thereof expressly provides
that such Indebtedness shall not be senior in right of payment to the notes or
expressly provides that such Indebtedness is on the same basis or junior to the
notes.
Senior Indebtedness does not include, among other things, any
Indebtedness to any Subsidiary of the Company or any obligation for U.S.
federal, state, local or other taxes.
-7-
"SHAREHOLDERS AGREEMENT" means the Amended and Restated
Shareholders Agreement, dated August 5, 1999, by and among Hyundai Electronics,
Hyundai Electronics America, SXI Group LLC, certain Bain Related Parties and the
Company.
"SUBSIDIARY" means, in respect of any Person, any corporation,
association, partnership or other business entity of which more than 50% of the
total voting power of shares of Capital Stock or other interests (including
partnership interests) entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers, general partners or
trustees thereof is at the time owned or controlled, directly or indirectly, by
(i) such Person; (ii) such Person and one or more Subsidiaries of such Person;
or (iii) one or more Subsidiaries of such Person.
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the date of this Indenture, except as provided in Section 11.3, and
except to the extent any amendment to the Trust Indenture Act expressly provides
for application of the Trust Indenture Act as in effect on another date.
"TRADING DAY" means, with respect to any security, each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not generally traded on the principal exchange or market in which
such security is traded.
"TRUSTEE" means the party named as such in this Indenture
until a successor replaces it in accordance with the provisions of this
Indenture, and thereafter means the successor.
"TRUST OFFICER" means, with respect to the Trustee, any
officer in its corporate trust department (or similar group) having direct
responsibility for the administration of the trust hereunder, and also, with
respect to a particular matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity with the
particular subject.
"UNRESTRICTED CERTIFICATED SECURITY" means a Certificated
Security that is not a Transfer Restricted Security.
"UNRESTRICTED GLOBAL SECURITY" means a Global Security that is
not a Transfer Restricted Security.
"VOTING STOCK" of a Person means any class or classes of
Capital Stock of such Person pursuant to which the holders of Capital Stock
under ordinary circumstances have the power to vote in the election of the board
of directors, managers or trustees of any person or other persons performing
similar functions irrespective of whether or not, at the time Capital Stock of
any other class or classes shall have, or might have, voting power by reason of
the occurrence of any contingency.
SECTION 1.2 OTHER DEFINITIONS
Term Defined
in Section
"Additional Amounts"............................................... 7.3
"Agent Members".................................................... 2.1
"Bankruptcy Law"................................................... 8.1
"Change in Control"................................................ 3.8(a)
"Change in Control Purchase Date".................................. 3.8(a)
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"Change in Control Purchase Notice"................................ 3.8(c)
"Change in Control Purchase Price"................................. 3.8(a)
"Closing Price".................................................... 4.6(g)
"Company Order".................................................... 2.2
"Conversion Agent"................................................. 2.3
"Conversion Date".................................................. 4.2
"Conversion Price"................................................. 4.6
"Current Market Price Per Share"................................... 4.6(g)
"Custodian"........................................................ 8.1
"DTC".............................................................. 2.1(a)
"Defaulted Interest" .............................................. 1.3
"Depositary"....................................................... 2.1(a)
"Determination Date"............................................... 4.6(e)
"Distribution Date"................................................ 4.6(c)
"Event of Default"................................................. 8.1
"Excluded Holder".................................................. 7.3
"Expiration Date".................................................. 4.6(f)
"Expiration Time".................................................. 4.6(f)
"Legal Holiday".................................................... 12.7
"NNM".............................................................. 4.6(g)
"Notice Date"...................................................... 3.1(a)
"NYSE"............................................................. 4.6(g)
"Optional Redemption".............................................. 3.1(b)
"Optional Redemption Date"......................................... 3.1(b)
"Optional Redemption Price"........................................ 3.1(b)
"Paying Agent"..................................................... 2.3
"Payment Blockage Notice".......................................... 5.2
"Primary Registrar"................................................ 2.3
"Provisional Redemption"........................................... 3.1(a)
"Provisional Redemption Date"...................................... 3.1(a)
"Provisional Redemption Price"..................................... 3.1(a)
"Purchased Shares"................................................. 4.6(f)
"QIB".............................................................. 2.1(a)
"Registrar"........................................................ 2.3
"Taxes"............................................................ 7.3
"Transfer Certificate"............................................. 2.12(f)
"Transfer Restricted Security"..................................... 2.12(f)
"Triggering Distribution".......................................... 4.6(e)
"Unissued Shares".................................................. 3.8(a)
SECTION 1.3 TRUST INDENTURE ACT PROVISIONS
Whenever this Indenture refers to a provision of the TIA, that
provision is incorporated by reference in and made a part of this Indenture. The
Indenture shall also include those provisions of the TIA required to be included
herein by the provisions of the Trust Indenture Reform Act of 1990. The
following TIA terms used in this Indenture have the following meanings:
"INDENTURE SECURITIES" means the Securities;
"INDENTURE SECURITY HOLDER" means a Securityholder;
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"INDENTURE TO BE QUALIFIED" means this Indenture;
"INDENTURE TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the
Trustee; and "obligor" on the indenture securities means the Company or
any other obligor on the Securities.
All other terms used in this Indenture that are defined in the
TIA, defined by TIA reference to another statute or defined by any SEC rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.4 RULES OF CONSTRUCTION
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(iii) words in the singular include the plural, and words in
the plural include the singular;
(iv) provisions apply to successive events and transactions;
(v) the term "merger" includes a statutory share exchange
and the term "merged" has a correlating meaning;
(vi) the masculine gender includes the feminine and the
neuter;
(vii) references to agreements and other instruments include
subsequent amendments thereto; and
(viii) "HEREIN," "HEREOF" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
ARTICLE 2
THE SECURITIES
SECTION 2.1 FORM AND DATING
The Initial Securities and the Trustee's certificate of
authentication shall be substantially in the respective forms set forth in
EXHIBIT A, which Exhibit is incorporated in and made part of this Indenture. The
Add On Securities shall be substantially in the same form as the Initial
Securities with such variations as may be specified in accordance with Section
2.15. Notwithstanding any differences among them, all Securities issued under
this Indenture shall vote and consent together as a single class, except on
matters relating to changes to the interest rate or the Conversion Price of a
particular series of the Securities. The Securities may have notations, legends
or endorsements required by law, stock exchange rule or usage. Each Security
shall be dated the date of its authentication.
(a) RESTRICTED GLOBAL SECURITIES AND RESTRICTED
CERTIFICATED SECURITIES. All of the Securities are initially being offered and
sold to qualified institutional buyers as defined in Rule 144A
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(collectively, "QIBS" or individually, each a "QIB") in reliance on Rule 144A
under the Securities Act and shall be issued initially in the form, at the
option of the Initial Purchaser, of one or more (i) Restricted Global
Securities, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Trustee, at its Corporate Trust Office,
as custodian for the depositary, The Depository Trust Company ("DTC") (such
depositary, or any successor thereto, being hereinafter referred to as the
"DEPOSITARY"), and registered in the name of its nominee, Cede & Co., or (ii)
Restricted Certificated Securities, and in each case shall be duly executed by
the Company and authenticated by the Trustee as hereinafter provided. The
aggregate principal amount of the Restricted Global Security may from time to
time be increased or decreased by adjustments made on the records of the
Securities Custodian as hereinafter provided, subject in each case to compliance
with the Applicable Procedures.
(b) GLOBAL SECURITIES IN GENERAL. Each Global Security
shall represent such of the outstanding Securities as shall be specified therein
and each shall provide that it shall represent the aggregate amount of
outstanding Securities from time to time endorsed thereon and that the aggregate
amount of outstanding Securities represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges, redemptions,
purchases or conversions of such Securities. Any endorsement of a Global
Security to reflect the amount of any increase or decrease in the amount of
outstanding Securities represented thereby shall be made by the Securities
Custodian in accordance with the standing instructions and procedures existing
between the Depositary and the Securities Custodian.
Members of, or participants in, the Depositary ("AGENT
MEMBERS") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary or under any Global Security,
and the Depositary (including, for this purpose, its nominee) may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and Holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (A) prevent the Company, the
Trustee or any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or (B) impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(c) CERTIFICATED SECURITIES. In addition to the initial
issuance of Restricted Certificated Securities, if any, Certificated Securities
shall be issued pursuant to Section 2.12(a)(1) hereof.
SECTION 2.2 EXECUTION AND AUTHENTICATION
An Officer shall sign the Securities for the Company by manual
or facsimile signature attested by the manual or facsimile signature of the
Secretary or an Assistant Secretary of the Company. Typographic and other minor
errors or defects in any such facsimile signature shall not affect the validity
or enforceability of any Security which has been authenticated and delivered by
the Trustee.
If an Officer whose signature is on a Security no longer holds
that office at the time the Trustee authenticates the Security, the Security
shall be valid nevertheless.
A Security shall not be valid until an authorized signatory of
the Trustee manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Initial Securities for original issue in the aggregate principal amount of up to
$50,000,000 upon receipt of a written order or orders of the Company signed by
two Officers of the Company (a "COMPANY ORDER"). The Company Order shall specify
the amount of Securities to be authenticated, shall provide that all such
Securities will be represented by a Restricted
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Global Security and the date on which each original issue of Securities is to be
authenticated. Subject to Section 2.15, the Company may issue Add On Securities.
The Trustee shall act as the initial authenticating agent.
Thereafter, the Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent shall have the same rights as an Agent to deal with the
Company or an Affiliate of the Company.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral multiple
thereof.
SECTION 2.3 REGISTRAR, PAYING AGENT AND CONVERSION AGENT
The Company shall maintain one or more offices or agencies
where Securities may be presented for registration of transfer or for exchange
(each, a "REGISTRAR"), one or more offices or agencies where Securities may be
presented for payment (each, a "PAYING AGENT"), one or more offices or agencies
where Securities may be presented for conversion (each, a "CONVERSION AGENT")
and one or more offices or agencies where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company will at all times maintain a Paying Agent, Conversion Agent, Registrar
and an office or agency where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served in the Borough of
Manhattan, the City of New York. One of the Registrars (the "PRIMARY REGISTRAR")
shall keep a register of the Securities and of their transfer and exchange.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar, Paying Agent, Conversion Agent or
agent for service of notices and demands in any place required by this
Indenture, or fails to give the foregoing notice, the Trustee shall act as such.
The Company or any Affiliate of the Company may act as Paying Agent (except for
the purposes of Section 6.1 and Article 10).
The Company hereby initially designates the Trustee as Paying
Agent, Registrar, Primary Registrar, Custodian and Conversion Agent.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST
Prior to 11:00 a.m., New York City time, on each due date of
the principal of or interest, if any, on any Securities, the Company shall
deposit with a Paying Agent a sum sufficient to pay such principal or interest,
if any, so becoming due. Subject to Section 5.7, a Paying Agent shall hold in
trust for the benefit of Security holders or the Trustee all money held by the
Paying Agent for the payment of principal of or interest, if any, on the
Securities, and if the Paying Agent is different than the Trustee, shall notify
the Trustee of any Default by the Company (or any other obligor on the
Securities) in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall, before 11:00 a.m., New York City time,
on each due date of the principal of or interest on any Securities, segregate
the money and hold it as a separate trust fund. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee, and the
Trustee may at any time during the continuance of any Default, upon written
request to a Paying Agent, require such Paying Agent to forthwith pay to the
Trustee all sums so held in trust by such Paying Agent. Upon doing so, the
Paying Agent (other than the Company) shall have no further liability for the
money.
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SECTION 2.5 SECURITY HOLDER LISTS
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Security holders. If the Trustee is not the Primary Registrar, the
Company shall furnish to the Trustee on or before each semiannual interest
payment date and at such other times as the Trustee may request in writing a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Securityholders.
SECTION 2.6 TRANSFER AND EXCHANGE
(a) Subject to compliance with any applicable
additional requirements contained in Section 2.12, when a Security is presented
to a Registrar with a request to register a transfer thereof or to exchange such
Security for an equal principal amount of Securities of other authorized
denominations, the Registrar shall register the transfer or make the exchange as
requested; PROVIDED, HOWEVER, that every Security presented or surrendered for
registration of transfer or exchange shall be duly endorsed or accompanied by an
assignment form and, if applicable, a transfer certificate each in the form
included in EXHIBIT A, and in form satisfactory to the Registrar duly executed
by the Holder thereof or its attorney duly authorized in writing. To permit
registration of transfers and exchanges, upon surrender of any Security for
registration of transfer or exchange at an office or agency maintained pursuant
to Section 2.3, the Company shall execute and the Trustee shall authenticate
Securities of a like aggregate principal amount at the Registrar's request. Any
exchange or transfer shall be without charge, except that the Company or the
Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, and provided, that
this sentence shall not apply to any exchange pursuant to Section 2.7, 2.10,
2.12(a)(1), 3.6, 3.11, 4.2 (last paragraph) or 11.5.
Neither the Company, any Registrar nor the Trustee shall be
required to exchange or register a transfer of (a) any Securities for a period
of 15 days next preceding any mailing of a notice of Securities to be redeemed
or any interest payment date, (b) any Securities or portions thereof selected or
called for redemption (except, in the case of redemption of a Security in part,
the portion not to be redeemed) or (c) any Securities or portions thereof in
respect of which a Change in Control Purchase Notice has been delivered and not
withdrawn by the Holder thereof (except, in the case of the purchase of a
Security in part, the portion not to be purchased).
All Securities issued upon any transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt
and entitled to the same benefits, and under identical terms under this
Indenture, as the Securities surrendered upon such transfer or exchange.
(b) Any Registrar appointed pursuant to Section 2.3
hereof shall provide to the Trustee such information as the Trustee may
reasonably require in connection with the delivery by such Registrar of
Securities upon transfer or exchange of Securities.
(c) Each Holder of a Security agrees to indemnify the
Company and the Trustee against any liability that may result from the transfer,
exchange or assignment of such Holder's Security in violation of any provision
of this Indenture and/or applicable United States federal or state securities
law.
The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Agent Members
or other beneficial owners of interests in any Global Security) other than to
require delivery of such certificates and other documentation or evidence as are
expressly required by, and to do so if and when expressly required by the terms
of, this Indenture, and to examine the same to determine substantial compliance
as to form with the
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express requirements hereof. The Trustee shall have no responsibility for the
actions or omissions of the Depositary, or for the accuracy of the books or
records of the Depositary.
SECTION 2.7 REPLACEMENT SECURITIES
If any mutilated Security is surrendered to the Company, a
Registrar or the Trustee, or the Company, a Registrar and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company, the applicable Registrar and
the Trustee such Security or indemnity as will be required by them to save each
of them harmless, then, in the absence of notice to the Company, such Registrar
or the Trustee that such Security has been acquired by a bona fide purchaser,
the Company shall execute, and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be redeemed or
purchased by the Company pursuant to Article 3, the Company in its discretion
may, instead of issuing a new Security, pay, redeem or purchase such Security,
as the case may be.
Upon the issuance of any new Securities under this Section
2.7, 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
reasonable expenses (including the reasonable fees and expenses of the Trustee
or the Registrar) in connection therewith.
Every new Security issued pursuant to this Section 2.7 in lieu
of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section 2.7 are (to the extent lawful)
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
SECTION 2.8 OUTSTANDING SECURITIES
Securities outstanding at any time are all Securities
authenticated by the Trustee, except for those canceled by it, those delivered
to it for cancellation and those described in this Section 2.8 as not
outstanding.
If a Security is replaced pursuant to Section 2.7, it ceases
to be outstanding unless the Company receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If a Paying Agent (other than the Company or an Affiliate of
the Company) holds on a Redemption Date, a Change in Control Purchase Date or
the Final Maturity Date money sufficient to pay the principal of (including
premium, if any) and accrued interest on Securities (or portions thereof)
payable on that date, then on and after that date such Securities (or portions
thereof, as the case may be) cease to be outstanding and interest on them ceases
to accrue.
Subject to the restrictions contained in Section 2.9, a
Security does not cease to be outstanding because the Company or an Affiliate of
the Company holds the Security.
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SECTION 2.9 TREASURY SECURITIES
In determining whether the Holders of the required principal
amount of Securities have concurred in any notice, direction, waiver or consent
given while this Indenture is qualified under the TIA, Securities owned by the
Company or any other obligor on the Securities or by any Affiliate of the
Company or of such other obligor shall be disregarded, except that, for purposes
of determining whether the Trustee shall be protected in relying on any such
notice, direction, waiver or consent, only Securities which a Trust Officer of
the Trustee actually knows are so owned shall be so disregarded. Securities so
owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to the Securities and that the pledgee is not the Company or
any other obligor on the Securities or any Affiliate of the Company or of such
other obligor.
SECTION 2.10 TEMPORARY SECURITIES
Until definitive Securities are ready for delivery, the
Company may prepare and execute, and, upon receipt of a Company Order, the
Trustee shall authenticate and deliver, temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company with the consent of the Trustee considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate and deliver definitive
Securities in exchange for temporary Securities.
SECTION 2.11 CANCELLATION
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar, the Paying Agent and the Conversion Agent shall
forward to the Trustee or its agent any Securities surrendered to them for
transfer, exchange, payment or conversion. The Trustee and no one else shall
cancel, in accordance with its standard procedures, all Securities surrendered
for transfer, exchange, redemption, payment, conversion or cancellation and
shall deliver the canceled Securities to the Company. All Securities which are
redeemed, purchased or otherwise acquired by the Company or any of its
Subsidiaries prior to the Final Maturity Date shall be delivered to the Trustee
for cancellation and the Company may not hold or resell such Securities or issue
any new Securities to replace any such Securities or any Securities that any
Holder has converted pursuant to Article 4. Without limitation to the foregoing,
any Securities acquired by any investment bankers or other purchasers pursuant
to Section 3.7 shall be surrendered for conversion and thereafter cancelled, and
may not be reoffered, sold or otherwise transferred.
SECTION 2.12 ADDITIONAL TRANSFER AND EXCHANGE REQUIREMENTS
(a) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES.
(1) Certificated Securities shall be issued in exchange
for interests in the Global Securities if (x) the Depositary notifies the
Company that it is unwilling or unable to continue as depositary for the
Global Securities or if it at any time ceases to be a "clearing agency"
registered under the Exchange Act, if so required by applicable law or
regulation and a successor depositary is not appointed by the Company
within 90 days, or (y) an Event of Default has occurred and is continuing.
In either case, the Company shall execute, and the Trustee shall, upon
receipt of a Company Order (which the Company agrees to delivery promptly),
authenticate and deliver Certificated Securities in an aggregate principal
amount equal to the principal amount of such Global Securities in exchange
therefor. Only Restricted Certificated Securities shall be issued in
exchange for beneficial interests in Restricted Global Securities, and only
Unrestricted Certificated Securities shall be issued in exchange for
beneficial interests in Unrestricted Global Securities. Certificated
Securities issued in exchange for
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beneficial interests in Global Securities shall be registered in such names
and shall be in such authorized denominations as the Depositary, pursuant
to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver or cause to be
delivered such Certificated Securities to the persons in whose names such
Securities are so registered. Such exchange shall be effected in accordance
with the Applicable Procedures.
(2) Notwithstanding any other provisions of this Indenture
other than the provisions set forth in Section 2.12(a)(1), a Global
Security may not be transferred as a whole except by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary.
(b) TRANSFER AND EXCHANGE OF CERTIFICATED SECURITIES. In the
event that Certificated Securities are issued in exchange for beneficial
interests in Global Securities in accordance with Section 2.12(a)(1) of this
Indenture, on or after such event when Certificated Securities are presented by
a Holder to a Registrar with a request:
(x) to register the transfer of the Certificated Securities to
a person who will take delivery thereof in the form of Certificated
Securities only; or
(y) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized
denominations, such Registrar shall register the transfer or make the
exchange as requested;
PROVIDED, HOWEVER, that the Certificated Securities presented or surrendered for
register of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to the first
paragraph of Section 2.6(a); and
(2) in the case of a Restricted Certificated Security,
such request shall be accompanied by the following additional information
and documents, as applicable:
(i) if such Restricted Certificated Security is being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, or such Restricted
Certificated Security is being transferred to the Company or a
Subsidiary of the Company, a certification to that effect from
such Holder (in substantially the form set forth in the
Transfer Certificate);
(ii) if such Restricted Certificated Security is being
transferred to a person the Holder reasonably believes is a
QIB in accordance with Rule 144A or pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form set forth in the Transfer Certificate);
or
(iii) if such Restricted Certificated Security is
being transferred (i) pursuant to an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which,
in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that effect
from the Holder (in substantially the form set forth in the
Transfer Certificate) and, if the Company or
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such Registrar so requests, a customary opinion of counsel,
certificates and other information reasonably acceptable to
the Company and such Registrar to the effect that such
transfer is in compliance with the registration requirements
of the Securities Act.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A RESTRICTED GLOBAL
SECURITY FOR A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL SECURITY. Any
person having a beneficial interest in a Restricted Global Security may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the form of
an Unrestricted Global Security. Upon receipt by the Trustee of written
instructions, or such other form of instructions as is customary for the
Depositary, from the Depositary or its nominee on behalf of any person having a
beneficial interest in a Restricted Global Security and the following additional
information and documents in such form as is customary for the Depositary from
the Depositary or its nominee on behalf of the person having such beneficial
interest in the Restricted Global Security (all of which may be submitted by
facsimile or electronically):
(1) if such beneficial interest is being transferred
pursuant to an effective registration statement under the Securities Act, a
certification to that effect from the transferor (in substantially the form
set forth in the Transfer Certificate); or
(2) if such beneficial interest is being transferred (i)
pursuant to an exemption from the registration requirements of the
Securities Act in accordance with Rule 144 or (ii) pursuant to an exemption
from the registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which, in the case of
a Security transferred pursuant to this clause (ii), such Security shall
cease to be a "restricted security" within the meaning of Rule 144, a
certification to that effect from the transferor (in substantially the form
set forth in the Transfer Certificate) and, if the Company or the Trustee
so requests, a customary opinion of counsel, certificates and other
information reasonably acceptable to the Company and the Trustee to the
effect that such transfer is in compliance with the registration
requirements of the Securities Act, the Trustee, as a Registrar and
Securities Custodian, shall reduce or cause to be reduced the aggregate
principal amount of the Restricted Global Security by the appropriate
principal amount and shall increase or cause to be increased the aggregate
principal amount of the Unrestricted Global Security by a like principal
amount. Such transfer shall otherwise be effected in accordance with the
Applicable Procedures. If no Unrestricted Global Security is then
outstanding, the Company shall execute and the Trustee shall, upon receipt
of a Company Order (which the Company agrees to deliver promptly),
authenticate and deliver an Unrestricted Global Security.
(d) TRANSFER OF A BENEFICIAL INTEREST IN AN UNRESTRICTED
GLOBAL SECURITY FOR A BENEFICIAL INTEREST IN A RESTRICTED GLOBAL SECURITY. Any
person having a beneficial interest in an Unrestricted Global Security may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the form of
a Restricted Global Security (it being understood that only QIBs may own
beneficial interests in Restricted Global Securities). Upon receipt by the
Trustee of written instructions or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee, on behalf of
any person having a beneficial interest in an Unrestricted Global Security and,
in such form as is customary for the Depositary, from the Depositary or its
nominee on behalf of the person having such beneficial interest in the
Unrestricted Global Security (all of which may be submitted by facsimile or
electronically) a certification from the transferor (in substantially the form
set forth in the Transfer Certificate) to the effect that such beneficial
interest is being transferred to a person that the transferor reasonably
believes is a QIB in accordance with Rule 144A. The Trustee, as a Registrar and
Securities Custodian, shall reduce or cause to be reduced the aggregate
principal amount of the Unrestricted Global Security by the appropriate
principal amount and shall increase or cause to be increased the aggregate
principal amount of the Restricted Global Security by a like principal amount.
Such transfer shall otherwise be effected in accordance with the
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Applicable Procedures. If no Restricted Global Security is then outstanding, the
Company shall execute and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to deliver promptly), authenticate and deliver a
Restricted Global Security.
(e) TRANSFERS OF CERTIFICATED SECURITIES FOR BENEFICIAL
INTEREST IN GLOBAL SECURITIES. In the event that Certificated Securities are
issued in exchange for beneficial interests in Global Securities and,
thereafter, the events or conditions specified in Section 2.12(a)(1) which
required such exchange shall cease to exist, the Company shall mail notice to
the Trustee and to the Holders stating that Holders may exchange Certificated
Securities for interests in Global Securities by complying with the procedures
set forth in this Indenture and briefly describing such procedures and the
events or circumstances requiring that such notice be given. Thereafter, if
Certificated Securities are presented by a Holder to a Registrar with a request:
(x) to register the transfer of such Certificated
Securities to a person who will take delivery thereof in the form of a
beneficial interest in a Global Security, which request shall specify
whether such Global Security will be a Restricted Global Security or an
Unrestricted Global Security; or
(y) to exchange such Certificated Securities for an
equal principal amount of beneficial interests in a Global Security,
which beneficial interests will be owned by the Holder transferring
such Certificated Securities (provided that in the case of such an
exchange, Restricted Certificated Securities may be exchanged only for
Restricted Global Securities and Unrestricted Certificated Securities
may be exchanged only for Unrestricted Global Securities), the
Registrar shall register the transfer or make the exchange as requested
by canceling such Certificated Security and causing, or directing the
Securities Custodian to cause, the aggregate principal amount of the
applicable Global Security to be increased accordingly and, if no such
Global Security is then outstanding, the Company shall issue and the
Trustee shall authenticate and deliver a new Global Security;
PROVIDED, HOWEVER, that the Certificated Securities presented or surrendered for
registration of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in accordance with the proviso to the first
paragraph of Section 2.6(a);
(2) in the case of a Restricted Certificated Security to
be transferred for a beneficial interest in an Unrestricted Global
Security, such request shall be accompanied by the following
additional information and documents, as applicable:
(i) if such Restricted Certificated Security is being
transferred pursuant to an effective registration statement
under the Securities Act, a certification to that effect from
such Holder (in substantially the form set forth in the
Transfer Certificate); or
(ii) if such Restricted Certificated Security is being
transferred pursuant to (i) an exemption from the registration
requirements of the Securities Act in accordance with Rule 144
or (ii) pursuant to an exemption from the registration
requirements of the Securities Act (other than pursuant to
Rule 144A or Rule 144) and as a result of which, in the case
of a Security transferred pursuant to this clause (ii), such
Security shall cease to be a "restricted security" within the
meaning of Rule 144, a certification to that effect from such
Holder (in substantially the form set forth in the Transfer
Certificate), and, if the Company or the Registrar so
requests, a customary opinion of counsel, certificates and
other information
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reasonably acceptable to the Company and the Trustee to the
effect that such transfer is in compliance with the
registration requirements of the Securities Act;
(3) in the case of a Restricted Certificated Security to
be transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification from
such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Restricted Certificated Security is
being transferred to a person the Holder reasonably believes is a QIB
(which, in the case of an exchange, shall be such Holder) in accordance
with Rule 144A;
(4) in the case of an Unrestricted Certificated Security
to be transferred or exchanged for a beneficial interest in an Unrestricted
Global Security, such request need not be accompanied by any additional
information or documents; and
(5) in the case of an Unrestricted Certificated Security
to be transferred or exchanged for a beneficial interest in a Restricted
Global Security, such request shall be accompanied by a certification from
such Holder (in substantially the form set forth in the Transfer
Certificate) to the effect that such Unrestricted Certificated Security is
being transferred to a person the Holder reasonably believes is a QIB
(which, in the case of an exchange, shall be such Holder) in accordance
with Rule 144A.
(f) LEGENDS-
(1) Except as permitted by the following paragraphs (2)
and (3), each Global Security and Certificated Security (and all Securities
issued in exchange therefor or upon registration of transfer or replacement
thereof) shall bear a legend in substantially the form called for by
footnote 2 to EXHIBIT A hereto (each a "TRANSFER RESTRICTED SECURITY" for
so long as it is required by this Indenture to bear such legend). Each
Transfer Restricted Security shall have attached thereto a certificate (a
"TRANSFER CERTIFICATE") in substantially the form called for by footnote 5
to EXHIBIT A hereto.
(2) Upon any sale or transfer of a Transfer Restricted
Security (w) after the expiration of the holding period applicable to sales
of the Securities under Rule 144(k) of the Securities Act, (x) pursuant to
Rule 144, (y) pursuant to an effective registration statement under the
Securities Act or (z) pursuant to any other available exemption (other than
Rule 144A) from the registration requirements of the Securities Act and as
a result of which, in the case of a Security transferred pursuant to this
clause (z), such Security shall cease to be a "restricted security" within
the meaning of Rule 144:
(i) in the case of any Restricted Certificated
Security, any Registrar shall permit the Holder thereof to exchange
such Restricted Certificated Security for an Unrestricted Certificated
Security, or (under the circumstances described in Section 2.12(e)) to
transfer such Restricted Certificated Security to a transferee who
shall take such Security in the form of a beneficial interest in an
Unrestricted Global Security, and in each case shall rescind any
restriction on the transfer of such Security; PROVIDED, HOWEVER, that
the Holder of such Restricted Certificated Security shall, in
connection with such exchange or transfer, comply with the other
applicable provisions of this Section 2.12; and
(ii) in the case of any beneficial interest in a
Restricted Global Security, the Trustee shall permit the beneficial
owner thereof to transfer such beneficial interest to a transferee who
shall take such interest in the form of a beneficial interest in an
Unrestricted Global Security and shall rescind any restriction on
transfer of such beneficial interest;
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PROVIDED, that such Unrestricted Global Security shall continue to be
subject to the provisions of Section 2.12(a)(2); and PROVIDED,
FURTHER, that the owner of such beneficial interest shall, in
connection with such transfer, comply with the other applicable
provisions of this Section 2.12.
(3) Upon the exchange, registration of transfer or
replacement of Securities not bearing the legend described in paragraph (1)
above, the Company shall execute, and the Trustee shall authenticate and
deliver Securities that do not bear such legend and that do not have a
Transfer Certificate attached thereto.
(4) After the expiration of the holding period pursuant to
Rule 144(k) of the Securities Act, the Company may with the consent of the
Holder of a Restricted Global Security or Restricted Certificated Security,
remove any restriction of transfer on such Security, and the Company shall
execute, and the Trustee shall authenticate and deliver Securities that do
not bear such legend and that do not have a Transfer Certificate attached
thereto.
(g) TRANSFERS TO THE COMPANY. Nothing in this Indenture or in
the Securities shall prohibit the sale or other transfer of any Securities
(including beneficial interests in Global Securities) to the Company or any of
its Subsidiaries, which Securities shall thereupon be cancelled in accordance
with the last sentence of Section 2.11.
SECTION 2.13 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 or purchase 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 Securities or as contained in any notice
of a redemption or purchase and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption or
purchase 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.
SECTION 2.14 DEFAULTED INTEREST
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any interest payment date ("DEFAULTED
INTEREST"), shall forthwith cease to be payable to the Holder on the relevant
regular record date, and such Defaulted Interest may be paid by the Company as
follows. The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities are registered at the close of business on
a special record date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Security and the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this section provided.
Thereupon the Company shall fix a special record date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment, and
notify the Trustee thereof. The Trustee shall, in the name and at the expense of
the Company, cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be given to each Holder of Securities
pursuant to Section 12.2, not less than 10 days prior to such special record
date. Notice of the proposed payment of such defaulted interest and the special
record date therefor having been so mailed, such Defaulted Interest shall be
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paid to the Persons in whose names the Securities are registered at the close of
business on such special record date.
Alternatively, the Company may elect to make payment of any
Defaulted Interest on the Securities in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon any such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this section, such manner of payment shall be deemed practicable by the Trustee.
SECTION 2.15 ADD ON SECURITIES
(a) The Company may, from time to time, subject to compliance
with any other applicable provisions of this Indenture, create and issue Add On
Securities, without the consent of the Holders; provided, however, that so long
as the Initial Purchaser remains a Holder, no Add On Securities shall be issued
which would result in the aggregate principal amount of all Add On Securities
issued pursuant to this Section 2.15 exceeding $49,000,000 unless consented to
in writing by the Initial Purchaser.
The Add On Securities shall have terms and conditions identical to
those of the outstanding Securities, except that Add On Securities:
(i) may have a different Issue Date than other the
outstanding Securities;
(ii) may have a different interest rate than is
payable on the other outstanding Securities;
(iii) may have a different Conversion Price than other
outstanding Securities; and
(iv) may have terms specified in the Add On Security
Board Resolutions or Add On Security Supplemental Indenture
for such Add On Securities making appropriate adjustments to
this ARTICLE II and EXHIBIT A (and related definitions)
applicable to such Add On Securities in order to conform to
and ensure compliance with the Securities Act (or other
applicable securities laws) which are not adverse in any
material respect to the Holder of any outstanding Securities
(other than such Add On Securities) and which shall not affect
the rights or duties of the Trustee.
(b) In authenticating any Add On Securities, and accepting the
additional responsibilities under this Indenture in relation to such Add On
Securities, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon:
(i) a Company Order;
(ii) the Add On Security Board Resolutions or Add On
Security Supplemental Indenture relating thereto;
(iii) an Officers' Certificate complying with Section
12.4; and
(iv) an Opinion of Counsel complying with Section 12.4
stating,
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(A) that the forms of such Securities have been
established by or pursuant to Add On Security Board
Resolutions or by an Add On Security Supplemental
Indenture, as permitted by this Section 2.15 and in
conformity with the provisions of this Indenture;
(B) the terms of such Securities have been
established by or pursuant to Add On Security Board
Resolutions or by an Add On Security Supplemental
Indenture, as permitted by this Section 2.15 and in
conformity with the provisions of this Indenture;
(C) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any customary conditions specified
in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company entitled to the
benefits provided in the Indenture, enforceable in
accordance with their respective terms, except to the
extent that the enforcement of such obligations may be
subject to bankruptcy laws or insolvency laws or other
similar laws, general principles of equity and such other
qualifications as such counsel shall conclude are
customary or do not materially affect the rights of the
Holders of such Securities;
(D) that all laws and requirements in respect of
the execution and delivery of the Securities have been
complied with; and
(E) such other matters as the Trustee may
reasonably request.
(c) If such forms or terms have been so established by or
pursuant to Add On Security Board Resolutions or an Add On Security Supplemental
Indenture, the Trustee shall have the right to decline to authenticate and
deliver any Securities:
(i) if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken;
(ii) if the Trustee by its committee of Trust Officers
in good faith determines that such action would expose the
Trustee to personal liability to Holders of any outstanding
Securities; or
(iii) if the issue of such Add On Securities pursuant
to this Indenture will affect the Trustee's own rights, duties
and immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to
the Trustee.
(d) Add On Securities shall be a separate series of Securities
under this Indenture, unless
(i) no "original issue discount" within the meaning of
Section 1257 of the Code results from the issuance of such Add
On Securities; and
(ii) the terms of such Add On Securities are identical
to the terms of the Initial Securities; except for the Issue
Date and the amount of interest payable at the first interest
payment date.
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Notwithstanding anything in this Section 2.15, the Company may
not issue Add On Securities if an Event of Default shall have occurred and be
continuing.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.1 PROVISIONAL AND OPTIONAL REDEMPTION; NOTICE TO TRUSTEE
(a) The Company may redeem any portion of the Securities at
any time prior to June 15, 2004 (a "PROVISIONAL REDEMPTION"), upon giving notice
as set forth in Section 3.3, at a redemption price equal to $1,000 per $1,000
principal amount of the Securities redeemed plus accrued and unpaid interest, if
any (such amount, the "PROVISIONAL REDEMPTION PRICE"), to but excluding the date
of redemption (the "PROVISIONAL REDEMPTION DATE") if (1) the Closing Price of
the Common Stock has exceeded 150% of the Conversion Price for at least 20
Trading Days within a period of any 30 consecutive Trading Days ending on the
Trading Day immediately preceding the date of mailing of the notice of
Provisional Redemption (the "NOTICE DATE"), and (2) a shelf registration
statement covering resales of the Securities and the Common Stock issuable upon
conversion thereof is effective and available for use and is expected to remain
effective and available for use for the 30 days following the Provisional
Redemption Date unless registration is no longer required.
(b) Except as set forth in clause (a) of this Section 3.1, the
Company shall not have the option to redeem the Securities pursuant to this
Section 3.1 prior to June 15, 2004. Thereafter, the Company shall have the
option to redeem any portion of the Securities (an "OPTIONAL REDEMPTION") upon
giving notice as set forth in Section 3.3 at the Redemption Prices (the
"OPTIONAL REDEMPTION PRICE") specified in paragraph 5 of the form of Security
attached hereto as EXHIBIT A, together with accrued interest up to but not
including the date of redemption (the "OPTIONAL REDEMPTION DATE"); PROVIDED that
if the Optional Redemption Date falls after an interest payment record date and
on or before an interest payment date, then the interest payment will be payable
to the Holders in whose name the Securities are registered at the close of
business on the relevant record date for payment of such interest.
If the Company elects to redeem Securities pursuant to clause
(a) or clause (b) of this Section 3.1 and paragraph 5 of the Securities, it
shall notify the Trustee, at the earlier of the time the Company notifies the
Holders of such redemption or 45 days prior to the Redemption Date as fixed by
the Company (unless a shorter notice shall be satisfactory to the Trustee), of
the Redemption Date and the principal amount of Securities to be redeemed. If
fewer than all of the Securities are to be redeemed, the record date relating to
such redemption shall be selected by the Company and given to the Trustee, which
record date shall not be less than ten days after the date of notice to the
Trustee.
The Trustee shall have no duty or obligation to determine whether
the Securities are eligible for Provisional Redemption, and may
conclusively rely on any such determination by the Company.
Any redemption pursuant to clause (a) or clause (b) of this
Section 3.1 shall be made pursuant to the applicable provisions of
Sections 3.2 through 3.7 and Section 3.12 hereof.
SECTION 3.2 SELECTION OF SECURITIES TO BE REDEEMED
If fewer than all of the Securities are to be redeemed, the
Trustee shall, not more than 60 days prior to the Redemption Date, select the
Securities to be redeemed. The Trustee shall make the selection from the
Securities outstanding and not previously called for redemption, by lot, or in
its discretion, on a PRO RATA basis. Securities in denominations of $1,000 may
only be redeemed in whole. The Trustee may select for
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redemption portions (equal to $1,000 or any multiple thereof) of the principal
of Securities that have denominations larger than $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed shall be treated by
the Trustee as outstanding for the purpose of such selection.
SECTION 3.3 NOTICE OF REDEMPTION
At least 20 days but not more than 60 days before a Redemption
Date, the Company shall mail or cause to be mailed a notice of redemption to
each Holder of Securities to be redeemed at such Holder's address as it appears
on the Primary Registrar's books.
The notice shall identify the Securities (including CUSIP
numbers) to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the then current Conversion Price;
(4) the name and address of each Paying Agent and Conversion
Agent;
(5) that Securities called for redemption must be presented
and surrendered to a Paying Agent to collect the Redemption Price;
(6) that Holders who wish to convert Securities must surrender
such Securities for conversion no later than the close of business on the
Business Day immediately preceding the Redemption Date and must satisfy the
other requirements in paragraph 8 of the Securities;
(7) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption shall cease accruing
on and after the Redemption Date and the only remaining right of the Holder
shall be to receive payment of the Redemption Price, plus accrued interest,
if any upon presentation and surrender to a Paying Agent of the Securities;
and
(8) if any Security is being redeemed in part, the portion of
the principal amount of such Security to be redeemed and that, after the
Redemption Date, upon presentation and surrender of such Security, a new
Security or Securities in aggregate principal amount equal to the
unredeemed portion thereof will be issued.
If any of the Securities to be redeemed is in the form of a
Global Security, then the Company shall modify such notice to the extent
necessary to accord with the procedures of the Depositary applicable to
redemptions. At the Company's written request, which request shall (i) be
irrevocable once given and (ii) set forth all relevant information required by
clauses (1) through (8) of the preceding paragraph, the Trustee shall give the
notice of redemption in the Company's name and at the Company's expense.
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SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the Redemption
Price stated in the notice, together with accrued interest, if any, except for
Securities that are converted in accordance with the provisions of Article 4.
Upon presentation and surrender to a Paying Agent, Securities called for
redemption shall be paid at the Redemption Price, plus accrued interest up to
but not including the Redemption Date; PROVIDED if the Redemption Date is an
interest payment date, interest will be payable to the Holders in whose names
the Securities are registered at the close of business on the relevant record
dates for payment of such interest.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE
The Company, prior to 11:00 a.m. New York City time, on the
Redemption Date, shall deposit with a Paying Agent (or, if the Company acts as
Paying Agent, shall segregate and hold in trust) money sufficient to pay the
Redemption Price of and accrued interest on all Securities to be redeemed on
that date, other than Securities or portions thereof called for redemption on
that date which have been delivered by the Company to the Trustee for
cancellation or have been converted. The Paying Agent shall return to the
Company any money not required for that purpose because of the conversion of
Securities pursuant to Article 4 or, if such money is then held by the Company
in trust and is not required for such purpose, it shall be discharged from the
trust.
SECTION 3.6 SECURITIES REDEEMED IN PART
Upon presentation and surrender of a Security that is redeemed
in part, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder a new Security equal in principal amount to the unredeemed
portion of the Security surrendered.
SECTION 3.7 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
In connection with any redemption of Securities, the Company
may arrange for the purchase and conversion of any Securities called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to a Paying Agent (other than
the Company or any of its Affiliates) in trust for the Holders, on or before
11:00 a.m. New York City time on the Redemption Date, an amount that, together
with any amounts deposited with such Paying Agent by the Company for the
redemption of such Securities, is not less than the Redemption Price, together
with interest accrued to, but not including, the Redemption Date, of such
Securities. Notwithstanding anything to the contrary contained in this Article
3, the obligation of the Company to pay the Redemption Price of such Securities,
including all accrued interest, shall be deemed to be satisfied and discharged
to the extent such amount is so paid by such purchasers; PROVIDED, HOWEVER, that
nothing in this Section 3.7 shall relieve the Company of its obligation to pay
the Redemption Price, plus accrued interest to but excluding the relevant
Redemption Date, on Securities called for redemption. If such an agreement with
one or more investment banks or other purchasers is entered into, any Securities
called for redemption and not surrendered for conversion by the Holders thereof
prior to the relevant Redemption Date may, at the option of the Company upon
written notice to the Trustee, 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 4) surrendered by such purchasers for
conversion, all as of 11:00 a.m. New York City time on the Redemption Date,
subject to payment of the above amount as aforesaid. The Paying Agent shall hold
and pay to the Holders whose Securities are selected for redemption any such
amount paid to it for purchase in the same manner as it would money deposited
with it by the Company for the redemption of Securities. Without the Paying
Agent's prior written consent, no arrangement between the Company and such
purchasers for the purchase and conversion of any Securities shall increase or
otherwise affect any of the powers, duties,
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responsibilities or obligations of the Paying Agent as set forth in this
Indenture, and the Company agrees to indemnify the Paying Agent from, and hold
it harmless against, any loss, liability or expense arising out of or in
connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Paying Agent in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
SECTION 3.8 PURCHASE OF SECURITIES AT OPTION OF THE HOLDER
UPON CHANGE IN CONTROL
(a) If at any time that Securities remain outstanding there
shall occur a Change in Control, Securities shall be purchased by the Company at
the option of the Holders thereof as of the date (the "CHANGE IN CONTROL
PURCHASE DATE") that is not less than 20 nor more than 30 Business Days after
the date on which the Company provides Holders notice of the occurrence of a
Change in Control (or if the Company has not therefore provided such, the 40th
Business Day following the occurrence of a Change in Control) at a purchase
price equal to the principal amount of the Securities, plus accrued and unpaid
interest to, but excluding, the Change in Control Purchase Date (the "CHANGE IN
CONTROL PURCHASE PRICE"), subject to satisfaction by or on behalf of any Holder
of the requirements set forth in subsection (c) of this Section 3.8.
A "Change in Control" shall be deemed to have occurred if any
of the following occurs after the date hereof:
(1) any "person" or "group" (as such terms are defined below),
other than one or more Permitted Holders, is or becomes the "beneficial
owner" (as defined below), directly or indirectly, of shares of Voting
Stock of the Company representing 50% or more of the total voting power of
all outstanding classes of Voting Stock of the Company or such person or
group has the power, directly or indirectly, to elect a majority of the
members of the Board of Directors of the Company; or
(2) the Company consolidates with, or merges with or into,
another Person or the Company sells, assigns, conveys, transfers, leases or
otherwise disposes of all or substantially all of the assets of the Company
to another Person, or any Person consolidates with, or merges with or into,
the Company, in any such event other than pursuant to a transaction in
which the Persons that "beneficially owned" (as defined below), directly or
indirectly, shares of Voting Stock of the Company immediately prior to such
transaction "beneficially own" (as defined below), directly or indirectly,
shares of Voting Stock of the Company representing at least a majority of
the total voting power of all outstanding classes of Voting Stock of the
surviving or transferee Person; or
(3) there shall occur the liquidation or dissolution of the
Company.
For the purpose of the definition of "Change in Control", (i) "person" and
"group" have the meanings given such terms under Section 13(d) and 14(d) of the
Exchange Act or any successor provision to either of the foregoing, and the term
"group" includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act (or any successor provision thereto), (ii) a "beneficial owner"
shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in
effect on the date of this Indenture, except that the number of shares of Voting
Stock of the Company shall be deemed to include, in addition to all outstanding
shares of Voting Stock of the Company and Unissued Shares deemed to be held by
the "person" or "group" (as such terms are defined above) or other Person with
respect to which the Change in Control determination is being made, all Unissued
Shares deemed to be held by all other Persons, and (iii) the terms "beneficially
owned" and "beneficially own" shall have meanings correlative to that of
"beneficial owner." The term "Unissued Shares" means shares of Voting Stock not
outstanding that are subject to options,
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warrants, rights to purchase or conversion privileges exercisable within 60 days
of the date of determination of a Change in Control.
Notwithstanding anything to the contrary set forth in this
Section 3.8, a Change in Control will not be deemed to have occurred if either:
(1) the Closing Price of the Common Stock for any five Trading
Days during the ten Trading Days immediately preceding the Change in
Control is at least equal to 105% of the Conversion Price in effect on such
Trading Day; or
(2) in the case of a merger or consolidation, at least 90% of
the consideration (excluding cash payments for fractional shares in the
merger or consolidation constituting the Change in Control) consists of
common stock traded on a United States national securities exchange or
quoted on the Nasdaq National Market (or which will be so traded or quoted
when issued or exchanged in connection with such Change In Control) and as
a result of such transaction or transactions the Securities become
convertible solely into such common stock.
(b) within 10 Business Days after the occurrence of a Change
in Control, the Company shall mail a written notice of the Change in Control to
the Trustee (and the Paying Agent if the Trustee is not then acting as Paying
Agent) and to each Holder (and to beneficial owners as required by applicable
law). The notice shall include the form of a Change in Control Purchase Notice
to be completed by the Holder and shall state:
(1) the date of such Change in Control and, briefly, the
events causing such Change in Control;
(2) the date by which the Change in Control Purchase
Notice pursuant to this Section 3.8 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) briefly, the conversion rights of the Securities;
(6) the name and address of each Paying Agent and
Conversion Agent;
(7) the Conversion Price and any adjustments thereto;
(8) that Securities as to which a Change in Control
Purchase Notice has been given may be converted into Common Stock pursuant
to Article 4 of this Indenture only to the extent that the Change in
Control Purchase Notice has been withdrawn in accordance with the terms of
this Indenture;
(9) the procedures that the Holder must follow to exercise
rights under this Section 3.8;
(10) the procedures for withdrawing a Change in Control
Purchase Notice, including a form of notice of withdrawal; and
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(11) that the Holder must satisfy the requirements set
forth in the Securities in order to convert the Securities.
If any of the Securities is in the form of a Global Security,
then the Company shall modify such notice to the extent necessary to accord with
the procedures of the Depositary applicable to the repurchase of Global
Securities.
(c) A Holder may exercise its rights specified in subsection
(a) of this Section 3.8 upon delivery of a written notice (which shall be in
substantially the form included in EXHIBIT A hereto and which may be delivered
by letter, overnight courier, hand delivery, facsimile transmission or in any
other written form and, in the case of Global Securities, may be delivered
electronically or by other means in accordance with the Depositary's customary
procedures) of the exercise of such rights (a "CHANGE IN CONTROL PURCHASE
NOTICE") to any Paying Agent at any time prior to the close of business on the
Business Day next preceding the Change in Control Purchase Date.
The delivery of such Security to any Paying Agent (together
with all necessary endorsements) at the office of such Paying Agent shall be a
condition to the receipt by the Holder of the Change in Control Purchase Price
therefor.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.8, a portion of a Security if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of the Indenture
that apply to the purchase of all of a Security pursuant to Sections 3.8 through
3.13 also apply to the purchase of such portion of such Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to a Paying Agent the Change in Control Purchase Notice contemplated
by this subsection (c) shall have the right to withdraw such Change in Control
Purchase Notice in whole or in a portion thereof that is a principal amount of
$1,000 or in an integral multiple thereof at any time prior to the close of
business on the Business Day next preceding the Change in Control Purchase Date
by delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 3.9.
A Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written withdrawal
thereof.
Anything herein to the contrary notwithstanding, in the case
of Global Securities, any Change in Control Purchase Notice may be delivered or
withdrawn and such Securities may be surrendered or delivered for purchase in
accordance with the Applicable Procedures as in effect from time to time.
SECTION 3.9 EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE
Upon receipt by any Paying Agent of the Change in Control
Purchase Notice specified in Section 3.8(c), the Holder of the Security in
respect of which such Change in Control Purchase Notice was given shall (unless
such Change in Control Purchase Notice is withdrawn as specified below)
thereafter be entitled to receive the Change in Control Purchase Price with
respect to such Security. Such Change in Control Purchase Price shall be paid to
such Holder promptly following the later of (a) the Change in Control Purchase
Date with respect to such Security (provided the conditions in Section 3.8(c)
have been satisfied) and (b) the time of delivery of such Security to a Paying
Agent by the Holder thereof in the manner required by Section 3.8(c). Securities
in respect of which a Change in Control Purchase Notice has been given by the
Holder thereof may not be converted into shares of Common Stock on or after the
date of the delivery of such Change in Control Purchase Notice unless such
Change in Control Purchase Notice has first been validly withdrawn.
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A Change in Control Purchase Notice may be withdrawn by means
of a written notice (which may be delivered by letter, overnight courier, hand
delivery, facsimile transmission or in any other written form and, in the case
of Global Securities, may be delivered electronically or by other means in
accordance with the Depositary's customary procedures) of withdrawal delivered
by the Holder to a Paying Agent at any time prior to the close of business on
the Business Day immediately preceding the Change in Control Purchase Date,
specifying the principal amount of the Security or portion thereof (which must
be a principal amount of $1,000 or an integral multiple of $1,000 in excess
thereof) with respect to which such notice of withdrawal is being submitted.
SECTION 3.10 DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE
On or before 11:00 a.m. New York City time on the Change in
Control Purchase Date, the Company shall deposit with the Trustee or with a
Paying Agent (other than the Company or an Affiliate of the Company) an amount
of money (in immediately available funds if deposited on such Business Day)
sufficient to pay the aggregate Change in Control Purchase Price of all the
Securities or portions thereof that are to be purchased as of such Change in
Control Purchase Date. The manner in which the deposit required by this Section
3.10 is made by the Company shall be at the option of the Company, provided that
such deposit shall be made in a manner such that the Trustee or a Paying Agent
shall have immediately available funds on the Change in Control Purchase Date.
If a Paying Agent holds, in accordance with the terms hereof,
money sufficient to pay the Change in Control Purchase Price of any Security for
which a Change in Control Purchase Notice has been tendered and not withdrawn in
accordance with this Indenture then, on the Change in Control Purchase Date,
such Security will cease to be outstanding and the rights of the Holder in
respect thereof shall terminate (other than the right to receive the Change in
Control Purchase Price as aforesaid). The Company shall publicly announce the
principal amount of Securities purchased as a result of such Change in Control
on or as soon as practicable after the Change in Control Purchase Date.
SECTION 3.11 SECURITIES PURCHASED IN PART
Any Security that is to be purchased only in part shall be
surrendered at the office of a Paying Agent and promptly after the Change in
Control Purchase Date the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of such authorized denomination or denominations
as may be requested by such Holder, in aggregate principal amount equal to, and
in exchange for, the portion of the principal amount of the Security so
surrendered that is not purchased.
SECTION 3.12 COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES
In connection with any offer to purchase or purchase of
Securities under Section 3.8, the Company shall (a) comply with Rule 13e-4 and
Rule 14e-1 (or any successor to either such Rule), if applicable, under the
Exchange Act, (b) file the related Schedule TO (or any successor or similar
schedule, form or report) if required under the Exchange Act, and (c) otherwise
comply with all federal and state securities laws in connection with such offer
to purchase or purchase of Securities, all so as to permit the rights of the
Holders and obligations of the Company under Sections 3.8 through 3.11 to be
exercised in the time and in the manner specified therein.
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SECTION 3.13 REPAYMENT TO THE COMPANY
To the extent that the aggregate amount of cash deposited by
the Company pursuant to Section 3.10 exceeds the aggregate Change in Control
Purchase Price together with interest, if any, thereon of the Securities or
portions thereof that the Company is obligated to purchase, then promptly after
the Change in Control Purchase Date the Trustee or a Paying Agent, as the case
may be, shall return any such excess cash (including any interest thereon) to
the Company.
ARTICLE 4
CONVERSION
SECTION 4.1 CONVERSION PRIVILEGE
Subject to the further provisions of this Section 4.1, a
Holder of a Security may, at the Holder's option, convert the principal amount
of such Security (or any portion thereof equal to $1,000 or any integral
multiple of $1,000 in excess thereof) into Common Stock at any time prior to the
close of business on the Final Maturity Date, at the Conversion Price then in
effect; PROVIDED, HOWEVER, that, if such Security is called for redemption or
submitted or presented for purchase pursuant to Article 3, such conversion right
shall terminate at the close of business on the Business Day immediately
preceding the Redemption Date or Change in Control Purchase Date, as the case
may be, for such Security or such earlier date as the Holder presents such
Security for redemption or for purchase (unless the Company shall Default in
making the redemption payment or Change in Control Purchase Price payment when
due, in which case the conversion right shall terminate at the close of business
on the date such Default is cured and such Security is redeemed or purchased, as
the case may be). The number of shares of Common Stock issuable upon conversion
of a Security shall be determined by dividing the principal amount of the
Security or portion thereof surrendered for conversion by the Conversion Price
in effect on the Conversion Date. The initial Conversion Price is set forth in
paragraph 8 of the Securities and is subject to adjustment as provided in this
Article 4.
Provisions of this Indenture that apply to conversion of all
of a Security also apply to conversion of a portion of a Security.
A Security in respect of which a Holder has delivered a Change
in Control Purchase Notice pursuant to Section 3.8(c) exercising the option of
such Holder to require the Company to purchase such Security may be converted
only if such Change in Control Purchase Notice is withdrawn by a written notice
of withdrawal delivered to a Paying Agent prior to the close of business on the
Business Day immediately preceding the Change in Control Purchase Date in
accordance with Section 3.9.
A Holder of Securities is not entitled to any rights of a
holder of Common Stock until such Holder has converted its Securities to Common
Stock, and only to the extent such Securities are deemed to have been converted
into Common Stock pursuant to this Article 4.
SECTION 4.2 CONVERSION PROCEDURE
To convert a Security, a Holder must (a) complete and manually
sign the conversion notice on the back of the Security and deliver such notice
to a Conversion Agent, (b) surrender the Security to a Conversion Agent, (c)
furnish appropriate endorsements and transfer documents if required by a
Registrar or a Conversion Agent, and (d) pay any transfer or similar tax, if
required. The date on which the Holder satisfies all of those requirements is
the "CONVERSION DATE." As soon as practicable after the Conversion Date, the
Company shall deliver to the Holder through a Conversion Agent a certificate for
the number of whole shares of Common
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Stock issuable upon the conversion and cash in lieu of any fractional shares
pursuant to Section 4.3. Anything herein to the contrary notwithstanding, in the
case of Global Securities, conversion notices may be delivered and such
Securities may be surrendered for conversion in accordance with the Applicable
Procedures as in effect from time to time.
The person in whose name the Common Stock certificate is
registered shall be deemed to be a stockholder of record on the Conversion Date;
PROVIDED, HOWEVER, that no surrender of a Security on any date when the stock
transfer books of the Company shall be closed shall be effective to constitute
the person or persons entitled to receive the shares of Common Stock upon such
conversion as the record holder or holders of such shares of Common Stock on
such date, but such surrender shall be effective to constitute the person or
persons entitled to receive such shares of Common Stock as the record holder or
holders thereof for all purposes at the close of business on the next succeeding
day on which such stock transfer books are open; PROVIDED, FURTHER, that such
conversion shall be at the Conversion Price in effect on the Conversion Date as
if the stock transfer books of the Company had not been closed. Upon conversion
of a Security, such person shall no longer be a Holder of such Security. No
payment or adjustment will be made for dividends or distributions on shares of
Common Stock issued upon conversion of a Security.
Securities so surrendered for conversion (in whole or in part)
during the period from the close of business on any regular record date to the
opening of business on the next succeeding interest payment date (excluding
Securities or portions thereof which are either (i) called for redemption or
(ii) subject to purchase following a Change in Control, in either case, on the
date during the period beginning at the close of business on a regular record
date and ending at the opening of business on the first Business Day after the
next succeeding interest payment date, or if such interest payment date is not a
Business Day, the second such Business Day) shall also be accompanied by payment
in funds acceptable to the Company of an amount equal to the interest payable on
such interest payment date on the principal amount of such Security then being
converted, and such interest shall be payable to such registered Holder
notwithstanding the conversion of such Security, subject to the provisions of
this Indenture relating to the payment of defaulted interest by the Company.
Except as otherwise provided in this Section 4.2, no payment or adjustment will
be made for accrued interest on a converted Security. If the Company defaults in
the payment of interest payable on such interest payment date, the Company shall
promptly repay such funds to such Holder.
Nothing in this Section shall affect the right of a Holder in
whose name any Security is registered at the close of business on a record date
to receive the interest payable on such Security on the related interest payment
date in accordance with the terms of this Indenture and the Securities. If a
Holder converts more than one Security at the same time, the number of shares of
Common Stock issuable upon the conversion shall be based on the aggregate
principal amount of Securities converted.
Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder, a new Security equal in principal amount to the unconverted portion of
the Security surrendered.
SECTION 4.3 FRACTIONAL SHARES
The Company will not issue fractional shares of Common Stock
upon conversion of Securities. In lieu thereof, the Company will pay an amount
in cash based upon the Closing Price of the Common Stock on the Trading Day
immediately prior to the Conversion Date.
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SECTION 4.4 TAXES ON CONVERSION
If a Holder converts a Security, the Company shall pay any
documentary, stamp or similar issue or transfer tax due on the issue of shares
of Common Stock upon such conversion. However, the Holder shall pay any such tax
which is due because the Holder requests the shares to be issued in a name other
than the Holder's name. The Conversion Agent may refuse to deliver the
certificate representing the Common Stock being issued in a name other than the
Holder's name until the Conversion Agent receives a sum sufficient to pay any
tax which will be due because the shares are to be issued in a name other than
the Holder's name. Nothing herein shall preclude any tax withholding required by
law or regulation.
SECTION 4.5 COMPANY TO PROVIDE STOCK
The Company shall, prior to issuance of any Securities
hereunder, and from time to time as may be necessary, reserve, out of its
authorized but unissued Common Stock, a sufficient number of shares of Common
Stock to permit the conversion of all outstanding Securities into shares of
Common Stock.
All shares of Common Stock delivered upon conversion of the
Securities shall be newly issued shares, shall be duly authorized, validly
issued, fully paid and nonassessable and shall be free from preemptive rights
and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all federal
and state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or on
the Nasdaq National Market or other over-the-counter market or such other market
on which the Common Stock is then listed or quoted; PROVIDED, HOWEVER, that if
rules of such automated quotation system or exchange permit the Company to defer
the listing of such Common Stock until the first conversion of the Notes into
Common Stock in accordance with the provisions of this Indenture, the Company
covenants to list such Common Stock issuable upon conversion of the Notes in
accordance with the requirements of such automated quotation system or exchange
at such time.
SECTION 4.6 ADJUSTMENT OF CONVERSION PRICE
The conversion price as stated in paragraph 8 of the
Securities (the "CONVERSION PRICE") shall be adjusted from time to time by the
Company as follows:
(a) In case the Company shall (i) pay a dividend on its Common
Stock in shares of Common Stock, (ii) make a distribution on its Common Stock in
shares of Common Stock, (iii) subdivide its outstanding Common Stock into a
greater number of shares, or (iv) combine its outstanding Common Stock into a
smaller number of shares, the Conversion Price in effect immediately prior
thereto shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive that number of shares of
Common Stock which it would have owned had such Security been converted
immediately prior to the happening of such event. An adjustment made pursuant to
this subsection (a) shall become effective immediately after the record date in
the case of a dividend or distribution and shall become effective immediately
after the effective date in the case of subdivision or combination.
(b) In case the Company shall issue rights or warrants to all
or substantially all holders of its Common Stock entitling them (for a period
commencing no earlier than the record date described below and expiring not more
than 60 days after such record date) to subscribe for or purchase shares of
Common Stock (or securities convertible into Common Stock) at a price per share
(or having a conversion price per share) less than the Current Market Price Per
Share of Common Stock on the record date for the determination of stockholders
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entitled to receive such rights or warrants (provided, however, if such rights
or warrants are only exercisable upon the occurrence of certain events, then the
Conversion Price shall not be adjusted unless and until such triggering events
occur), the Conversion Price in effect immediately prior thereto shall be
adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to such record date by a fraction
of which (x) the numerator shall be the number of shares of Common Stock
outstanding on such record date plus the number of shares which the aggregate
offering price of the total number of shares of Common Stock so offered (or the
aggregate conversion price of the convertible securities so offered, which shall
be determined by multiplying the number of shares of Common Stock issuable upon
conversion of such convertible securities by the conversion price per share of
Common Stock pursuant to the terms of such convertible securities) would
purchase at the Current Market Price Per Share of Common Stock on such record
date, and of which (y) the denominator shall be the number of shares of Common
Stock outstanding on such record date plus the number of additional shares of
Common Stock offered (or into which the convertible securities so offered are
convertible). Such adjustment shall be made successively whenever any such
rights or warrants are issued, and shall become effective immediately after such
record date. If at the end of the period during which such rights or warrants
are exercisable not all rights or warrants shall have been exercised, the
adjusted Conversion Price shall be immediately readjusted to what it would have
been based upon the number of additional shares of Common Stock actually issued
(or the number of shares of Common Stock issuable upon conversion of convertible
securities actually issued).
(c) In case the Company shall distribute to all or
substantially all holders of its Common Stock rights or warrants to subscribe
for or purchase any of its securities (excluding those rights and warrants
referred to in subsection (b) of this Section 4.6), then in each such case, for
so long as such rights or warrants shall not have expired or been redeemed by
the Company, the Holder of any Security surrendered for conversion shall be
entitled to receive, in addition to the shares of Common Stock issuable upon
conversion, the following:
(i) If conversion occurs on or prior to the date for
distribution of certificates evidencing such rights or
warrants (the "DISTRIBUTION DATE"), the Holder shall be
entitled to the same number of rights or warrants that a
holder of a number of shares of Common Stock equal to the
number of shares of Common Stock issuable upon conversion is
entitled; and
(ii) if conversion occurs after the Distribution Date,
the Holder shall be entitled to the same number of rights or
warrants that a holder of a number of shares of Common Stock
equal to the number of shares of Common Stock which the Holder
would have owned had such Security been converted immediately
prior to the Distribution Date, in accordance with the terms
and provisions applicable to such rights or warrants.
(d) In case the Company shall distribute to all or
substantially all holders of its Common Stock any shares of capital stock of the
Company (other than Common Stock), evidences of indebtedness or other non-cash
assets (including securities of any person other than the Company but excluding
(1) dividends or distributions paid exclusively in cash or (2) dividends or
distributions referred to in subsection (a) of this Section 4.6), or shall
distribute to all or substantially all holders of its Common Stock rights or
warrants to subscribe for or purchase any of its securities which rights or
warrants have expired or have been redeemed prior to conversion of any
Securities (excluding those rights and warrants referred to in subsections (b)
or (c) of this Section 4.6), then in each such case the Conversion Price shall
be adjusted so that the same shall equal the price determined by multiplying the
current Conversion Price by a fraction of which the numerator shall be the
Current Market Price Per Share of the Common Stock on the record date mentioned
below less the fair market value on such record date (as reasonably determined
in good faith by the Board of Directors, whose determination shall be conclusive
evidence of such fair market value and which shall be evidenced by an Officers'
Certificate delivered to the Trustee) of the portion of the capital stock,
evidences of indebtedness or
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other non-cash assets so distributed or of such rights or warrants applicable to
one share of Common Stock (determined on the basis of the number of shares of
Common Stock outstanding on the record date), and of which the denominator shall
be the Current Market Price Per Share of the Common Stock on such record date;
provided, however, that in the case of rights or warrants which have expired or
have been redeemed, such determination shall be made as of the time of
expiration or redemption, rather than the record date, and shall be based upon
the value immediately prior to such expiration or upon the redemption price, as
the case may be. Such adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of shareholders entitled to receive such
distribution.
(e) In case the Company shall, by dividend or otherwise, at
any time distribute (a "TRIGGERING DISTRIBUTION") to all or substantially all
holders of its Common Stock cash in an aggregate amount that, together with the
aggregate amount of (A) any cash and the fair market value (as reasonably
determined in good faith by the Board of Directors, whose determination shall be
conclusive evidence thereof and which shall be evidenced by an Officers'
Certificate delivered to the Trustee) of any other consideration payable in
respect of any tender offer by the Company or a Subsidiary of the Company for
Common Stock consummated within the 12 months preceding the date of payment of
the Triggering Distribution and in respect of which no Conversion Price
adjustment pursuant to this Section 4.6 has been made and (B) all other all cash
distributions to all or substantially all holders of its Common Stock made
within the 12 months preceding the date of payment of the Triggering
Distribution and in respect of which no Conversion Price adjustment pursuant to
this Section 4.6 has been made, exceeds an amount equal to 12.5% of the product
of the Current Market Price Per Share of Common Stock on the Business Day (the
"DETERMINATION DATE") immediately preceding the day on which such Triggering
Distribution is declared by the Company multiplied by the number of shares of
Common Stock outstanding on the Determination Date (excluding shares held in the
treasury of the Company), the Conversion Price shall be reduced so that the same
shall equal the price determined by multiplying such Conversion Price in effect
immediately prior to the Determination Date by a fraction of which the numerator
shall be the Current Market Price Per Share of the Common Stock on the
Determination Date less the sum of the aggregate amount of cash and the
aggregate fair market value (as reasonably determined in good faith by the Board
of Directors, whose determination shall be conclusive evidence of such fair
market value and which shall be evidenced by an Officers' Certificate delivered
to the Trustee) of any such other consideration so distributed, paid or payable
within such 12 months (including, without limitation, the Triggering
Distribution) applicable to one share of Common Stock (determined on the basis
of the number of shares of Common Stock outstanding on the Determination Date)
and the denominator shall be such Current Market Price Per Share of the Common
Stock on the Determination Date, such reduction to become effective immediately
prior to the opening of business on the day following the date on which the
Triggering Distribution is paid.
(f) (1) In case any tender offer made by the Company or any of
its Subsidiaries for Common Stock shall expire and such tender offer (as amended
upon the expiration thereof) shall involve the payment of aggregate
consideration in an amount (determined as the sum of the aggregate amount of
cash consideration and the aggregate fair market value (as reasonably determined
in good faith by the Board of Directors, whose determination shall be conclusive
evidence thereof and which shall be evidenced by an Officers' Certificate
delivered to the Trustee thereof) of any other consideration) that, together
with the aggregate amount of (A) any cash and the fair market value (as
reasonably determined in good faith by the Board of Directors, whose
determination shall be conclusive evidence thereof and which shall be evidenced
by an Officers' Certificate delivered to the Trustee) of any other consideration
payable in respect of any other tender offers by the Company or any Subsidiary
of the Company for Common Stock consummated within the 12 months preceding the
date of the Expiration Date (as defined below) and in respect of which no
Conversion Price adjustment pursuant to this Section 4.6 has been made and (B)
all cash distributions to all or substantially all holders of its Common Stock
made within the 12 months preceding the Expiration Date and in respect of which
no Conversion Price adjustment pursuant to this Section 4.6 has been made,
exceeds an amount equal to 12.5% of the product of the Current Market Price Per
Share of Common Stock as of the last date (the "EXPIRATION DATE") tenders could
have been made pursuant to such tender offer (as it may be amended) (the last
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time at which such tenders could have been made on the Expiration Date is
hereinafter sometimes called the "EXPIRATION TIME") multiplied by the number of
shares of Common Stock outstanding (including tendered shares but excluding any
shares held in the treasury of the Company) at the Expiration Time, then,
immediately prior to the opening of business on the day after the Expiration
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 close of business on the Expiration Date by a fraction of which the numerator
shall be the product of the number of shares of Common Stock outstanding
(including tendered shares but excluding any shares held in the treasury of the
Company) at the Expiration Time multiplied by the Current Market Price Per Share
of the Common Stock on the Trading Day next succeeding the Expiration Date and
the denominator shall be the sum of (x) the aggregate consideration (determined
as aforesaid) 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 and excluding any shares held in the treasury of the Company) at the
Expiration Time and the Current Market Price Per Share of Common Stock on the
Trading Day next succeeding the Expiration Date, such reduction to become
effective immediately prior to the opening of business on the day following the
Expiration Date. 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 or all such purchases or any or all such
purchases are rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would have been in effect based upon the number of shares
actually purchased. If the application of this Section 4.6(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 4.6(f).
(2) For purposes of Section 4.6(e) and 4.6(f), the term
"tender offer" shall mean and include both tender offers and exchange
offers (within the meaning of U.S. Federal securities laws), all references
to "purchases" of shares in tender offers (and all similar references)
shall mean and include both the purchase of shares in tender offers and the
acquisition of shares pursuant to exchange offers, and all references to
"tendered shares" (and all similar references) shall mean and include
shares tendered in both tender offers and exchange offers.
(g) For the purpose of any computation under subsections (b),
(d), (e) and (f) of this Section 4.6, the current market price per share of
Common Stock (the "CURRENT MARKET PRICE PER SHARE") on any date shall be deemed
to be the average of the daily Closing Prices for the 30 consecutive Trading
Days commencing 45 Trading Days before (i) the Determination Date or the
Expiration Date, as the case may be, with respect to distributions or tender
offers under subsection (f) of this Section 4.6 or (ii) the record date with
respect to distributions, issuances or other events requiring such computation
under subsection (b), (d) or (e) of this Section 4.6. The Closing Price for each
day (the "CLOSING PRICE") shall be the last reported sales price or, in case no
such reported sale takes place on such date, the average of the reported closing
bid and asked prices in either case on the New York Stock Exchange (the "NYSE")
or the Nasdaq National Market (the "NNM"), as applicable, or, if the Common
Stock is not listed or admitted to trading on the NYSE or the NNM, the principal
national securities exchange or quotation system on which the Common Stock 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 closing
sales price or, in case no reported sale takes place, the average of the closing
bid and asked prices, as furnished by any two members of the National
Association of Securities Dealers, Inc. selected from time to time by the
Company for that purpose. If no such prices are available, the Current Market
Price Per Share shall be the fair value of a share of Common Stock as reasonably
determined in good faith by the Board of Directors (which shall be evidenced by
an Officers' Certificate delivered to the Trustee).
(h) In any case in which this Section 4.6 shall require that
an adjustment be made following a record date or a Determination Date or
Expiration Date, as the case may be, established for purposes
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of this Section 4.6, the Company may elect to defer (but only until five
Business Days following the filing by the Company with the Trustee of the
certificate described in Section 4.9) issuing to the Holder of any Security
converted after such record date or Determination Date or Expiration Date the
shares of Common Stock and other capital stock of the Company issuable upon such
conversion over and above the shares of Common Stock and other capital stock of
the Company issuable upon such conversion only on the basis of the Conversion
Price prior to adjustment; and, in lieu of the shares the issuance of which is
so deferred, the Company shall issue or cause its transfer agent to issue due
bills or other appropriate evidence prepared by the Company of the right to
receive such shares. If any distribution in respect of which an adjustment to
the Conversion Price is required to be made as of the record date or
Determination Date or Expiration Date therefor is not thereafter made or paid by
the Company for any reason, the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect if such record date had not been
fixed or such effective date or Determination Date or Expiration Date had not
occurred.
SECTION 4.7 NO ADJUSTMENT
No adjustment in the Conversion Price shall be required unless
the adjustment would require an increase or decrease of at least 1% in the
Conversion Price as last adjusted; PROVIDED, HOWEVER, that any adjustments which
by reason of this Section 4.7 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article 4 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 issuances of Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for a
change in the par value or a change to no par value of the Common Stock.
To the extent that the Securities become convertible into the
right to receive cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
SECTION 4.8 ADJUSTMENT FOR TAX PURPOSES
The Company shall be entitled to make such reductions in the
Conversion Price, in addition to those required by Section 4.6, as it in its
discretion shall determine to be advisable in order that any stock dividends,
subdivisions of shares, distributions of rights to purchase stock or securities
or distributions of securities convertible into or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable.
SECTION 4.9 NOTICE OF ADJUSTMENT
Whenever the Conversion Price or conversion privilege is
adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment and file with the Trustee an Officers' Certificate briefly stating
the facts requiring the adjustment and the manner of computing it. Unless and
until the Trustee shall receive an Officers' Certificate setting forth an
adjustment of the Conversion Price, the Trustee may assume without inquiry that
the Conversion Price has not been adjusted and that the last Conversion Price of
which it has knowledge remains in effect.
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SECTION 4.10 NOTICE OF CERTAIN TRANSACTIONS
In the event that:
(1) the Company takes any action which would require an
adjustment in the Conversion Price;
(2) the Company consolidates or merges with, or transfers all
or substantially all of its property and assets to, another corporation and
shareholders of the Company must approve the transaction; or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least ten days before such date. Failure to mail such notice or
any defect therein shall not affect the validity of any transaction referred to
in clause (1), (2) or (3) of this Section 4.10.
SECTION 4.11 EFFECT OF RECLASSIFICATION, CONSOLIDATION,
MERGER OR SALE ON CONVERSION PRIVILEGE
If any of the following shall occur, namely: (a) any
reclassification or change of shares of Common Stock issuable upon conversion of
the Securities (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, or any other change for which an adjustment is provided in Section
4.6); (b) any consolidation or merger or combination to which the Company is a
party other than a merger in which the Company is the continuing corporation and
which does not result in any reclassification of, or change (other than 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) in, outstanding shares of Common
Stock; or (c) any sale or conveyance as an entirety or substantially as an
entirety of the property and assets of the Company, directly or indirectly, to
any person, then the Company, or such successor, purchasing or transferee
corporation, as the case may be, shall, as a condition precedent to such
reclassification, change, combination, consolidation, merger, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall have the right
to convert such Security into the kind and amount of shares of stock and other
securities and property (including cash) receivable upon such reclassification,
change, combination, consolidation, merger, sale or conveyance by a holder of
the number of shares of Common Stock deliverable upon conversion of such
Security immediately prior to such reclassification, change, combination,
consolidation, merger, sale or conveyance. Such supplemental indenture shall
provide for adjustments of the Conversion Price which shall be as nearly
equivalent as may be practicable to the adjustments of the Conversion Price
provided for in this Article 4. If, in the case of any such consolidation,
merger, combination, sale or conveyance, the stock or other securities and
property (including cash) receivable thereupon by a holder of Common Stock
include shares of stock or other securities and property of a person other than
the successor, purchasing or transferee corporation, as the case may be, in such
consolidation, merger, combination, 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 Securities
as the Board of Directors shall reasonably consider necessary by reason of the
foregoing. The provisions of this Section 4.11 shall similarly apply to
successive reclassifications, changes, combinations, consolidations, mergers,
sales or conveyances.
In the event the Company shall execute a supplemental
indenture pursuant to this Section 4.11, the Company shall promptly file with
the Trustee (x) an Officers' Certificate briefly stating the reasons therefor,
the kind or amount of shares of stock or other securities or property (including
cash) receivable by Holders of the
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Securities upon the conversion of their Securities after any such
reclassification, change, combination, consolidation, merger, sale or
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with and (y) an Opinion of Counsel that
all conditions precedent have been complied with, and shall promptly mail notice
thereof to all Holders.
SECTION 4.12 TRUSTEE'S DISCLAIMER
The Trustee shall have no duty to determine when an adjustment
under this Article 4 should be made, how it should be made or what such
adjustment should be, but may accept as conclusive evidence of that fact or the
correctness of any such adjustment, and shall be protected in relying upon, an
Officers' Certificate including the Officers' Certificate with respect thereto
which the Company is obligated to file with the Trustee pursuant to Section 4.9.
The Trustee makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities, and the Trustee shall
not be responsible for the Company's failure to comply with any provisions of
this Article 4.
The Trustee shall not be under any responsibility to determine
the correctness of any provisions contained in any supplemental indenture
executed pursuant to Section 4.11, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 4.11.
SECTION 4.13 VOLUNTARY REDUCTION
The Company from time to time may voluntarily reduce the
Conversion Price by any amount for any period of time if the period is at least
20 days and if the reduction is irrevocable during the period if the Board of
Directors approves such reduction and the Company provides 15 days prior notice
of any voluntary reduction in the Conversion Price; PROVIDED, HOWEVER, that in
no event may the Company reduce the Conversion Price to be less than the par
value of a share of Common Stock.
ARTICLE 5
SUBORDINATION
SECTION 5.1 AGREEMENT OF SUBORDINATION
The Company covenants and agrees, and each Holder of
Securities issued hereunder by its acceptance thereof likewise covenants and
agrees, that all Securities shall be issued subject to the provisions of this
Article 5; and each Person holding any Security, whether upon original issue or
upon transfer, assignment or exchange thereof, accepts and agrees to be bound by
such provisions.
The payment of the principal of, premium, if any, and interest
(including Additional Interest, if any) on all Securities (including, but not
limited to, the Redemption Price with respect to the Securities called for
redemption or the Change in Control Purchase Price with respect to the
Securities subject to purchase in accordance with Article 3 as provided in this
Indenture) issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment
in full in cash or other payment satisfactory to the holders of Senior
Indebtedness of all Senior Indebtedness, whether outstanding at the date of this
Indenture or thereafter incurred.
No provision of this Article 5 shall prevent the occurrence of
any Default or Event of Default hereunder.
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SECTION 5.2 PAYMENTS TO HOLDERS
No payment shall be made with respect to the principal of, or
premium, if any, or interest (including Additional Interest, if any) on the
Securities (including, but not limited to, the Redemption Price with respect to
the Securities to be called for redemption or the Change in Control Purchase
Price with respect to the Securities subject to purchase in accordance with
Article 3 as provided in this Indenture), except payments and distributions made
by the Trustee as permitted by the first or second paragraph of Section 5.5, if:
(i) a default in the payment of principal, premium,
interest, rent or other obligations due on any Designated Senior Indebtedness
occurs and is continuing (or, in the case of Designated Senior Indebtedness for
which there is a period of grace, in the event of such a default that continues
beyond the period of grace, if any, specified in the instrument or lease
evidencing such Designated Senior Indebtedness), unless and until such default
shall have been cured or waived or shall have ceased to exist; or
(ii) a default, other than a payment default, on a Designated
Senior Indebtedness occurs and is continuing that then permits holders of such
Designated Senior Indebtedness to accelerate its maturity and the Trustee
receives a notice of the default (a "PAYMENT BLOCKAGE NOTICE") from a
Representative or holder of Designated Senior Indebtedness.
Subject to the provisions of Section 5.5, if the Trustee
receives any Payment Blockage Notice pursuant to clause (ii) above, no
subsequent Payment Blockage Notice shall be effective for purposes of this
Section unless and until at least 365 days shall have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice. No nonpayment
default that existed or was continuing on the date of delivery of any Payment
Blockage Notice to the Trustee (unless such default was waived, cured or
otherwise ceased to exist and thereafter subsequently reoccurred) shall be, or
be made, the basis for a subsequent Payment Blockage Notice.
The Company may and shall resume payments on and distributions
in respect of the Securities upon the earlier of:
(a) the date upon which the default is cured or waived or
ceases to exist, or
(b) in the case of a default referred to in clause (ii) above,
179 days pass after a Payment Blockage Notice is received, unless this Article 5
otherwise prohibits the payment or distribution at the time of such payment or
distribution.
Upon any payment by the Company, or distribution of assets of
the Company of any kind or character, whether in cash, property or securities,
to creditors upon any dissolution or winding-up or liquidation or reorganization
of the Company (whether voluntary or involuntary) or in bankruptcy, insolvency,
receivership or similar proceedings, all amounts due or to become due upon all
Senior Indebtedness shall first be paid in full in cash, or other payments
satisfactory to the holders of Senior Indebtedness, before any payment is made
on account of the principal of, premium, if any, or interest (including
Additional Interest, if any) on the Securities (except payments made pursuant to
Article 10 from monies deposited with the Trustee pursuant thereto prior to
commencement of proceedings for such dissolution, winding-up, liquidation or
reorganization); and upon any such dissolution or winding-up or liquidation or
reorganization of the Company or bankruptcy, insolvency, receivership or other
proceeding, any payment by the Company, or distribution of assets of the Company
of any kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled, except for the
provision of this Article 5, shall (except as aforesaid) be paid by the Company
or by any receiver, trustee in bankruptcy, liquidating trustee, agent or other
Person making such payment or distribution, or by the Holders of the Securities
or by the Trustee under this Indenture if received by them or it,
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directly to the holders of Senior Indebtedness (PRO RATA to such holders on the
basis of the respective amounts of Senior Indebtedness held by such holders, or
as otherwise required by law or a court order) or their representative or
representatives, or to the trustee or trustees under any indenture pursuant to
which any instruments evidencing any Senior Indebtedness may have been issued,
as their respective interests may appear, to the extent necessary to pay all
Senior Indebtedness in full in cash, or other payment satisfactory to the
holders of Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness, before any payment or
distribution is made to the Holders of the Securities or to the Trustee.
For purposes of this Article 5, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 5 with respect
to the Securities to the payment of all Senior Indebtedness which may at the
time be outstanding; PROVIDED that (i) the Senior Indebtedness is assumed by the
new corporation, if any, resulting from any reorganization or readjustment, and
(ii) the rights of the holders of Senior Indebtedness (other than leases which
are not assumed by the Company or the new corporation, as the case may be) are
not, without the consent of such Holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in Article 7 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 5.2
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in Article 7.
In the event of the acceleration of the Securities because of
an Event of Default, no payment or distribution shall be made to the Trustee or
any Holder of Securities in respect of the principal of, premium, if any, or
interest (including Additional Interest, if any) on the Securities (including,
but not limited to, the Redemption Price with respect to the Securities called
for redemption or the Change in Control Purchase Price with respect to the
Securities subject to purchase in accordance with Article 3 as provided in this
Indenture), except payments and distributions made by the Trustee as permitted
by the first or second paragraph of Section 5.5, until all Senior Indebtedness
has been paid in full in cash or other payment satisfactory to the holders of
Senior Indebtedness or such acceleration is rescinded in accordance with the
terms of this Indenture.
In the event that, notwithstanding the foregoing provisions,
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (including, without limitation, by way
of setoff or otherwise), prohibited by the foregoing, shall be received by the
Trustee or the Holders of the Securities before all Senior Indebtedness is paid
in full, in cash or other payment satisfactory to the holders of Senior
Indebtedness, or provision is made for such payment thereof in accordance with
its terms in cash or other payment satisfactory to the holders of Senior
Indebtedness, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of Senior
Indebtedness or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing any
Senior Indebtedness may have been issued, as their respective interests may
appear, as calculated by the Company, for application to the payment of all
Senior Indebtedness remaining unpaid to the extent necessary to pay all Senior
Indebtedness in full, in cash or other payment satisfactory to the holders of
Senior Indebtedness, after giving effect to any concurrent payment or
distribution to or for the holders of such Senior Indebtedness.
Nothing in this Section 5.2 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 9.7. This Section 5.2
shall be subject to the further provisions of Section 5.5.
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SECTION 5.3 SUBROGATION OF SECURITIES
Subject to the payment in full, in cash or other payment
satisfactory to the holders of Senior Indebtedness, of all Senior Indebtedness,
the rights of the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article 5 (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to other indebtedness of the Company to substantially the same
extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments or distributions of cash, property or securities of the Company
applicable to the Senior Indebtedness until the principal, premium, if any, and
interest (including Additional Interest, if any) on the Securities shall be paid
in full in cash or other payment satisfactory to the holders of Senior
Indebtedness; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article 5, and no payment over
pursuant to the provisions of this Article 5, to or for the benefit of the
holders of Senior Indebtedness by Holders of the Securities or the Trustee,
shall, as between the Company, its creditors other than holders of Senior
Indebtedness, and the Holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness; and no payments or
distributions of cash, property or securities to or for the benefit of the
Holders of the Securities pursuant to the subrogation provisions of this Article
5, which would otherwise have been paid to the holders of Senior Indebtedness
shall be deemed to be a payment by the Company to or for the account of the
Securities. It is understood that the provisions of this Article 5 are and are
intended solely for the purposes of defining the relative rights of the Holders
of the Securities, on the one hand, and the holders of the Senior Indebtedness,
on the other hand.
Nothing contained in this Article 5 or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than the holders of Senior Indebtedness, and the
Holders of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders of the Securities and creditors
of the Company other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the Holder of any Security
from exercising all remedies otherwise permitted by applicable law upon Default
under this Indenture, subject to the rights, if any, under this Article 5 of the
holders of Senior Indebtedness in respect of cash, property or securities of the
Company received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article 5, the Trustee, subject to the provisions of Section
9.1, and the Holders of the Securities shall be entitled to rely upon any order
or decree made by any court of competent jurisdiction in which such bankruptcy,
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other person making such payment or distribution, delivered to the
Trustee or to the Holders of the Securities, for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon and all other facts pertinent thereto or to this Article 5.
SECTION 5.4 AUTHORIZATION TO EFFECT SUBORDINATION
Each Holder of a Security by the Holder's acceptance thereof
authorizes and directs the Trustee on the Holder's behalf to take such action as
may be necessary or appropriate to effectuate the subordination as provided in
this Article 5 and appoints the Trustee to act as the Holder's attorney-in-fact
for any and all such purposes. If the Trustee does not file a proper proof of
claim or proof of debt in the form required in any proceeding referred to in
Section 5.3 hereof at least 30 days before the expiration of the time to file
such
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claim, the holders of any Senior Indebtedness or their representatives are
hereby authorized to file an appropriate claim for and on behalf of the Holders
of the Securities.
SECTION 5.5 NOTICE TO TRUSTEE
The Company shall give prompt written notice in the form of an
Officers' Certificate to a Trust Officer of the Trustee and to any Paying Agent
of any fact known to the Company which would prohibit the making of any payment
of monies to or by the Trustee or any Paying Agent in respect of the Securities
pursuant to the provisions of this Article 5. Notwithstanding the provisions of
this Article 5 or any other provision of this Indenture, the Trustee shall not
be charged with knowledge of the existence of any facts which would prohibit the
making of any payment of monies to or by the Trustee in respect of the
Securities pursuant to the provisions of this Article 5, unless and until a
Trust Officer of the Trustee shall have received written notice thereof at the
Corporate Trust Office from the Company (in the form of an Officers'
Certificate) or a Representative or a holder or holders of Senior Indebtedness;
and before the receipt of any such written notice, the Trustee, subject to the
provisions of Section 9.1, shall be entitled in all respects to assume that no
such facts exist; PROVIDED that if on a date not fewer than one Business Day
prior to the date upon which by the terms hereof any such monies may become
payable for any purpose (including, without limitation, the payment of the
principal of, or premium, if any, or interest on any Security) the Trustee shall
not have received, with respect to such monies, the notice provided for in this
Section 5.5, then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such monies and to
apply the same to the purpose for which they were received, and shall not be
affected by any notice to the contrary which may be received by it on or after
such prior date. Notwithstanding anything in this Article 5 to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Article 10, and any such payment shall not be
subject to the provisions of Article 5.
The Trustee, subject to the provisions of Section 9.1, shall
be entitled to rely on the delivery to it of a written notice by a
Representative or a person representing himself to be a holder of Senior
Indebtedness to establish that such notice has been given by a Representative or
a holder of Senior Indebtedness. In the event that the Trustee determines in
good faith that further evidence is required with respect to the right of any
person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article 5, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 5, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 5.6 TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article 5 in respect of any Senior Indebtedness
at any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in Section 9.11 or elsewhere in this Indenture shall
deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article 5, and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and,
subject to the provisions of Section 9.1, the Trustee shall not be liable to any
holder of Senior Indebtedness if it shall pay over or deliver to Holders of
Securities, the Company or any other person money or assets to which any holder
of Senior Indebtedness shall be entitled by virtue of this Article 5 or
otherwise.
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SECTION 5.7 NO IMPAIRMENT OF SUBORDINATION
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time in
any way be prejudiced or impaired by any act or failure to act on the part of
the Company or by any act or failure to act, in good faith, by any such holder,
or by any noncompliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof which any such holder may
have or otherwise be charged with.
SECTION 5.8 CERTAIN CONVERSIONS DEEMED PAYMENT
For the purposes of this Article 5 only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance with
Article 4 shall not be deemed to constitute a payment or distribution on account
of the principal of (or premium, if any) or interest on Securities or on account
of the purchase or other acquisition of Securities, and (2) the payment,
issuance or delivery of cash (except in satisfaction of fractional shares
pursuant to Section 4.3), property or securities (other than junior securities)
upon conversion of a Security shall be deemed to constitute payment on account
of the principal of such Security. For the purposes of this Section 5.8, the
term "junior securities" means (a) shares of any stock of any class of the
Company, or (b) securities of the Company which are subordinated in right of
payment to all Senior Indebtedness which may be outstanding at the time of
issuance or delivery of such securities to substantially the same extent as, or
to a greater extent than, the Securities are so subordinated as provided in this
Article. Nothing contained in this Article 5 or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders, the right,
which is absolute and unconditional, of the Holder of any Security to convert
such Security in accordance with Article 4.
SECTION 5.9 ARTICLE APPLICABLE TO PAYING AGENTS
If at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intents and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee; PROVIDED, HOWEVER, that the
first paragraph of Section 5.5 shall not apply to the Company or any Affiliate
of the Company if it or such Affiliate acts as Paying Agent.
SECTION 5.10 SENIOR INDEBTEDNESS ENTITLED TO RELY
The holders of Senior Indebtedness (including, without
limitation, Designated Senior Indebtedness) shall have the right to rely upon
this Article 5, and no amendment or modification of the provisions contained
herein shall diminish the rights of any such holder except in accordance with
the last paragraph of Section 11.2.
ARTICLE 6
COVENANTS
SECTION 6.1 PAYMENT OF SECURITIES
The Company shall promptly make all payments in respect of the
Securities on the dates and in the manner provided in the Securities and this
Indenture. An installment of principal or interest or Additional Interest, if
any, shall be considered paid on the date it is due if the Paying Agent (other
than the Company) holds by 11:00 a.m., New York City time, on that date money,
deposited by the Company or an Affiliate thereof,
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sufficient to pay the installment. The Company shall, to the fullest extent
permitted by law, pay interest on overdue principal (including premium, if any)
and overdue installments of interest at the rate borne by the Securities per
annum. The conversion of any Securities pursuant to Article 4 hereof, together
with the making of any cash payments required to be made in accordance with the
terms of the Securities and this Indenture, shall satisfy the Company's
obligations under this Section 6.1 with respect to such Securities.
Payment of the principal of (and premium, if any) and any
interest on the Securities 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 the Corporate Trust Office of the Trustee in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts; PROVIDED, HOWEVER, that at the option of the
Company payment of interest may be made by check mailed to the address of the
Person entitled thereto as such address appears in the Register; PROVIDED
FURTHER that a Holder with an aggregate principal amount in excess of $2,000,000
will be paid by wire transfer in immediately available funds at the election of
such Holder.
SECTION 6.2 SEC REPORTS
The Company shall file all reports and other information and
documents which it is required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act, and within 15 days after it files them with the SEC,
the Company shall file copies of all such reports, information and other
documents with the Trustee.
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 Officers' Certificates).
SECTION 6.3 COMPLIANCE CERTIFICATES
The Company shall deliver to the Trustee, within 90 days after
the end of each fiscal year of the Company (beginning with the fiscal year
ending December 31, 2001), an Officers' Certificate as to the signers' knowledge
of the Company's compliance with all conditions and covenants on its part
contained in this Indenture and stating whether or not the signers know of any
Default or Event of Default. If such signers know of such a Default or Event of
Default, the Officers' Certificate shall describe the Default or Event of
Default and the efforts to remedy the same. For the purposes of this Section
6.3, compliance shall be determined without regard to any grace period or
requirement of notice provided pursuant to the terms of this Indenture.
SECTION 6.4 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 6.5 MAINTENANCE OF CORPORATE EXISTENCE
Subject to Article 7, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence.
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SECTION 6.6 RULE 144A INFORMATION REQUIREMENTS
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 Securities or
any Common Stock issued upon conversion thereof which continue to be Restricted
Securities in connection with any sale thereof and any prospective purchaser of
Securities or such Common Stock designated by 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 Securities or such
Common Stock and it will take such further action as any Holder or beneficial
holder of such Securities or such Common Stock may reasonably request, all to
the extent required from time to time to enable such Holder or beneficial holder
to sell its Securities or Common Stock without registration under the Securities
Act within the limitation of the exemption provided by Rule 144A, as such Rule
may be amended from time to time. Upon the written request of any Holder or any
beneficial holder of the Securities or such Common Stock, the Company will
deliver to such Holder a written statement as to whether it has complied with
such requirements.
SECTION 6.7 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 which would prohibit or forgive the Company from paying
all or any portion of the principal of, premium, if any, or interest (including
Additional Interest, if any) on the Securities 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
had been enacted.
SECTION 6.8 PAYMENT OF ADDITIONAL INTEREST
If Additional Interest is payable by the Company pursuant to
the Registration Rights Agreement, the Company shall deliver to the Trustee a
certificate to that effect stating (i) the amount of such Additional Interest
that is payable and (ii) the date on which such Additional Interest is payable.
Unless and until a Trust Officer of the Trustee receives such a certificate, the
Trustee may assume without inquiry that no such Additional Interest is payable.
If the Company has paid Additional Interest directly to the Persons entitled to
it, the Company shall deliver to the Trustee a certificate setting forth the
particulars of such payment.
ARTICLE 7
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other
Person (in a transaction in which the Company is not the surviving corporation)
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) in case the Company shall consolidate with or merge
into another Person (in a transaction in which the Company is not the
surviving corporation) or convey, transfer or lease its
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properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a corporation or
limited liability company organized and validly existing under (i) the laws of
the United States of America, any State thereof or the District of Columbia or
(ii) under the laws of a jurisdiction outside the United States and has common
stock or American Depository Shares representing the common stock traded on a
national securities exchange in the United States or through Nasdaq National
Market (provided, however, that the Company shall deliver to the Trustee an
Opinion of Counsel to the effect that the Holders will not recognize income,
gain or loss for U.S. federal income tax purposes as a result of such
transaction and will be subject to U.S. federal income tax on the same amounts
and at the same times as would have been the case if such transaction had not
occurred) and (iii) 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 and any premium and interest on all
the Securities and the performance or observance of every covenant of this
Indenture on the part of the Company to be performed or observed and the
conversion rights shall be provided for in accordance with Article 4, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee, by the Person (if other than the Company) formed by
such consolidation or into which the Company shall have been merged or by the
Person which shall have acquired the Company's assets;
(2) immediately after giving effect to such transaction,
no Default or Event of Default shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 7.2 SUCCESSOR SUBSTITUTED
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 7.1, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
SECTION 7.3 WITHHOLDING TAXES
All payments made under or with respect to the Securities must
be made free and clear of and without withholding or deduction for or on account
of any present or future tax, duty, levy, impost, assessment or other
governmental charge of whatever nature (including penalties, interest and other
liabilities related thereto) imposed or levied by or on behalf of any
jurisdiction from or through which payment is made or in which the payor is
organized, resident or engaged in business for tax purposes or any province or
territory thereof or by any taxing authority therein (hereinafter "TAXES"),
unless the Company is required to withhold or deduct such Taxes by law or by the
interpretation or administration thereof. If the Company is so required to
withhold or deduct any amount for or on account of Taxes from any payment made
under or with respect to the Securities, the Company will pay such additional
amounts ("ADDITIONAL AMOUNTS") as may be necessary so that the net amount
received by each Holder after such withholding or deduction (including any
withholding or
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deduction with respect to Additional Amounts) will not be less than the amount
the Holder would have received if such Taxes had not been withheld or deducted;
provided, however, that no Additional Amounts will be payable with respect to
payments made to a Holder (an "EXCLUDED HOLDER") to the extent such Holder is
subject to such Taxes by reason of its being connected with a foreign
jurisdiction thereof otherwise than by the mere holding of the Securities or the
receipt of payments thereunder or the enforcement of its rights and obligations
under the Securities. The Company will make such withholding or deduction and
remit the full amount deducted or withheld to the relevant authority as and when
required in accordance with applicable law. The Company will furnish to the
Holder, within 30 days after the payment of any Taxes, certified copies of tax
receipts evidencing such payment by the Company. The Company will upon written
request of each Holder (other than an Excluded Holder), reimburse each such
Holder for the amount of (i) any Taxes (including penalties, interest and
expenses arising therefrom or with respect thereto) imposed or levied and paid
by such Holder as a result of payments made under or with respect to the
Securities and (ii) any Taxes so levied or imposed and paid by such Holder with
respect to any reimbursement under the foregoing clause (i), but excluding any
such Taxes on such Holder's net income, so that the net amount received by such
Holder after such reimbursement will not be less than the net amount the Holder
would have received if Taxes (other than such Taxes on such Holder's net income)
on such reimbursement had not been imposed.
At least 30 days prior to each date on which payment under or
with respect to the Securities is due and payable (unless such obligation to pay
Additional Amounts arises shortly before or after the 30th day prior to such
date, in which case promptly thereafter), if the Company is obligated to pay
Additional Amounts with respect to such payment, the Company will deliver to the
Trustee an Officers' Certificate stating the fact that such Additional Amounts
will be payable and the amounts so payable and setting forth such other
information as necessary to enable the Trustee to pay such Additional Amounts to
Holders of the Securities on the payment date.
The Company will pay any present or future stamp, court or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise in any jurisdiction from the execution, delivery, enforcement
or registration of the Securities, the Indenture or any other document or
instrument in relation thereof, or the receipt of any payments with respect to
the Securities, excluding such taxes, charges or similar levies imposed by any
jurisdiction other than (i) any jurisdiction in which the Company is organized,
resident or engaged in business for tax purposes, (ii) any jurisdiction in which
any successor to the Company is organized, resident or engaged in business for
tax purposes or (iii) any jurisdiction in which a Paying Agent is located. In
addition, the Company will agree to indemnify the Holders (on an after-tax
basis) for any such Taxes paid by such Holders.
The obligations described under this heading shall survive any
termination, defeasance or discharge of the Indenture.
ARTICLE 8
DEFAULT AND REMEDIES
SECTION 8.1 EVENTS OF DEFAULT
An "Event of Default" shall occur if:
(1) the Company defaults in the payment of any interest or
Additional Interest, if any, payable to all holders of Securities (as
defined in the Registration Rights Agreement) on any Security when the same
becomes due and payable and the default continues for a period of 30 days,
whether or not such payment shall be prohibited by the provisions of
Article 5 hereof;
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(2) the Company defaults in the payment of any principal of
(including, without limitation, any premium, if any, on) any Security when
the same becomes due and payable (whether at maturity, upon redemption, on
a Change in Control Purchase Date or otherwise), whether or not such
payment shall be prohibited by the provisions of Article 5 hereof;
(3) the Company fails to comply with any of its other
agreements contained in the Securities or this Indenture and the default
continues for the period and after the notice specified below;
(4) the Company fails to give notice to the Trustee and each
Holder of a Change in Control in accordance with Section 3.8(b);
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief
against it in an involuntary case or proceeding;
(iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property; or
(iv) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company in an
involuntary case or proceeding;
(ii) appoints a Custodian of the Company or for all or
substantially all of the property of the Company; or
(iii) orders the liquidation of the Company;
and in each case the order or decree remains unstayed and in
effect for 60 days.
The term "Bankruptcy Law" means Title 11 of the United States
Code (or any successor thereto) or any similar federal or state law for the
relief of debtors. The term "Custodian" means any receiver, trustee, assignee,
liquidator, sequestrator or similar official under any Bankruptcy Law.
A Default under clause (3) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding notify the Company
and the Trustee, of the Default, and the Company does not cure the Default
within 60 days after receipt of such notice. The notice given pursuant to this
Section 8.1 must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default." When any Default under this Section 8.1 is
cured, it ceases.
The Trustee shall not be charged with knowledge of any Event
of Default unless written notice thereof shall have been given to a Trust
Officer at the Corporate Trust Office of the Trustee by the Company, a Paying
Agent, any Holder or any agent of any Holder.
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SECTION 8.2 ACCELERATION
If an Event of Default (other than an Event of Default
specified in clause (5) or (6) of Section 8.1) occurs and is continuing, the
Trustee may, by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities then outstanding may, by notice to
the Company and the Trustee, declare all unpaid principal on the Securities then
outstanding (if not then due and payable) to be due and payable upon any such
declaration, and the same shall become and be immediately due and payable. If an
Event of Default specified in clause (5) or (6) of Section 8.1 occurs, all
unpaid principal of the Securities then outstanding shall ipso facto become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder. The Holders of a majority in aggregate principal
amount of the Securities then outstanding by notice to the Trustee may rescind
an acceleration and its consequences if (a) all existing Events of Default,
other than the nonpayment of the principal of the Securities which has become
due solely by such declaration of acceleration, have been cured or waived; (b)
to the extent the payment of such interest is lawful, interest (calculated at
the rate per annum borne by the Securities) on overdue installments of interest
and overdue principal, which has become due otherwise than by such declaration
of acceleration, has been paid; and (c) the rescission would not conflict with
any judgment or decree of a court of competent jurisdiction. No such rescission
shall affect any subsequent Default or impair any right consequent thereto.
SECTION 8.3 OTHER REMEDIES
If an Event of Default occurs and is continuing, the Trustee
may, but shall not be obligated to, pursue any available remedy by proceeding at
law or in equity to collect the payment of the principal of or interest on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Securityholder in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative to the
extent permitted by law.
SECTION 8.4 WAIVER OF DEFAULTS AND EVENTS OF DEFAULT
Subject to Sections 8.7 and 11.2, the Holders of a majority in
principal amount of the Securities then outstanding by notice to the Trustee may
waive an existing Default or Event of Default and its consequence, except a
Default or Event of Default (i) in the payment of the principal of or interest,
if any, including the Redemption Price upon redemption pursuant to Section 3.1,
on any Security, (ii) in respect of a failure by the Company to convert any
Securities into Common Stock, or (iii) any Default or Event of Default in
respect of any provision of this Indenture or the Securities which, under
Section 11.2, cannot be modified or amended without the consent of the Holder of
each Security affected. When a Default or Event of Default is waived, it is
cured and ceases.
SECTION 8.5 CONTROL BY MAJORITY
The Holders of a majority in principal amount of the
Securities then outstanding may direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on it. However, the Trustee may refuse to follow any
direction that conflicts with law or this Indenture, that the Trustee determines
may be unduly prejudicial to the rights of another Holder or the Trustee, or
that may involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it; PROVIDED, HOWEVER, that the Trustee may take any
other action deemed proper by the Trustee which is not inconsistent with such
direction.
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SECTION 8.6 LIMITATIONS ON SUITS
No Holder has any right to institute any proceeding under this
Indenture, or for the appointment of a receiver or a trustee, or for any other
remedy with respect to this Indenture or the Securities (except actions for
payment of overdue principal or interest or for the conversion of the Securities
pursuant to Article 4) unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
then outstanding Securities make a written request to the Trustee to
institute such proceeding as trustee;
(3) such Holder or Holders offer reasonable indemnity to the
Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Securities then outstanding.
A Securityholder may not use this Indenture to prejudice the
rights of another Securityholder or to obtain a preference or priority over such
other Securityholder.
SECTION 8.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT AND TO CONVERT
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of the principal of and
interest, if any, including the Redemption Price upon redemption pursuant to
Section 3.1, on the Security, on or after the respective due dates therefor, to
convert such Security in accordance with Article 4 and to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 8.8 COLLECTION SUIT BY TRUSTEE
If an Event of Default in the payment of principal or interest
specified in clause (1) or (2) of Section 8.1 occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company or another obligor on the Securities for the whole amount of
principal and accrued interest remaining unpaid, together with, to the extent
that payment of such interest is lawful, interest on overdue principal and on
overdue installments of interest, in each case at the rate per annum borne by
the Securities and such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 8.9 TRUSTEE MAY FILE PROOFS OF CLAIM
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceedings relative to the Company (or any
other obligor on the Securities), its creditors or its property
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and shall be entitled and empowered to collect and receive any money or other
property payable or deliverable on any such claims and to distribute the same
and to take any other action with respect to such claims, including
participation as a member of any official committee of creditors appointed in
the matters as it deems necessary or advisable, and any Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 9.7, and to the extent that such payment of the reasonable compensation,
expenses, disbursements and advances 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, money, securities and other
property which the Holders may be entitled to receive in such proceedings,
whether in liquidation or under any plan of reorganization or arrangement or
otherwise. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to, or, on behalf of any Holder, to authorize, accept or
adopt any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 8.10 PRIORITIES
If the Trustee collects any money pursuant to this Article 8,
it shall pay out the money in the following order:
First, to the Trustee for amounts due under Section 9.7;
Second, to the holders of Senior Indebtedness to the extent
required by Article 5;
Third, to Holders for amounts due and unpaid on the Securities
for principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Fourth, to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 8.10.
SECTION 8.11 UNDERTAKING FOR COSTS
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the suit,
having due regard to the merits and good faith of the claims or defenses made by
the party litigant. This Section 8.11 does not apply to a suit made by the
Trustee, a suit by a Holder pursuant to Section 8.7, or a suit by Holders of
more than 10% in principal amount of the Securities then outstanding.
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ARTICLE 9
TRUSTEE
SECTION 9.1 DUTIES OF TRUSTEE
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in its exercise as a prudent
person would exercise or use under the circumstances in the conduct of his or
her own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. The Trustee, however, shall examine any certificates and
opinions which by any provision hereof are specifically required to be
delivered to the Trustee to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of subsection
(b) of this Section 9.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 8.5.
(d) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of its
rights or powers unless the Trustee shall have received adequate indemnity in
its opinion against potential costs and liabilities incurred by it relating
thereto.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to subsections (a), (b), (c) and (d) of this Section
9.1.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
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SECTION 9.2. RIGHTS OF TRUSTEE
Subject to Section 9.1:
(a) The Trustee may rely conclusively on any document believed
by it to be genuine and to have been signed or presented by the proper person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which shall conform
to Section 12.4(b). The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Certificate or Opinion.
(c) The Trustee may act through its agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers; provided, however, that the Trustee's conduct does not
constitute willful misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any such action taken,
omitted or suffered by it hereunder in good faith and in accordance with the
advice or opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be incurred by
it in compliance with such request or direction.
(g) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into 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 at the sole cost of the
Company and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(h) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Trust 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, and such
notice references the Securities and this Indenture.
(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.
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SECTION 9.3 INDIVIDUAL RIGHTS OF TRUSTEE
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate of the Company with the same rights it would have if it were not
Trustee. Any Agent may do the same with like rights. However, the Trustee is
subject to Sections 9.10 and 9.11.
SECTION 9.4 TRUSTEE'S DISCLAIMER
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities, and it shall not be
responsible for any statement in the Securities other than its certificate of
authentication.
SECTION 9.5 NOTICE OF DEFAULT OR EVENTS OF DEFAULT
If a Default or an Event of Default occurs and is continuing
and if it is known to a Trust Officer of the Trustee, the Trustee shall mail to
each Securityholder notice of the Default or Event of Default within 90 days
after it occurs. However, the Trustee may withhold the notice if and so long as
a committee of its Trust Officers in good faith determines that withholding
notice is in the interests of Securityholders, except in the case of a Default
or an Event of Default in payment of the principal of or interest on any
Security.
SECTION 9.6 REPORTS BY TRUSTEE TO HOLDERS
If such report is required by TIA Section 313, within 60 days
after each May 15, beginning with May 15, 2002, the Trustee shall mail to each
Securityholder a brief report dated as of such May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Section 313(b)(2) and
(c).
A copy of each report at the time of its mailing to
Securityholders shall be mailed to the Company and filed with the SEC and each
stock exchange, if any, on which the Securities are listed or quoted. The
Company shall notify the Trustee whenever the Securities become listed on any
stock exchange or listed or admitted to trading on any quotation system and any
changes in the stock exchanges or quotation systems on which the Securities are
listed or admitted to trading and of any delisting thereof.
SECTION 9.7 COMPENSATION AND INDEMNITY
The Company shall pay to the Trustee from time to time such
compensation (as agreed to from time to time by the Company and the Trustee in
writing) for its services. The Company shall reimburse the Trustee upon request
for all reasonable, actual disbursements, expenses and advances incurred or made
by it. Such expenses may include the reasonable, actual compensation,
disbursements and expenses of the Trustee's agents and counsel. All rights,
protections and benefits of the Trustee shall extend to the Trustee acting as
Conversion Agent, Paying Agent, Registrar, Primary Registrar or other Agent with
respect hereto.
The Company shall indemnify the Trustee or any predecessor
Trustee (which for purposes of this Section 9.7 shall include its officers,
directors, employees and agents) for, and hold it harmless against, any and all
loss, liability or expense (including reasonable legal fees and expenses)
incurred by it in connection with the acceptance or administration of its duties
under this Indenture or any action or failure to act as authorized or within the
discretion or rights or powers conferred upon the Trustee hereunder including
the reasonable costs and expenses of the Trustee and its counsel in defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. The Trustee shall notify
the Company
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promptly of any claim asserted against the Trustee for which it may seek
indemnity. The Company need not pay for any settlement without its written
consent, which shall not be unreasonably withheld.
The Company need not reimburse the Trustee for any expense or
indemnify it against any loss or liability incurred by it resulting from its own
willful misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section
9.7, the Trustee shall have a senior claim to which the Securities are hereby
made subordinate on all money or property held or collected by the Trustee,
except such money or property held in trust to pay the principal of and interest
on the Securities. The obligations of the Company under this Section 9.7 shall
survive the satisfaction and discharge of this Indenture or the resignation or
removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (5) or (6) of Section 8.1 occurs, the
expenses and the compensation for the services are intended to constitute
expenses of administration under any Bankruptcy Law. The provisions of this
Section shall survive the termination of this Indenture.
SECTION 9.8 REPLACEMENT OF TRUSTEE
The Trustee may resign by so notifying the Company. The
Holders of a majority in principal amount of the Securities then outstanding may
remove the Trustee by so notifying the Trustee and may, with the Company's
written consent, appoint a successor Trustee. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 9.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. The resignation or removal of a Trustee shall not be
effective until a successor Trustee shall have delivered the written acceptance
of its appointment as described below.
If a successor Trustee does not take office within 45 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of 10% in principal amount of the Securities then
outstanding may petition any court of competent jurisdiction for the appointment
of a successor Trustee at the expense of the Company.
If the Trustee fails to comply with Section 9.10, any Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee and be released from its obligations (exclusive of any
liabilities that the retiring Trustee may have incurred while acting as Trustee)
hereunder, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Holder.
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A retiring Trustee shall not be liable for the acts or
omissions of any successor Trustee after its succession.
Notwithstanding replacement of the Trustee pursuant to this
Section 9.8, the Company's obligations under Section 9.7 shall continue for the
benefit of the retiring Trustee.
SECTION 9.9 SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets (including the
administration of this Indenture) to, another corporation, the resulting,
surviving or transferee corporation, without any further act, shall be the
successor Trustee, provided such transferee corporation shall qualify and be
eligible under Section 9.10. Such successor Trustee shall promptly mail notice
of its succession to the Company and each Holder.
SECTION 9.10 ELIGIBILITY; DISQUALIFICATION
The Trustee shall always satisfy the requirements of
paragraphs (1), (2) and (5) of TIA Section 310(a). The Trustee (or its parent
holding company) shall have a combined capital and surplus of at least
$50,000,000. If at any time the Trustee shall cease to satisfy any such
requirements, it shall resign immediately in the manner and with the effect
specified in this Article 9. The Trustee shall be subject to the provisions of
TIA Section 310(b). Nothing herein shall prevent the Trustee from filing with
the SEC the application referred to in the penultimate paragraph of TIA Section
310(b).
SECTION 9.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY
The Trustee shall comply with TIA Section 311(a), excluding
any creditor relationship listed in TIA Section 311(b). A Trustee who has
resigned or been removed shall be subject to TIA Section 311(a) to the extent
indicated therein.
ARTICLE 10
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE
This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for and except as further provided below),
and the Trustee, on demand of and at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(i) all Securities theretofore authenticated and delivered
(other than (x) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in
Section 2.7 and (y) Securities for whose payment money has
theretofore been deposited in trust and thereafter repaid to
the Company as provided in Section 10.3) have been delivered
to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the
Trustee for cancellation (x) have become due and payable, (y)
will become due and payable at the Final Maturity Date
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within ninety days, or (z) have been called for redemption
within ninety days under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of clause (i) or (ii) above, has irrevocably
deposited or caused to be irrevocably deposited with the Trustee or a Paying
Agent (other than the Company or any of its Affiliates) as trust funds in trust
for the purpose cash in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest or Redemption Price, as the case may
be, to the date of such deposit (in the case of Securities which have become due
and payable) or to the Final Maturity Date or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 9.7 shall
survive and, if money shall have been deposited with the Trustee pursuant to
subclause (y) or (z) of clause (1)(ii) of this Section, the provisions of
Sections 2.3, 2.4, 2.5, 2.6, 2.7, 2.12, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13 and
12.5, Article 4, the last paragraph of Section 6.2 and this Article 10, shall
survive until the Securities have been paid in full.
SECTION 10.2 APPLICATION OF TRUST MONEY
Subject to the provisions of Section 10.3, the Trustee or a
Paying Agent shall hold in trust, for the benefit of the Holders, all money
deposited with it pursuant to Section 10.1 and shall apply the deposited money
in accordance with this Indenture and the Securities to the payment of the
principal of and interest on the Securities. Money so held in trust shall not be
subject to the subordination provisions of Article 5.
SECTION 10.3 REPAYMENT TO COMPANY
The Trustee and each Paying Agent shall promptly pay to the
Company upon request any excess money (i) deposited with them pursuant to
Section 10.1 and (ii) held by them at any time.
The Trustee and each Paying Agent shall pay to the Company
upon request any money held by them for the payment of principal or interest
that remains unclaimed for two years after a right to such money has matured;
PROVIDED, HOWEVER, that the Trustee or such Paying Agent, before being required
to make any such payment, may at the expense of the Company cause to be mailed
to each Holder entitled to such money notice that (x) such money remains
unclaimed and (y) after a date specified therein, which shall be at least 30
days from the date of such mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, Holders
entitled to money must look to the Company for payment as general creditors.
SECTION 10.4 REINSTATEMENT
If the Trustee or any Paying Agent is unable to apply any
money in accordance with Section 10.2 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, then the
Company's obligations under
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this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 10.1 until such time as the Trustee or
such Paying Agent is permitted to apply all such money in accordance with
Section 10.2; PROVIDED, HOWEVER, that if the Company has made any payment of the
principal of or interest on any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive any such payment from the money held by the Trustee
or such Paying Agent.
ARTICLE 11
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 11.1 WITHOUT CONSENT OF HOLDERS
The Company and the Trustee may amend or supplement this
Indenture or the Securities without notice to or consent of any Securityholder:
(a) to comply with Sections 4.11 and 7.1;
(b) to provide for uncertificated Securities in addition to or
in place of certificated Securities (provided that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Code, or in
a manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code);
(c) to comply with the provisions of the TIA;
(d) to comply with any requirements of the SEC in connection
with qualifying, or maintaining qualification of this Indenture under the TIA;
(e) to appoint a successor Trustee;
(f) to cure any ambiguity, defect or inconsistency;
(g) to make any other change that does not adversely affect
the rights of any Securityholder; or
(h) to provide for the issuance of Add On Securities under the
conditions specified in Section 2.15.
SECTION 11.2 WITH CONSENT OF HOLDERS
The Company and the Trustee may amend or supplement this
Indenture or the Securities with the written consent of the Holders of at least
a majority in aggregate principal amount of the Securities then outstanding. The
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding may waive compliance in a particular instance by the Company
with any provision of this Indenture or the Securities without notice to any
Securityholder. However, notwithstanding the foregoing but subject to Section
11.4, without the written consent of each Securityholder affected, an amendment,
supplement or waiver, including a waiver pursuant to Section 8.4, may not:
(a) change the stated maturity of the principal of, or
interest on, any Security;
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(b) reduce the principal amount of, or any premium or interest
on, any Security;
(c) reduce the amount of principal payable upon acceleration
of the maturity of any Security;
(d) change the place or currency of payment of principal of,
or any premium or interest on, any Security;
(e) impair the right to institute suit for the enforcement of
any payment on, or with respect to, any Security;
(f) modify the subordination provisions of Article 5 in a
manner materially adverse to the Holders of Securities;
(g) adversely affect the right of Holders to convert
Securities other than as provided in or under Article 4 of this Indenture;
(h) reduce the percentage of the aggregate principal amount of
the outstanding Securities whose Holders must consent to a modification or
amendment of this Indenture; and
(i) modify any of the provisions of this Section or Section
8.4, except to increase any such percentage or to provide that specified
additional provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Security affected thereby.
It shall not be necessary for the consent of the Holders under
this Section 11.2 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
11.2 becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amendment, supplement or
waiver. An amendment or supplement under this Section 11.2 or under Section 11.1
may not make any change that adversely affects the rights under Article 5 of any
holder of an issue of Senior Indebtedness unless the holders of that issue,
pursuant to its terms, consent to the change.
SECTION 11.3 COMPLIANCE WITH TRUST INDENTURE ACT
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as in effect at the date of such amendment
or supplement.
SECTION 11.4 REVOCATION AND EFFECT OF CONSENTS
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to its Security or portion of a Security if the Trustee receives
the notice of revocation before the date the amendment, supplement or waiver
becomes effective.
-59-
After an amendment, supplement or waiver becomes effective, it
shall bind every Securityholder, unless it makes a change described in any of
clauses (a) through (i) of Section 11.2. In that case the amendment, supplement
or waiver shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security.
SECTION 11.5 NOTATION ON OR EXCHANGE OF SECURITIES
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security about
the changed terms and return it to the Holder. Alternatively, if the Company or
the Trustee so determines, the Company in exchange for the Security shall issue
and the Trustee shall authenticate a new Security that reflects the changed
terms.
SECTION 11.6 TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 11 if the amendment or supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, in its sole discretion,
but need not sign it. In signing or refusing to sign such amendment or
supplemental indenture, the Trustee shall be entitled to receive and, subject to
Section 9.1, shall be fully protected in relying upon, an Opinion of Counsel
stating that such amendment or supplemental indenture is authorized or permitted
by this Indenture. The Company may not sign an amendment or supplemental
indenture until the Board of Directors approves it, which approval shall be
confirmed by an Officers' Certificate of the Company to such effect.
ARTICLE 12
MISCELLANEOUS
SECTION 12.1 TRUST INDENTURE ACT CONTROLS
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by any of Sections 310 to 317, inclusive, of
the TIA through operation of Section 318(c) thereof, such imposed duties shall
control.
SECTION 12.2 NOTICES
Any notice, request or communication shall be given in writing
and delivered in person, by telecopier, overnight courier guaranteed next day
delivery, or mailed by first-class mail, postage prepaid, addressed as follows:
If to the Company:
ChipPAC, Inc.
00000 Xxxx Xxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
-60-
with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to the Trustee:
Firstar Bank, N.A.
000 Xxxx Xxxxx Xxxxxx
Xx. Xxxx, XX 00000
Attention: Corporate Trust Department
Facsimile: (000) 000-0000
Such notices or communications shall be effective when
received.
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder shall
be mailed by first-class mail to it at its address shown on the register kept by
the Primary Registrar.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication to a Securityholder is mailed in
the manner provided above, it is duly given, whether or not the addressee
receives it.
SECTION 12.3 COMMUNICATIONS BY HOLDERS WITH OTHER HOLDERS
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture or
the Securities. The Company, the Trustee, the Registrar, the Primary Registrar
and any other person shall have the protection of TIA Section 312(c).
SECTION 12.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT
(a) Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall furnish to
the Trustee at the request of the Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent (including any covenants,
compliance with which constitutes a condition precedent), if any, provided
for in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent (including any covenants,
compliance with which constitutes a condition precedent) have been complied
with.
-61-
(b) Each Officers' Certificate and Opinion of Counsel 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 statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or
she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of
such person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel may
rely on an Officers' Certificate or certificates of public officials.
SECTION 12.5 RECORD DATE FOR VOTE OR CONSENT OF SECURITYHOLDERS
The Company (or, in the event deposits have been made pursuant
to Section 10.1, the Trustee) may set a record date for purposes of determining
the identity of Holders entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture, which record date shall
not be more than thirty (30) days prior to the date of the commencement of
solicitation of such action. Notwithstanding the provisions of Section 11.4, if
a record date is fixed, those persons who were Holders of Securities at the
close of business on such record date (or their duly designated proxies), and
only those persons, shall be entitled to take such action by vote or consent or
to revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date.
SECTION 12.6 RULES BY TRUSTEE, PAYING AGENT, REGISTRAR
AND CONVERSION AGENT
The Trustee may make reasonable rules (not inconsistent with
the terms of this Indenture) for action by or at a meeting of Holders. Any
Registrar, Paying Agent or Conversion Agent may make reasonable rules for its
functions.
SECTION 12.7 LEGAL HOLIDAYS
A "Legal Holiday" is a Saturday, Sunday or a day on which
state or federally chartered banking institutions in New York, New York and the
state in which the Corporate Trust Office is located are not required to be
open. If a payment date is a Legal Holiday, payment shall be made on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record
shall not be affected.
SECTION 12.8 GOVERNING LAW
This Indenture and the Securities shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of laws.
-62-
SECTION 12.9 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or a Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 12.10 NO RECOURSE AGAINST OTHERS
All liability described in paragraph 18 of the Securities of
any director, officer, employee or shareholder, as such, of the Company is
waived and released.
SECTION 12.11 SUCCESSORS
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 12.12 MULTIPLE COUNTERPARTS.
The parties may sign multiple counterparts of this Indenture.
Each signed counterpart shall be deemed an original, but all of them together
represent the same agreement.
SECTION 12.13 SEPARABILITY
In case any provisions in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 12.14 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference sheet and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 12.15 IMPROPER PAYMENTS
Each Holder, by acceptance of its Security, agrees with the
Company and with each other Holder that in the event that notwithstanding the
provisions of this Indenture, it receives any payment or distribution in respect
of its Security contrary to the provisions of this Indenture, such payment or
distribution shall be received and held in trust for the benefit of, and shall
upon demand of the Company or the Trustee be forthwith paid over and delivered
to, the Trustee, which shall pay and deliver such amount to the Persons then
entitled thereto in accordance with this Indenture.
SIGNATURE PAGE FOLLOWS
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands as of the date and year first above written.
CHIPPAC, INC.
By:
-------------------------------------------
Name:
Title:
FIRSTAR BANK, N.A.,
as Trustee
By:
------------------------------------------
Name:
Title:
S-1
EXHIBIT A
[FORM OF FACE OF SECURITY]
[Unless this certificate is presented by an authorized
representative of the Depository Trust Company to the Company or its agent for
registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or in such other name as is requested by an
authorized representative of the Depository Trust Company (and any payment
hereon is made to Cede & Co. or to such other entity as is requested by an
authorized representative of the depository trust company), any transfer, pledge
or other use hereof for value or otherwise by or to any person is wrongful since
the registered owner hereof, Cede & Co., has an interest herein. This security
is a Global Security within the meaning of the Indenture hereinafter referred to
and is registered in the name of a depositary or a nominee thereof. This
security is exchangeable for securities registered in the name of a person other
than the depositary or its nominee only in the limited circumstances described
in the Indenture and, unless and until it is exchanged in whole or in part for
securities in definitive form, this security may not be transferred except as a
whole by the depositary to a nominee of the depositary or by a nominee of the
depositary to the depositary or another nominee of the depositary or by the
depositary or any such nominee to a successor depositary or a nominee of such
successor depositary.](1)
[This security (or its predecessor) was originally issued in a
transaction exempt from registration under the United States Securities Act of
1933, as amended (the "Securities Act"), and this security and the shares of
common stock issuable upon conversion thereof may not be offered, sold or
otherwise transferred in the absence of such registration or an applicable
exemption therefrom. Each purchaser of this security is hereby notified that the
seller of this security may be relying on the exemption from the provisions of
Section 5 of the Securities Act provided by Rule 144A thereunder.](2)
[The holder of this security agrees for the benefit of the
company that (a) this security and the shares of common stock issuable upon
conversion thereof may be offered, resold, pledged or otherwise transferred,
only [(I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A,] (ii) outside the
United States in an offshore transaction in accordance with Rule 904 under the
Securities Act, (iii) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available) or (iv) pursuant
to an effective registration statement under the Securities Act, in each of
cases (i) through (iv) in accordance with any applicable securities laws of any
state of the United States, and (b) the holder will, and each subsequent holder
is required to, notify any purchaser of this security from it of the resale
restrictions referred to in (a) above. In any case, the holder hereof will not,
directly or indirectly, engage in any hedging transactions with regard to this
security except as permitted under the Securities Act.(2)
[The holder of this security is entitled to the benefits of a
Registration Rights Agreement (as such term is defined in the Indenture referred
to on the reverse hereof) and, by its acceptance hereof, agrees to be bound by
and to comply with the provisions of such Registration Rights Agreement.](2)
-----------------------
(1) These paragraphs should be included only if the Security is a Global
Security.
(2) These paragraphs to be included only if the Security is a Transfer
Restricted Security.
A-1
This security may not be sold or transferred to, and each
purchaser by its purchase of this security shall be deemed to have represented
and covenanted that it is not acquiring this security for or on behalf of, and
will not transfer this security to, any pension or welfare plan as defined in
Section 3(1) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") except that such purchase for or on behalf of a pension or welfare
plan shall be permitted:
(I) TO THE EXTENT SUCH PURCHASE IS MADE BY OR ON BEHALF OF A
BANK COLLECTIVE INVESTMENT FUND MAINTAINED BY THE PURCHASER IN WHICH NO
PLAN (TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME EMPLOYER OR
EMPLOYEE ORGANIZATION) HAS AN INTEREST IN EXCESS OF 10% OF THE TOTAL ASSETS
IN SUCH COLLECTIVE INVESTMENT FUND, AND THE OTHER APPLICABLE CONDITIONS OF
PROHIBITED TRANSACTION CLASS EXEMPTION 91-38 ISSUED BY THE DEPARTMENT OF
LABOR ARE SATISFIED;
(II) TO THE EXTENT SUCH PURCHASE IS MADE BY OR ON BEHALF OF AN
INSURANCE COMPANY POOLED SEPARATE ACCOUNT MAINTAINED BY THE PURCHASER IN
WHICH, AT ANY TIME WHILE THESE SECURITIES ARE OUTSTANDING, NO PLAN
(TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME EMPLOYER OR EMPLOYEE
ORGANIZATION) HAS AN INTEREST IN EXCESS OF 10% OF THE TOTAL OF ALL ASSETS
IN SUCH POOLED SEPARATE ACCOUNT, AND THE OTHER APPLICABLE CONDITIONS OF
PROHIBITED TRANSACTION CLASS EXEMPTION 90-1 ISSUED BY THE DEPARTMENT OF
LABOR ARE SATISFIED;
(III) TO THE EXTENT SUCH PURCHASE IS MADE ON BEHALF OF A PLAN
BY (A) AN INVESTMENT ADVISER REGISTERED UNDER THE INVESTMENT ADVISERS ACT
OF 1940, AS AMENDED (THE "1940 ACT"), THAT HAD AS OF THE LAST DAY OF ITS
MOST RECENT FISCAL YEAR TOTAL ASSETS UNDER ITS MANAGEMENT AND CONTROL IN
EXCESS OF $50.0 MILLION AND HAD STOCKHOLDERS' OR PARTNERS' EQUITY IN EXCESS
OF $750,000, AS SHOWN IN ITS MOST RECENT BALANCE SHEET PREPARED IN
ACCORDANCE WITH GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, OR (B) A BANK AS
DEFINED IN SECTION 202(A)(2) OF THE 1940 ACT WITH EQUITY CAPITAL IN EXCESS
OF $1.0 MILLION AS OF THE LAST DAY OF ITS MOST RECENT FISCAL YEAR, OR (C)
AN INSURANCE COMPANY WHICH IS QUALIFIED UNDER THE LAWS OF MORE THAN ONE
STATE TO MANAGE, ACQUIRE OR DISPOSE OF ANY ASSETS OF A PENSION OR WELFARE
PLAN, WHICH INSURANCE COMPANY HAS AS OF THE LAST DAY OF ITS MOST RECENT
FISCAL YEAR, NET WORTH IN EXCESS OF $1.0 MILLION AND WHICH IS SUBJECT TO
SUPERVISION AND EXAMINATION BY A STATE AUTHORITY HAVING SUPERVISION OVER
INSURANCE COMPANIES AND, IN ANY CASE, SUCH INVESTMENT ADVISER, BANK OR
INSURANCE COMPANY IS OTHERWISE A QUALIFIED PROFESSIONAL ASSET MANAGER, AS
SUCH TERM IS USED IN PROHIBITED TRANSACTION CLASS EXEMPTION 84-14 ISSUED BY
THE DEPARTMENT OF LABOR, AND THE ASSETS OF SUCH PLAN WHEN COMBINED WITH THE
ASSETS OF OTHER PLANS ESTABLISHED OR MAINTAINED BY THE SAME EMPLOYER (OR
AFFILIATE THEREOF) OR EMPLOYEE ORGANIZATION AND MANAGED BY SUCH INVESTMENT
ADVISER, BANK OR INSURANCE COMPANY, DO NOT REPRESENT MORE THAN 20% OF THE
TOTAL CLIENT ASSETS MANAGED BY SUCH INVESTMENT ADVISER, BANK OR INSURANCE
COMPANY AT THE TIME OF THE TRANSACTION, AND THE OTHER APPLICABLE CONDITIONS
OF SUCH EXEMPTION ARE OTHERWISE SATISFIED;
(IV) TO THE EXTENT SUCH PLAN IS A GOVERNMENTAL PLAN (AS
DEFINED AS SECTION 3(33) OF ERISA) WHICH IS NOT SUBJECT TO THE PROVISIONS
OF TITLE 1 OF ERISA OR SECTION 401 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (THE "CODE");
(V) TO THE EXTENT SUCH PURCHASE IS MADE BY OR ON BEHALF OF AN
INSURANCE COMPANY USING THE ASSETS OF ITS GENERAL ACCOUNT, THE RESERVES AND
LIABILITIES FOR THE GENERAL ACCOUNT CONTRACTS HELD BY OR ON BEHALF OF ANY
PLAN, TOGETHER WITH ANY OTHER PLANS MAINTAINED BY THE SAME EMPLOYER (OR ITS
AFFILIATES) OR EMPLOYEE ORGANIZATION, DO NOT EXCEED 10% OF THE TOTAL
RESERVES AND LIABILITIES OF THE INSURANCE COMPANY GENERAL ACCOUNT
(EXCLUSIVE OF SEPARATE ACCOUNT LIABILITIES), PLUS SURPLUS AS SET FORTH IN
THE NATIONAL ASSOCIATION OF INSURANCE COMMISSIONERS ANNUAL STATEMENT FILED
WITH THE STATE OF DOMICILE OF THE INSURER, IN ACCORDANCE WITH PROHIBITED
TRANSACTION CLASS EXEMPTION 95-60, AND THE OTHER APPLICABLE CONDITIONS OF
SUCH EXEMPTION ARE OTHERWISE SATISFIED;
A-2
(VI) TO THE EXTENT PURCHASE IS MADE BY AN IN-HOUSE ASSET
MANAGER WITHIN THE MEANING OF PART IV(A) OF PROHIBITED TRANSACTION CLASS
EXEMPTION 96-23, SUCH MANAGER HAS MADE OR PROPERLY AUTHORIZED THE DECISION
FOR SUCH PLAN TO PURCHASE THIS SECURITY, UNDER CIRCUMSTANCES SUCH THAT
PROHIBITED TRANSACTION CLASS EXEMPTION 96-23 IS APPLICABLE TO THE PURCHASE
AND HOLDING OF THIS SECURITY; OR
(VII) TO THE EXTENT SUCH PURCHASE WILL NOT OTHERWISE GIVE RISE
TO A TRANSACTION DESCRIBED IN SECTION 406 OR SECTION 4975(C)(1) OF THE CODE
FOR WHICH A STATUTORY OR ADMINISTRATIVE EXEMPTION IS UNAVAILABLE.
A-3
CHIPPAC, INC.
CUSIP: _____ No. ___
8% CONVERTIBLE SUBORDINATED NOTES DUE JUNE __, 2011
ChipPAC, Inc., a Delaware corporation (the "COMPANY", which
term shall include any successor corporation under the Indenture referred to on
the reverse hereof), promises to pay to , or registered assigns, the principal
sum of Dollars ($ ) on June __, 2011 [or such greater or lesser amount as
is indicated on the Schedule of Exchanges of Securities on the other side of
this Security](3)
Interest Payment Dates: __________ and _____________, beginning , 2001
Record Dates: _____ and __________________
This Security is convertible as specified on the other side of
this Security. Additional provisions of this Security are set forth on the other
side of this Security.
SIGNATURE PAGE FOLLOWS
-----------------------
(3) This phrase should be included only if the Security is a Global Security.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
CHIPPAC, INC.
By:
---------------------------------------
Name:
Title:
Attest:
By:
-----------------------------------------------
Name:
Title:
Dated:
Trustee's Certificate of Authentication: This is one of the Securities
referred to in the within-mentioned Indenture.
FIRSTAR BANK, N.A.,
as Trustee
---------------------------------------------
Authorized Signatory
By:
A-5
[FORM OF REVERSE SIDE OF SECURITY]
CHIPPAC, INC.
8% CONVERTIBLE SUBORDINATED NOTES DUE JUNE __, 2011
1. INTEREST
ChipPAC, Inc. a Delaware corporation (the "COMPANY", which
term shall include any successor corporation under the Indenture hereinafter
referred to), promises to pay interest on the principal amount of this Security
at the rate of 8% per annum. The Company shall pay interest semiannually on June
__ and December __ of each year, commencing December __, 2001. Interest on the
Securities shall accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from June __, 2001; PROVIDED, HOWEVER,
that if there is not an existing Default in the payment of interest and if this
Security is authenticated between a record date referred to on the face hereof
and the next succeeding interest payment date, interest shall accrue from such
interest payment date. Interest will be computed on the basis of a 360-day year
of twelve 30-day months. Any reference herein to interest accrued or payable as
of any date shall include any Additional Interest accrued or payable on such
date as provided in the Registration Rights Agreement.
2. METHOD OF PAYMENT
The Company shall pay interest on this Security (except
defaulted interest) to the person who is the Holder of this Security at the
close of business on June 1 or December 1, as the case may be, next preceding
the related interest payment date. The Holder must surrender this Security to a
Paying Agent to collect payment of principal. The Company will pay principal and
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. The Company may, however, pay
principal and interest in respect of any Certificated Security by check or wire
payable in such money; PROVIDED, HOWEVER, that a Holder with an aggregate
principal amount in excess of $2,000,000 will be paid by wire transfer in
immediately available funds at the election of such Holder. The Company may mail
an interest check to the Holder's registered address. Notwithstanding the
foregoing, so long as this Security is registered in the name of a Depositary or
its nominee, all payments hereon shall be made by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
3. PAYING AGENT, REGISTRAR AND CONVERSION AGENT
Initially, Firstar Bank, N.A. (the "TRUSTEE", which term shall
include any successor trustee under the Indenture hereinafter referred to) will
act as Paying Agent, Registrar, Primary Registrar and Conversion Agent. The
Company may change any Paying Agent, Registrar or Conversion Agent without
notice to the Holder. The Company or any of its Subsidiaries may, subject to
certain limitations set forth in the Indenture, act as Paying Agent or
Registrar.
4. INDENTURE, LIMITATIONS
This Security is one of a duly authorized issue of Securities
of the Company designated as its 8% Convertible Subordinated Notes Due June __,
2011 (the "SECURITIES"), issued under an Indenture dated as of June __, 2001
(together with any supplemental indentures thereto, the "INDENTURE"), between
the Company and the Trustee. Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of this Security include
those stated in the Indenture and those required by or made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended, as in
effect on the date of the Indenture. This
A-6
Security is subject to all such terms, and the Holder of this Security is
referred to the Indenture and said Act for a statement of them. The Securities
are subordinated unsecured obligations of the Company. Subject to the conditions
set forth in Section 2.15 of the Indenture, the Company may issue additional
Securities ("ADD ON SECURITIES"). The Indenture does not limit other debt of the
Company, secured or unsecured, including Senior Indebtedness.
5. PROVISIONAL AND OPTIONAL REDEMPTION
(a) The Company may redeem any portion of the
Securities at any time prior to June __, 2004 (a "PROVISIONAL REDEMPTION"), upon
giving notice as set forth in Section 6, at a redemption price equal to $1,000
per $1,000 principal amount of the Securities redeemed plus accrued and unpaid
interest, if any (such amount, the "PROVISIONAL REDEMPTION PRICE"), to but
excluding the date of redemption (the "PROVISIONAL REDEMPTION DATE") if (1) the
Closing Price of the Common Stock has exceeded 150% of the Conversion Price for
at least 20 Trading Days within a period of any 30 consecutive Trading Days
ending on the Trading Day prior to the date of mailing of the notice of
Provisional Redemption (the "NOTICE DATE"), and (2) a shelf registration
statement covering resales of the Securities and the Common Stock issuable upon
conversion thereof is effective and available for use and is expected to remain
effective and available for use for the 30 days following the Provisional
Redemption Date unless registration is no longer required.
(b) Except as set forth in clause (a) of this Section
5, the Company shall not have the option to redeem the Securities pursuant to
this Section 5 prior to June __, 2004. Thereafter, the Company shall have the
option to redeem any portion of the Securities (an "OPTIONAL REDEMPTION") upon
giving notice as set forth in Section 6. The Optional Redemption Prices
(expressed as percentages of the principal amount) are as follows for Securities
redeemed during the periods set forth below:
PERIOD REDEMPTION PRICE
------ ----------------
Beginning on ____ __, 2004 and ending on ____ __, 2005...... 104.00%
Beginning on ____ __, 2005 and ending on ____ __, 2006...... 103.33%
Beginning on ____ __, 2006 and ending on ____ __, 2007...... 102.67%
Beginning on ____ __, 2007 and ending on ____ __, 2008...... 102.00%
Beginning on ____ __, 2008 and ending on ____ __, 2009...... 101.33%
Beginning on ____ __, 2009 and ending on ____ __, 2010...... 100.67%
Beginning on ____ __, 2010 and thereafter .................. 100.00%
in each case together with accrued interest up to but not including the date of
redemption (the "OPTIONAL REDEMPTION DATE"); PROVIDED that if the Optional
Redemption Date falls after an interest payment record date and on or before an
interest payment date, then the interest payment will be payable to the Holders
in whose names the Securities are registered at the close of business on the
relevant record date for payment of such interest.
6. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at
least 20 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at its registered address. Securities in
denominations larger than $1,000 may be redeemed in part, but only in whole
multiples of $1,000. On and after the Redemption Date, subject to the deposit
with the Paying Agent of funds sufficient to pay the Redemption Price plus
accrued interest, if any, accrued to, but excluding, the Redemption Date,
interest shall cease to accrue on Securities or portions of them called for
redemption.
A-7
7. PURCHASE OF SECURITIES AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase all
or any part specified by the Holder (so long as the principal amount of such
part is $1,000 or an integral multiple of $1,000 in excess thereof) of the
Securities held by such Holder on the date that is not less than 20 nor more
than 30 Business Days after the date on which the Company provides Holders
notice of the occurrence of a Change in Control (or, if the Company has not
provided such, 40 Business Days following the occurrence of a Change of
Control), at a purchase price equal to 100% of the principal amount thereof
together with accrued interest up to, but excluding, the Change in Control
Purchase Date. The Holder shall have the right to withdraw any Change in Control
Purchase Notice (in whole or in a portion thereof that is $1,000 or an integral
multiple of $1,000 in excess thereof) at any time prior to the close of business
on the Business Day next preceding the Change in Control Purchase Date by
delivering a written notice of withdrawal to the Paying Agent in accordance with
the terms of the Indenture.
8. CONVERSION
A Holder of a Security may convert the principal amount of
such Security (or any portion thereof equal to $1,000 or any integral multiple
of $1,000 in excess thereof) into shares of Common Stock at any time prior to
the close of business on June __, 2011; PROVIDED, HOWEVER, that if the Security
is called for redemption or subject to purchase upon a Change in Control, the
conversion right will terminate at the close of business on the Business Day
immediately preceding the Redemption Date or the Change in Control Purchase
Date, as the case may be, for such Security or such earlier date as the Holder
presents such Security for redemption or purchase (unless the Company shall
default in making the redemption payment or Change in Control Purchase Price, as
the case may be, when due, in which case the conversion right shall terminate at
the close of business on the date such default is cured and such Security is
redeemed or purchased). The initial Conversion Price is $9.96 per share, subject
to adjustment under certain circumstances. The number of shares of Common Stock
issuable upon conversion of a Security is determined by dividing the principal
amount of the Security or portion thereof converted by the Conversion Price in
effect on the Conversion Date. No fractional shares will be issued upon
conversion; in lieu thereof, an amount will be paid in cash based upon the
Closing Price (as defined in the Indenture) of the Common Stock on the Trading
Day immediately prior to the Conversion Date. To convert a Security, a Holder
must (a) complete and manually sign the conversion notice set forth below and
deliver such notice to a Conversion Agent, (b) surrender the Security to a
Conversion Agent, (c) furnish appropriate endorsements and transfer documents if
required by a Registrar or a Conversion Agent, and (d) pay any transfer or
similar tax, if required. Securities so surrendered for conversion (in whole or
in part) during the period from the close of business on any regular record date
to the opening of business on the next succeeding interest payment date
(excluding Securities or portions thereof which are either (i) called for
redemption or (ii) subject to purchase following a Change in Control, in either
case, on a date during the period beginning at the close of business on a
regular record date and ending at the opening of business on the first Business
Day after the next succeeding interest payment date, or if such interest payment
date is not a Business Day, the second such Business Day) shall also be
accompanied by payment in funds acceptable to the Company of an amount equal to
the interest payable on such interest payment date on the principal amount of
such Security then being converted, and such interest shall be payable to such
registered Holder notwithstanding the conversion of such Security, subject to
the provisions of this Indenture relating to the payment of defaulted interest
by the Company. Except as otherwise provided in this paragraph, no payment or
adjustment will be made for accrued interest on a converted Security. If the
Company defaults in the payment of interest payable on such interest payment
date, the Company shall promptly repay such funds to such Holder. A Holder may
convert a portion of a Security equal to $1,000 or any integral multiple
thereof. A Security in respect of which a Holder had delivered a Change in
Control Purchase Notice exercising the option of such Holder to require the
Company to purchase such Security may be converted only if the Change in Control
Purchase Notice is withdrawn in accordance with the terms of the Indenture.
A-8
9. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the Business Day immediately
preceding the Redemption Date, may be deemed to be purchased from the Holders of
such Securities at an amount not less than the Redemption Price, together with
accrued interest, if any, to, but not including, the Redemption Date, by one or
more investment bankers or other purchasers who may agree with the Company to
purchase such Securities from the Holders, to convert them into Common Stock of
the Company and to make payment for such Securities to the Paying Agent in trust
for such Holders.
10. SUBORDINATION
The indebtedness evidenced by the Securities is, to the extent
and in the manner provided in the Indenture, subordinate and junior in right of
payment to the prior payment in full of all Senior Indebtedness of the Company.
Any Holder by accepting this Security agrees to and shall be bound by such
subordination provisions and authorizes the Trustee to give them effect. In
addition to all other rights of Senior Indebtedness described in the Indenture,
the Senior Indebtedness shall continue to be Senior Indebtedness and entitled to
the benefits of the subordination provisions irrespective of any amendment,
modification or waiver of any terms of any instrument relating to the Senior
Indebtedness or any extension or renewal of the Senior Indebtedness.
11. DENOMINATIONS, TRANSFER, EXCHANGE
The Securities are in registered form without coupons in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of or exchange Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes or other governmental
charges that may be imposed in relation thereto by law or permitted by the
Indenture.
12. PERSONS DEEMED OWNERS
The Holder of a Security may be treated as the owner of it for
all purposes.
13. UNCLAIMED MONEY
If money for the payment of principal or interest remains
unclaimed for two years, the Trustee or Paying Agent will pay the money back to
the Company at its written request. After that, Holders entitled to money must
look to the Company for payment.
14. AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, the Indenture or the Securities
may be amended or supplemented with the consent of the Holders of at least a
majority in principal amount of the Securities then outstanding, and an existing
Default or Event of Default and its consequence or compliance with any provision
of the Indenture or the Securities may be waived in a particular instance with
the consent of the Holders of a majority in principal amount of the Securities
then outstanding. Without the consent of or notice to any Holder, the Company
and the Trustee may amend or supplement the Indenture or the Securities to,
among other things, cure any ambiguity, defect or inconsistency or make any
other change that does not adversely affect the rights of any Holder.
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15. SUCCESSOR CORPORATION
When a successor corporation assumes all the obligations of
its predecessor under the Securities and the Indenture in accordance with the
terms and conditions of the Indenture, the predecessor corporation will (except
in certain circumstances specified in the Indenture) be released from those
obligations.
16. DEFAULTS AND REMEDIES
Under the Indenture, an Event of Default includes: (i) default
for 30 days in payment of any interest on any Securities; (ii) default in
payment of any principal (including, without limitation, any premium, if any) on
the Securities when due; (iii) failure by the Company for 60 days after notice
to it to comply with any of its other agreements contained in the Indenture or
the Securities; (iv) failure by the Company to give notice to the Trustee and
Holders of a Change in Control in accordance with the Indenture; and (v) certain
events of bankruptcy, insolvency or reorganization of the Company. If an Event
of Default (other than as a result of certain events of bankruptcy, insolvency
or reorganization of the Company) occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the Securities then outstanding
may declare all unpaid principal to the date of acceleration on the Securities
then outstanding to be due and payable immediately, all as and to the extent
provided in the Indenture. If an Event of Default occurs as a result of certain
events of bankruptcy, insolvency or reorganization of the Company, unpaid
principal of the Securities then outstanding shall become due and payable
immediately without any declaration or other act on the part of the Trustee or
any Holder, all as and to the extent provided in the Indenture. Holders may not
enforce the Indenture or the Securities except as provided in the Indenture. The
Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Securities. Subject to certain limitations, Holders of a
majority in principal amount of the Securities then outstanding may direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default (except a Default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company is required to file periodic reports with the Trustee as
to the absence of Default.
17. TRUSTEE DEALINGS WITH THE COMPANY
Firstar Bank, N.A., the Trustee under the Indenture, in its
individual or any other capacity, may make loans to, accept deposits from and
perform services for the Company or an Affiliate of the Company, and may
otherwise deal with the Company or an Affiliate of the Company, as if it were
not the Trustee.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture nor for any claim based on, in respect of or by
reason of such obligations or their creation. The Holder of this Security by
accepting this Security waives and releases all such liability. The waiver and
release are part of the consideration for the issuance of this Security.
19. AUTHENTICATION
This Security shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this Security.
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20. ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by
the entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and UGMA (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Security but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
21. INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this
Security and the Indenture, the provisions of the Indenture shall control. This
Security shall be governed by, and construed in accordance with, the laws of the
State of New York, without regard to principles of conflicts of law.
The Company will furnish to any Holder, upon written request
and without charge, a copy of the Indenture. Requests may be made to: ChipPAC,
Inc., 00000 Xxxx Xxxx, Xxxxxxx, XX 00000, Attention: Xxxxxx Xxxxxxxx.
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ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
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(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
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--------------------------------------------------------------------------------
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(Print or type assignee's name, address and zip code)
and irrevocably appoint
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agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him or her.
Your Signature:
Date:
-------------------------------- --------------------------------------
(Sign exactly as your name appears on
the other side of this Security)
*Signature guaranteed by:
By:
--------------------------------------------------
* Signature(s) must be guaranteed by a qualified guarantor
institution with membership in an approved signature
guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934.
CONVERSION NOTICE
To convert this Security into Common Stock of the Company,
check the box: [ ]
To convert only part of this Security, state the principal
amount to be converted (must be $1,000 or a multiple of $1,000): $____________.
If you want the stock certificate made out in another person's
name, fill in the form below:
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(Insert assignee's soc. sec. or tax I.D. no.)
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--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
Your Signature:
Date:
--------------------------------- --------------------------------------
(Sign exactly as your name appears on
the other side of this Security)
*Signature guaranteed by:
By:
--------------------------------------------------
* Signature(s) must be guaranteed by a qualified guarantor
institution with membership in an approved signature
guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934.
OPTION TO ELECT REPURCHASE
UPON A CHANGE OF CONTROL
To: ChipPAC, Inc.
The undersigned registered owner of this Security hereby
irrevocably acknowledges receipt of a notice from ChipPAC, Inc. (the "COMPANY")
as to the occurrence of a Change in Control with respect to the Company and
requests and instructs the Company to redeem the entire principal amount of this
Security, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms of the Indenture
referred to in this Security at the Change in Control Purchase Price, together
with accrued interest to, but excluding, such date, to the registered Holder
hereof.
Date:
----------------------------- ------------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
qualified guarantor institution with
membership in an approved signature
guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
------------------------------------------
Signature Guaranty
Principal amount to be redeemed(in an integral multiple
of $1,000, if less than all):
-----------------------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without
alteration or any change whatsoever.
SCHEDULE OF EXCHANGES OF SECURITIES(4)
The following exchanges, redemptions, repurchases or
conversions of a part of this global Security have been made:
Principal Amount of
this Global Security
Following Such Amount of Decrease in Amount of Increase in
Decrease Date of Exchange Authorized Signatory of Principal Amount of this Principal Amount of this
(or Increase) Securities Custodian Global Security Global Security
-------------------------- ----------------------- ------------------------ ------------------------
-----------------------
(4) This schedule should be included only if the Security is a Global Security.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF TRANSFER RESTRICTED SECURITIES(5)
Re: 8% Convertible Subordinated Securities Due June __, 2011
(the "SECURITIES") of ChipPAC, Inc.
This certificate relates to $_______ principal amount of
Securities owned in (check applicable box)
[ ] book-entry or [ ] definitive form by ________________ (the
"TRANSFEROR").
The Transferor has requested a Registrar or the Trustee to
exchange or register the transfer of such Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with transfer restrictions relating to the Securities as provided in Section
2.12 of the Indenture, dated as of June __, 2001, between ChipPAC, Inc. and
Firstar Bank, N.A. (the "INDENTURE"), and the transfer of such Security is being
made pursuant to an effective registration statement under the Securities Act of
1933, as amended (the "SECURITIES ACT") (check applicable box) or the transfer
or exchange, as the case may be, of such Security does not require registration
under the Securities Act because (check applicable box):
[ ] Such Security is being transferred pursuant to an
effective registration statement under the Securities Act.
[ ] Such Security is being acquired for the Transferor's own
account, without transfer.
[ ] Such Security is being transferred to the Company or a
Subsidiary (as defined in the Indenture) of the Company.
[ ] Such Security is being transferred to a person the
Transferor reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A or any successor provision thereto ("RULE 144A") under the
Securities Act) that is purchasing for its own account or for the account of a
"qualified institutional buyer", in each case to whom notice has been given that
the transfer is being made in reliance on such Rule 144A, and in each case in
reliance on Rule 144A.
[ ] Such Security is being transferred pursuant to and in
compliance with an exemption from the registration requirements under the
Securities Act in accordance with Rule 144 (or any successor thereto) ("RULE
144") under the Securities Act.
[ ] Such Security is being transferred pursuant to and in
compliance with an exemption from the registration requirements of the
Securities Act (other than an exemption referred to above) and as a result of
which such Security will, upon such transfer, cease to be a "restricted
security" within the meaning of Rule 144 under the Securities Act.
-----------------------
(5) This certificate should only be included if this Security is a Transfer
Restricted Security.
-2-
The Transferor acknowledges and agrees that, if the transferee
will hold any such Securities in the form of beneficial interests in a global
Security which is a "restricted security" within the meaning of Rule 144 under
the Securities Act, then such transfer can only be made pursuant to Rule 144A
under the Securities Act and such transferee must be a "qualified institutional
buyer" (as defined in Rule 144A).
Date:
----------------------------- ----------------------------------------
(Insert Name of Transferor)
