Exhibit 4.1
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INVERNESS MEDICAL INNOVATIONS, INC.
as Issuer
and
U.S Bank Trust National Association-
as Trustee
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INDENTURE
Dated as of May 14, 2007
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3 % Convertible Senior Subordinated Notes due 2016
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TABLE OF CONTENTS
PAGE
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ARTICLE 1 Definitions and Other Provisions of General Application........ 1
Section 1.01 Definitions............................................. 1
Section 1.02 Compliance Certificates and Opinions.................... 13
Section 1.03 Form of Documents Delivered to Trustee.................. 13
Section 1.04 Acts of Holders; Record Dates........................... 14
Section 1.05 Notices, Etc., to Trustee and Company................... 15
Section 1.06 Notice to Holders; Waiver............................... 15
Section 1.07 Conflict with Trust Indenture Act....................... 15
Section 1.08 Effect of Headings and Table of Contents................ 15
Section 1.09 Severability Clause..................................... 16
Section 1.10 Benefits of Indenture................................... 16
Section 1.11 Governing Law........................................... 16
Section 1.12 No Recourse Against Others.............................. 16
ARTICLE 2 Security Forms................................................. 16
Section 2.01 Forms Generally......................................... 16
Section 2.02 Form of Face of Security................................ 16
Section 2.03 Form of Reverse of Security............................. 19
Section 2.04 Form of Trustee's Certificate of Authentication......... 27
Section 2.05 Legend on Restricted Securities......................... 27
ARTICLE 3 The Securities................................................. 27
Section 3.01 Title and Terms; Payments............................... 27
Section 3.02 Ranking................................................. 28
Section 3.03 Denominations........................................... 28
Section 3.04 Execution, Authentication, Delivery and Dating.......... 28
Section 3.05 Temporary Securities.................................... 28
Section 3.06 Registration; Registration of Transfer and Exchange;
Restrictions on Transfer................................ 29
Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities........ 31
Section 3.08 Persons Deemed Owners................................... 31
Section 3.09 Book-Entry Provisions for Global Securities............. 32
Section 3.10 Cancellation and Transfer Provisions.................... 33
Section 3.11 CUSIP Numbers........................................... 34
ARTICLE 4 Particular Covenants of the Company............................ 34
Section 4.01 Payment of Principal and Interest....................... 34
Section 4.02 Maintenance of Office or Agency......................... 35
Section 4.03 Provisions as to Paying Agent........................... 35
Section 4.04 Rule 144A Information Requirement....................... 36
Section 4.05 Resale of Certain Securities............................ 36
Section 4.06 Commission Filings...................................... 37
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Section 4.07 Book-Entry System....................................... 37
Section 4.08 Additional Interest under the Registration Rights
Agreement............................................... 37
Section 4.09 Compliance Certificate.................................. 37
ARTICLE 5 Fundamental Change, Termination of Trading and Purchases
Thereupon............................................... 38
Section 5.01 Purchase at Option of Holders Upon a Fundamental
Change or Termination of Trading........................ 38
Section 5.02 Effect of Repurchase Notice............................. 40
Section 5.03 Withdrawal of Repurchase Notice......................... 40
Section 5.04 Deposit of Repurchase Price............................. 41
Section 5.05 Securities Purchased in Whole or in Part................ 41
Section 5.06 Covenant to Comply With Securities Laws Upon Purchase
of Securities........................................... 42
Section 5.07 Repayment to the Company................................ 42
ARTICLE 6 Conversion..................................................... 45
Section 6.01 Conversion Events....................................... 45
Section 6.02 Conversion Procedure.................................... 45
Section 6.03 Payments Upon Conversion................................ 47
Section 6.04 Adjustment of Conversion Rate........................... 48
Section 6.05 Adjustments of Average Prices........................... 55
Section 6.06 Effect of Recapitalization, Reclassification,
Consolidation, Merger or Sale........................... 55
Section 6.07 Taxes on Shares Issued.................................. 56
Section 6.08 Reservation of Shares; Shares to be Fully Paid;
Compliance With Governmental Requirements; Listing
of Common Stock......................................... 57
Section 6.09 Responsibility of Trustee............................... 57
Section 6.10 Notice to Holders Prior to Certain Actions.............. 58
Section 6.11 Stockholder Rights Plan................................. 58
Section 6.12 Adjustment To The Conversion Rate On May 9, 2008........ 59
Section 6.13 Company Determination Final............................. 59
ARTICLE 7 Redemption of Securities....................................... 60
ARTICLE 8 Events of Default; Remedies.................................... 60
Section 8.01 Events of Default....................................... 60
Section 8.02 Acceleration of Maturity; Rescission and Annulment...... 61
Section 8.03 Collection of Indebtedness and Suits for Enforcement
by Trustee.............................................. 63
Section 8.04 Trustee May File Proofs of Claim........................ 63
Section 8.05 Application of Money and Property Collected............. 63
Section 8.06 Limitation on Suits..................................... 64
Section 8.07 Unconditional Right of Holders to Receive Payment....... 64
Section 8.08 Restoration of Rights and Remedies...................... 65
Section 8.09 Rights and Remedies Cumulative.......................... 65
Section 8.10 Delay or Omission Not Waiver............................ 65
Section 8.11 Control by Holders...................................... 65
Section 8.12 Waiver of Past Defaults................................. 65
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Section 8.13 Undertaking for Costs................................... 66
Section 8.14 Waiver of Stay or Extension Laws........................ 66
Section 8.15 Notice of Default....................................... 66
ARTICLE 9 Consolidation, Merger, Conveyance, Transfer or Lease........... 66
Section 9.01 Company May Consolidate, etc., Only on Certain Terms.... 66
Section 9.02 Successor Substituted................................... 67
ARTICLE 10 Subordination of the Securities............................... 67
Section 10.01 Agreement of Subordination.............................. 67
Section 10.02 Payments to Holders..................................... 67
Section 10.03 Subrogation of Securities............................... 70
Section 10.04 Authorization to Effect Subordination................... 71
Section 10.05 Notice to Trustee....................................... 71
Section 10.06 Trustee's Relation to Senior Indebtedness............... 72
Section 10.07 No Impairment of Subordination.......................... 72
Section 10.08 Certain Conversions Deemed Payment...................... 72
Section 10.09 Article Applicable to Paying Agents..................... 72
Section 10.10 Senior Indebtedness Entitled to Rely.................... 73
Section 10.11 Anti-Layering........................................... 73
ARTICLE 11 The Trustee................................................... 73
Section 11.01 Duties and Responsibilities of Trustee.................. 73
Section 11.02 Notice of Defaults...................................... 74
Section 11.03 Reliance on Documents, Opinions, Etc.................... 74
Section 11.04 No Responsibility for Recitals, Etc..................... 76
Section 11.05 Trustee, Paying Agents, Conversion Agents or
Registrar May Own Securities............................ 76
Section 11.06 Monies to be Held in Trust.............................. 76
Section 11.07 Compensation and Expenses of Trustee.................... 76
Section 11.08 Officers' Certificate as Evidence....................... 77
Section 11.09 Conflicting Interests of Trustee........................ 77
Section 11.10 Eligibility of Trustee.................................. 77
Section 11.11 Resignation or Removal of Trustee....................... 77
Section 11.12 Acceptance by Successor Trustee......................... 78
Section 11.13 Succession by Merger, Etc............................... 79
Section 11.14 Preferential Collection of Claims....................... 79
ARTICLE 12 Holders' Lists and Reports by Trustee......................... 80
Section 12.01 Company to Furnish Trustee Names and Addresses of
Holders................................................. 80
Section 12.02 Preservation of Information; Communications to
Holders................................................. 80
Section 12.03 Reports By Trustee...................................... 80
Section 12.04 Reports by Company...................................... 81
ARTICLE 13 Satisfaction and Discharge.................................... 81
Section 13.01 Discharge of Indenture.................................. 81
Section 13.02 Deposited Monies to be Held in Trust by Trustee......... 81
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Section 13.03 Paying Agent to Repay Monies Held....................... 82
Section 13.04 Return of Unclaimed Monies.............................. 82
Section 13.05 Reinstatement........................................... 82
ARTICLE 14 Supplemental Indentures....................................... 82
Section 14.01 Supplemental Indentures Without Consent of Holders...... 82
Section 14.02 Supplemental Indentures With Consent of Holders......... 83
Section 14.03 Execution of Supplemental Indentures.................... 84
Section 14.04 Effect of Supplemental Indentures....................... 84
Section 14.05 Conformity with Trust Indenture Act..................... 84
Section 14.06 Reference in Securities to Supplemental Indentures...... 84
Section 14.07 Notice to Holders of Supplemental Indentures............ 84
ARTICLE 15 Miscellaneous................................................. 85
Section 15.01 Communication by Holders with other Holders............. 85
Section 15.02 When Securities Are Disregarded......................... 85
Section 15.03 Rules by Trustee, Paying Agent and Security Registrar... 85
Section 15.04 Successors.............................................. 85
Section 15.05 Multiple Originals...................................... 85
Section 15.06 Qualification of Indenture.............................. 85
Section 15.07 Calculations............................................ 85
Section 15.08 Waiver of Jury Trial.................................... 86
Section 15.09 Force Majeure........................................... 86
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INDENTURE, dated as of May 14, 2007, between Inverness Medical Innovations,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware, as Issuer (the "COMPANY"), having its principal office at Two
University Office Park, 00 Xxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxxxxx 00000
and U.S. Bank Trust National Association, as Trustee (the "TRUSTEE").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the creation of an issue of 3%
Convertible Senior Subordinated Notes due 2016 (each a "SECURITY" and
collectively, the "SECURITIES") of the tenor and amount hereinafter set forth,
and to provide therefor the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid and legally binding obligations of the Company, and to make
this Indenture a valid and legally binding agreement of the Company, in
accordance with the terms of the Securities and the Indenture, have been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH, for and in consideration of the
premises and the purchases of the Securities by the Holders thereof, it is
mutually agreed, for the benefit of the Company and the equal and proportionate
benefit of all Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the terms defined in this Article 1 have the meanings assigned to
them in this Article and include the plural as well as the singular;
(ii) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(iii) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(iv) the words "herein," "hereof' and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"ACT," when used with respect to any Holder, has the meaning specified in
Section 1.04.
"ADDITIONAL INTEREST" shall mean Additional Interest as defined in the
Registration Rights Agreement.
"AFFILIATE" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct 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 MEMBERS" has the meaning specified in Section 3.09(a).
"ASSET SALE MAKE-WHOLE FUNDAMENTAL CHANGE" means a sale, transfer, lease,
conveyance or other disposition of all or substantially all of the property or
assets of the Company to any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), including any group acting for
the purpose of acquiring, holding, voting or disposing of securities within the
meaning of Rule 13d-5(b)(1) under the Exchange Act.
"BID SOLICITATION AGENT" means the Trustee or an independent nationally
recognized securities dealer selected by the Company to solicit market bid
quotations for the Securities, which shall in no event be an Affiliate of the
Company. The Bid Solicitation Agent shall initially be the Trustee.
"BOARD OF DIRECTORS" means, with respect to any Person, either the board of
directors of such Person or any duly authorized committee of that board.
"BOARD RESOLUTION" means, with respect to any Person, a copy of a
resolution certified by the Secretary or an Assistant Secretary of such Person
to have been duly adopted by the Board of Directors and to be in full force and
effect on the date of such certification, and delivered to the Trustee.
"BONDS" means those certain 8.75% senior subordinated notes due February
15, 2012 in the original principal amount of $150,000,000 issued by the Company
to certain holders thereof under that certain Indenture among the Company, the
subsidiaries of the Company named therein, as guarantors, and U.S. Bank and
Trust Company, as trustee, dated February 10, 2004.
"BUSINESS DAY" means, with respect to any Security, any day other than a
Saturday, a Sunday or a day on which the Federal Reserve Bank of New York is
closed.
"CAPITAL STOCK" means any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock and limited
liability company interests and, with respect to partnerships, partnership
interests (whether general or limited) and any other interest or participation
that confers on a Person the right to receive a share of the profits and losses
of, or distributions of assets of, such partnership.
"CODE" means the Internal Revenue Code of 1986, as amended.
"COMMISSION" means the U.S. Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
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"COMMON STOCK" means the shares of common stock, par value $0.001 per
share, of the Company as they exist on the date of this Indenture or any other
shares of Capital Stock of the Company into which the Common Stock shall be
reclassified or changed or, in the event of a merger, consolidation or other
similar transaction involving the Company that is otherwise permitted hereunder
in which the Company is not the surviving corporation, the common stock, common
equity interests, ordinary shares or depositary shares or other certificates
representing common equity interests of such surviving corporation or its direct
or indirect parent corporation.
"COMMON STOCK CHANGE MAKE-WHOLE FUNDAMENTAL CHANGE" means any transaction
or series of related transactions (other than a Listed Stock Business
Combination), in connection with which (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination, reclassification,
recapitalization, asset sale, lease of assets or otherwise) the Common Stock is
exchanged for, converted into, acquired for or constitutes solely the right to
receive other securities, other property, assets or cash.
"COMPANY" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"COMPANY REQUEST" or "COMPANY ORDER" means a written request or order
signed in the name of the Company by its Chief Executive Officer or its
President and by its Chief Financial Officer, its Treasurer or its Secretary,
and delivered to the Trustee.
"CONTINUING DIRECTOR" means a director who either was a member of the
Company's Board of Directors on the date of the Purchase Agreement or who
becomes a director of the Company subsequent to that date and whose election,
appointment or nomination for election by the Company's stockholders, is duly
approved by a majority of the continuing directors on the Board of Directors of
the Company at the time of such approval, either by a specific vote or by
approval of the proxy statement issued by the Company on behalf of the entire
Board of Directors of the Company in which such individual is named as nominee
for director.
"CONVERSION AGENT" means the Trustee or such other office or agency
designated by the Company where Securities may be presented for conversion.
"CONVERSION DATE" has the meaning specified in Section 6.02(b).
"CONVERSION NOTICE" shall have the meaning specified in Section 6.02(b).
"CONVERSION PRICE" means, in respect of each Security, as of any date,
$1000 divided by the Conversion Rate in effect on such date.
"CONVERSION RATE" has the meaning specified in Section 2.03.
"CORPORATE TRUST OFFICE" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
administered, which office is, at the date as of which this Indenture is dated,
located at 000 Xxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attn:
Corporate Trust Services, re: Inverness Medical Innovations, Inc., 3%
Convertible Senior Subordinated Notes due 2016.
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"CORPORATION" means a corporation, association, company, joint-stock
company or business trust.
"CUSTODIAN" means the Trustee, as custodian with respect to the Securities
in global form, or any successor entity.
"DEFAULT" means any event that is or with the passage of time or the giving
of notice or both would become an Event of Default.
"DEPOSITARY" means The Depository Trust Company until a successor
Depositary shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Depositary" shall mean such successor Depositary.
"DESIGNATED SENIOR INDEBTEDNESS" means the Indebtedness under the Senior
Credit Agreement and all related Loan Documents as defined therein and after the
Senior Credit Agreement has been repaid in full in cash and the commitments
thereunder terminated, any other Senior Indebtedness in which the instrument
creating or evidencing the Indebtedness, or any related agreements or documents
to which the Company is a party, expressly provides that such indebtedness is
"designated senior indebtedness" for purposes of this Indenture (provided that
the instrument, agreement or other document may place limitations and conditions
on the right of the Senior Indebtedness to exercise the rights of Designated
Senior Indebtedness).
"EVENT OF DEFAULT" has the meaning specified in Section 8.01.
"EX-DIVIDEND DATE" means, except as provided in Section 6.04(g) hereof,
with respect to any distribution, the first date upon which a sale of Common
Stock does not automatically transfer the right to receive such distribution
from the seller of the Common Stock to its buyer.
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as amended.
"FAIR MARKET VALUE" means the amount which a willing buyer would pay a
willing seller in an arm's length transaction.
"FUNDAMENTAL CHANGE" means the occurrence of any of the following events at
any time after the Securities are originally issued:
(1) a "person" or "group" within the meaning of Section 13(d) of the
Exchange Act other than the Company, has become the direct or indirect
"beneficial owner," as defined in Rule 13d-3 under the Exchange Act, of the
Company's common equity representing more than 50% of the voting power of the
Company's common equity;
(2) there occurs a sale, transfer, lease, conveyance or other disposition
of all or substantially all of the property or assets of the Company, or of the
Company and the Subsidiaries on a consolidated basis, to any "person" or "group"
(as such terms are used in Sections 13(d) and 14(d) of the Exchange Act),
including any group acting for the purpose of acquiring, holding, voting or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act;
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(3) consummation of (A) any recapitalization, reclassification or change of
the Common Stock (other than changes resulting from a subdivision or
combination) as a result of which the Common Stock would be converted into, or
exchanged for, stock, other securities, other property or assets or (B) any
share exchange, consolidation or merger of the Company (excluding a merger
solely for the purpose of changing the Company's jurisdiction of incorporation)
pursuant to which the Common Stock will be converted into cash, securities or
other property or any sale, lease or other transfer in one transaction or a
series of transactions of all or substantially all of the consolidated assets of
the Company and its Subsidiaries, taken as a whole, to any Person other than one
of the Subsidiaries; provided that a transaction where the holders of more than
50% of all classes of the Company's common equity immediately prior to such
transaction that is a share exchange, consolidation or merger own, directly or
indirectly, in substantially the same proportion, more than 50% of all classes
of common equity of the continuing or surviving corporation or transferee or the
parent thereof immediately after such event shall not be a Fundamental Change;
(4) the following persons cease for any reason to constitute a majority of
the Company's Board of Directors: (A) individuals who on the Issue Date
constitute the Company's Board of Directors; and (B) any new directors whose
election to the Company's Board of Directors or whose nomination for election by
the Company's stockholders was approved by at least a majority of the directors
of the Company then still in office either who were directors of the Company on
the Issue Date or whose election or nomination for election was previously so
approved; or
(5) the Company is liquidated or dissolved or the holders of the Company's
capital stock approve any plan or proposal for the liquidation or dissolution of
the Company.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, in each case, as in effect in the United States from time to time.
"GLOBAL SECURITY" means a Security in global form registered in the
Security Register in the name of a Depositary or a nominee thereof.
"HOLDER" or "SECURITYHOLDER" means a Person in whose name a Security is
registered in the Security Register.
"INDEBTEDNESS" means:
(i) all of the Company's indebtedness, obligations and other
liabilities, contingent or otherwise, (A) 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 (B) evidenced
by credit or loan agreements, bonds, debentures, notes or similar
instruments, whether or not the recourse of the lender is to the whole of
the assets of the Company or to only a portion thereof, other than any
account payable or other accrued
5
current liability or obligation incurred in the ordinary course of business
in connection with the obtaining of materials or services;
(ii) all of the Company's reimbursement obligations and other
liabilities, contingent or otherwise, with respect to letters of credit,
bank guarantees or bankers' acceptances;
(iii) all of the Company's obligations and liabilities, contingent or
otherwise, in respect of leases required, in conformity with GAAP, to be
accounted for as capitalized lease obligations on the Company's balance
sheet;
(iv) all of the Company's obligations and other liabilities,
contingent or otherwise, under any lease or related document, including a
purchase agreement, conditional sale or other title retention agreement, in
connection with the lease of real property or improvements thereon (or any
personal property included as part of any such lease) which provides that
the Company is contractually obligated to purchase or cause a third party
to purchase the leased property or pay an agreed upon residual value of the
leased property, including the Company's obligations under such lease or
related document to purchase or cause a third party to purchase such leased
property or pay an agreed upon residual value of the leased property to the
lessor;
(v) all of the Company's obligations, contingent or otherwise, with
respect to an interest rate or other swap, cap, floor or collar agreement
or hedge agreement, forward contract or other similar instrument or
agreement or foreign currency hedge, exchange, purchase or similar
instrument or agreement;
(vi) all of the Company's direct or indirect guarantees or similar
agreements by the Company in respect of, and all of the Company's
obligations or liabilities to purchase or otherwise acquire or otherwise
assure a creditor against loss in respect of, indebtedness, obligations or
liabilities of another person of the kinds described in clauses (i) through
(v) above; and
(vii) any and all deferrals, renewals, extensions, refinancings and
refundings of, or amendments, modifications or supplements to, any
indebtedness, obligation or liability of the kinds described in clauses (i)
through (vi) above.
"INDENTURE" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this instrument and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"INTEREST PAYMENT DATE" means each May 15 and November 15 of each year,
beginning November 15, 2007.
"ISSUE DATE" means the date the Securities are originally issued as set
forth on the face of the Security under this Indenture.
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"LISTED STOCK BUSINESS COMBINATION" means a transaction in which the
Company consolidates with, or merges with or into, another person or any person
consolidates with, or merges with or into, the Company in which at least ninety
percent (90%) of the consideration (other than cash payments for fractional
shares or pursuant to statutory appraisal rights) in such consolidation or
merger consists of common stock and any associated rights traded on a U.S.
national securities exchange (or which will be so traded when issued or
exchanged in connection with such consolidation or merger), and, as a result of
such consolidation or merger, the Securities become convertible into cash and,
if applicable, solely such common stock and associated rights.
"LAST REPORTED SALE PRICE" means, on any date, the closing sale price per
share of the Common Stock (or, if no closing sale price is reported, the average
of the bid and ask prices or, if more than one in either case, the average of
the average bid and the average ask prices) on such date as reported in
composite transactions for the principal U.S. securities exchange on which the
Common Stock is traded. If the Common Stock is not listed for trading on a U.S.
national or regional securities exchange on the relevant date, the "Last
Reported Sale Price" shall mean the last quoted bid price for the Common Stock
in the over-the-counter market on such date as reported by the National
Quotation Bureau Incorporated or any similar organization. If the Common Stock
is not so quoted, the "Last Reported Sale Price" shall mean the average of the
mid-point of the last bid and ask prices for the Common Stock on such date from
each of at least three nationally recognized independent investment banking
firms selected by the Company for such purpose.
"MAKE-WHOLE FUNDAMENTAL CHANGE" means an Asset Sale Make-Whole Fundamental
Change or a Common Stock Change Make-Whole Fundamental Change that occurs before
Maturity or an event set forth in clause (1) of the definition of "Fundamental
Change."
"MARKET DISRUPTION EVENT" means, except for purposes of the definition of
Trading Day, (i) a failure by the primary U.S. national or regional securities
exchange or market on which the Common Stock is listed or admitted to trading to
open for trading during its regular trading session or (ii) the occurrence or
existence prior to 1:00 p.m., New York City time, on any Scheduled Trading Day
for the Common Stock for an aggregate one half hour period of any suspension or
limitation imposed on trading (by reason of movements in price exceeding limits
permitted by the stock exchange or otherwise) in the Common Stock or in any
options, contracts or future contracts relating to the Common Stock.
"MATURITY," when used with respect to any Security, means the date on which
the principal or Repurchase Price of such Security becomes due and payable as
therein or herein provided, whether at Stated Maturity or Repurchase Date, by
declaration of acceleration or otherwise.
"MEASUREMENT PERIOD" has the meaning specified in Section 6.01(a).
"NOTICE OF DEFAULT" has the meaning specified in Section 8.01.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chief Executive
Officer, the President or the Chief Financial Officer, and by the Treasurer or
the Secretary, of the Company,
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and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 4.09 shall be the principal executive,
financial or accounting officer of the Company.
"OPINION OF COUNSEL" means a written opinion of counsel who may be external
or in-house counsel for the Company, reasonably acceptable to the Trustee.
"OUTSTANDING," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or accepted by the
Trustee for cancellation;
(ii) Securities, or portions thereof, for the payment of which or
purchase money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set
aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities; provided that if
such Securities are to be purchased prior to the maturity thereof, notice
of such purchase shall have been given to the Holders as herein provided,
or provision satisfactory to a Responsible Officer of the Trustee shall
have been made for giving such notice;
(iii) Securities that have been paid or in exchange for or in lieu of
which other Securities have been authenticated and delivered pursuant to
this Indenture; and
(iv) Securities converted pursuant to Article 6;
provided, however, that, in determining whether the Holders of the requisite
Principal Amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Notwithstanding the
foregoing, Securities that have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor of the Securities or any Affiliate of
the Company or of such other obligor.
"PAYING AGENT" means any Person (including the Company) authorized by the
Company to pay the Principal Amount of, interest on, including Additional
Interest, or Repurchase Price of, any Securities on behalf of the Company. The
Trustee shall be the initial Paying Agent.
"PERSON" means any individual, corporation, partnership, limited liability
company, joint venture, trust, unincorporated organization or government or any
agency or political subdivision thereof.
8
"PHYSICAL SECURITIES" means permanent certificated Securities in registered
form issued in denominations of $1,000 Principal Amount and multiples thereof.
"PHYSICAL SETTLEMENT" has the meaning specified in Section 6.03(a).
"PRINCIPAL AMOUNT" of a Security means the Principal Amount as set forth on
the face of the Security.
"PUBLICLY TRADED SECURITIES" means, in respect of a transaction set forth
in the definition of Fundamental Change, shares of common stock that are traded
on a U.S. national securities exchange or which will be so traded or quoted when
issued or exchanged in connection with such Fundamental Change.
"PURCHASE AGREEMENTS" means the Purchase Agreements, dated May 9, 2007,
entered into by the Company and the various purchasers of the Securities.
"QUALIFIED INSTITUTIONAL BUYER" or "QIB" shall have the meaning specified
in Rule 144A.
"RECORD DATE" means, with respect to the payment of interest on the
Securities, including Additional Interest, if any, the April 15 (whether or not
a Business Day) immediately preceding an Interest Payment Date on May 15 and the
October 15 (whether or not a Business Day) immediately preceding an Interest
Payment Date on November 1.
"REFERENCE PROPERTY" has the meaning specified in Section 6.06.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights Agreement,
dated as of May 14, 2007, between the Company and the other parties named
therein, for the benefit of itself and the Holders, as the same may be amended
or modified from time to time in accordance with the terms thereof.
"REPRESENTATIVE" means the (a) indenture trustee, administrative agent or
other trustee, agent or representative for any Senior Indebtedness (including,
without limitation, any agent under the Senior Credit Agreement) 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.
"REPURCHASE NOTICE" has the meaning specified in Section 5.01(b).
"REPURCHASE DATE" has the meaning specified in Section 5.01(a).
"REPURCHASE NOTICE" has the meaning specified in Section 5.01(a).
"REPURCHASE PRICE" has the meaning specified in Section 5.01(a).
9
"RESALE REGISTRATION STATEMENT" means a registration statement under the
Securities Act registering the Securities for resale pursuant to the terms of
the Registration Rights Agreement.
"RESPONSIBLE OFFICER" means any officer or authorized representative of the
Trustee within the Corporate Trust Office of the Trustee with direct
responsibility for the administration of this Indenture and also, with respect
to a particular matter, any other officer of the Trustee to whom such matter is
referred because of such officer's knowledge and familiarity with the particular
subject.
"RESTRICTED GLOBAL SECURITY" means a Global Security representing
Restricted Securities.
"RESTRICTED SECURITY" or "RESTRICTED SECURITIES" has the meaning specified
in Section 2.05.
"RULE 144" means Rule 144 under the Securities Act (including any successor
rule thereto), as the same may be amended from time to time.
"RULE 144A" means Rule 144A under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"RULE 144A INFORMATION" has the meaning specified in Section 2.03.
"SCHEDULED TRADING DAY" means a day that is scheduled to be a day on which
trading in securities generally occurs on the American Stock Exchange, or if the
Common Stock is not then listed on the American Stock Exchange, on the other
principal U.S. national or regional securities exchange on which the Common
Stock is then traded. If the Common Stock is not so listed or admitted for
trading, "Scheduled Trading Day" means a Business Day.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"SECURITY" or "SECURITIES" has the meaning specified in the first paragraph
of the Recitals of the Company.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective meanings
specified in Section 3.06.
"SENIOR CREDIT AGREEMENT" means that certain Third Amended and Restated
Credit Agreement dated as of June 30, 2005 (as amended, restated, supplemented
or otherwise modified from time to time before, on or after the date of this
Indenture) among, inter alia, the Company, certain of the Company's
subsidiaries, the lenders party thereto, and General Electric Capital
Corporation as administrative agent including any renewals, refinancings,
replacements or extensions thereof.
"SENIOR INDEBTEDNESS" means the principal of, and premium, if any,
interest, including any interest accruing after the commencement of any
bankruptcy or similar proceeding, whether
10
or not a claim for post-petition interest is allowed as a claim in the
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 this Indenture or thereafter created,
incurred, assumed, guaranteed or in effect guaranteed by the Company, including
all deferrals, renewals, extensions or refundings of, or amendments,
modifications or supplements to, the foregoing; provided, however, that Senior
Indebtedness does not include:
(i) Indebtedness that expressly provides that such Indebtedness (a)
shall not be senior in right of payment to the Securities, (b) shall be
pari passu and equal in right of payment to the Securities or (c) shall be
junior in right of payment to the Securities;
(ii) any Indebtedness to any majority-owned Subsidiaries, other than
Indebtedness to the Subsidiaries arising by reason of guarantees by the
Company of indebtedness of such Subsidiary to a Person that is not a
Subsidiary;
(iii) Indebtedness for trade payables or the deferred purchase price
of assets or services incurred in the ordinary course of business; and
(iv) the Bonds.
"SETTLEMENT AMOUNT" has the meaning specified in Section 6.03(f).
"SIGNIFICANT SUBSIDIARY" means, as of any date of determination, a
Subsidiary of the Company that would constitute a "SIGNIFICANT SUBSIDIARY" as
such term is defined under Rule 1-02(w) of Regulation S-X of the Commission as
in effect on the date of this Indenture.
"SPIN-OFF" has the meaning specified in Section 6.04(c).
"STATED MATURITY," when used with respect to any Security, means the date
specified in such Security as the fixed date on which an amount equal to the
Principal Amount of such Security together with accrued and unpaid interest, if
any, is due and payable.
"STOCK TRANSFER AGENT" means Computershare Trust Company, N.A. or such
other Person as may be designated by the Company as the transfer agent for the
Common Stock.
"SUBSIDIARY" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"SUCCESSOR COMPANY" has the meaning specified in Section 9.01(a).
A "TERMINATION OF TRADING" shall occur is the Common Stock of the Company
(or other common stock into which the Securities are then convertible) is
neither listed for trading on a
11
U.S. national securities exchange nor approved for trading on an established
automated over-the-counter trading market in the United States.
"TRADING DAY" means, except as provided in Section 6.03(e) hereof, a day on
which (i) trading in securities generally occurs on the New York Stock Exchange
or, if the Common Stock is not then listed on the New York Stock Exchange, on
the principal other U.S. national or regional securities exchange on which the
Common Stock is then listed or, if the Common Stock is not then listed on a U.S.
national or regional securities exchange, in the principal other market on which
the Common Stock is then traded, (ii) there is no market disruption event and
(iii) a Last Reported Sale Price for the Common Stock is available on such
securities exchange or market. If the Common Stock (or other security for which
a closing sale price must be determined) is not so listed or quoted, "Trading
Day" means a Business Day. For purposes of this definition, "market disruption
event" means the occurrence or existence on any Scheduled Trading Day for the
Common Stock of any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the relevant stock exchange or
otherwise) in the Common Stock on the relevant exchange or in any options,
contracts or future contracts relating to the Common Stock on the relevant
exchange, and such suspension or limitation occurs or exists during the one hour
period before the closing time of the relevant exchange on such day.
"TRADING PRICE" of the Securities on any date of determination means the
average of the secondary market bid quotations per $1,000 Principal Amount of
the Securities obtained by the Bid Solicitation Agent for $5,000,000 Principal
Amount of the Securities at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities
dealers selected by the Company; provided that, if three such bids cannot
reasonably be obtained by the Bid Solicitation Agent but two such bids are
obtained, then the average of the two bids shall be used, and if only one such
bid can reasonably be obtained by the Bid Solicitation Agent, that one bid shall
be used. If the Bid Solicitation Agent cannot reasonably obtain at least one bid
for $5,000,000 Principal Amount of the Securities from a nationally recognized
securities dealer, then the Trading Price per $1,000 Principal Amount of
Securities will be deemed to be less than 98% of the product of the Last
Reported Sale Price of the Common Stock and the applicable Conversion Rate.
"TRANSFER RESTRICTED SECURITY" means a Security required to bear the
restricted legend set forth in the form of Security in Section 2.02.
"TRIGGER EVENT" has the meaning specified in Section 6.04(b).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939 as in effect on
the date as of which this Indenture was executed; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"TRUSTEE" means the Person named as the "TRUSTEE" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "TRUSTEE" shall mean
such successor Trustee.
12
"U.S." means the United States of America.
"VICE PRESIDENT," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
Section 1.02 Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate
or opinion shall be given in the form of an Officers' Certificate, if to be
given by an officer of the Company, or an Opinion of Counsel, if to be given by
counsel, and shall comply with the requirements of the Trust Indenture Act and
any other requirement set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of each such individual, such
individual has made such examination or investigation as is necessary to enable
such individual to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such
condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows that the certificate or
opinion or representations with respect to such matters are erroneous.
13
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agent duly appointed in writing
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as an "ACT" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 11.01) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee reasonably deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 12.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
14
Section 1.05 Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with:
(i) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its applicable Corporate Trust Office; or
(ii) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Chief Legal
Officer.
Section 1.06 Notice to Holders; Waiver. Where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at such Holder's address
as it appears in the Security Register, not later than the latest date (if any),
and not earlier than the earliest date (if any), prescribed for the giving of
such notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Whenever under this Indenture the Trustee is required to provide any notice
by mail, in all cases the Trustee may alternatively provide notice by overnight
courier or by telefacsimile, with confirmation of transmission.
Section 1.07 Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with a provision of the Trust Indenture Act that
is required hereunder to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
Section 1.08 Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof, and all Article and Section references
are to Articles and Sections, respectively, of this Indenture unless otherwise
expressly stated.
15
Section 1.09 Severability Clause. In case any provision 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 1.10 Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their respective successors hereunder and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
Section 1.11 Governing Law. This Indenture and the Securities shall be
governed by and construed in accordance with the laws of the State of New York.
Section 1.12 No Recourse Against Others. No director, officer, employee,
stockholder or Affiliate of the Company from time to time shall have any
liability for any obligations of the Company under the Securities or this
Indenture. Each Holder by accepting a Security waives and releases such
liability.
ARTICLE 2
SECURITY FORMS
Section 2.01 Forms Generally. The Securities and the Trustee's certificates
of authentication shall be in substantially the forms set forth in this Article,
with such appropriate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or Depositary therefor, the Code and regulations thereunder, or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution thereof.
The Securities shall initially be issued in the form of permanent Global
Securities in registered form in substantially the form set forth in this
Article. The aggregate Principal Amount of the Global Securities may from time
to time be decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary, as hereinafter provided.
Section 2.02 Form of Face of Security. Each Security that is a Global
Security shall bear the following legend:
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 MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK
16
CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
(b) The face of each Security shall be substantially in the following form:
3% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2016
No. _________ CUSIP NO. 0000XXX0 U.S.$____________
Inverness Medical Innovations, Inc., a corporation duly organized and
validly existing under the laws of the State of Delaware (herein called the
"COMPANY"), which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received hereby promises to pay to
[_____], the principal sum of [________] United States Dollars ($[_____]) (which
amount may from time to time be decreased by adjustments made on the records of
the Trustee, as custodian for the Depositary, in accordance with the rules and
procedures of the Depositary) on May 15, 2016. Payment of the principal of this
Security shall be made by check mailed to the address of the Holder of this
Security specified in the register of Securities, or, at the option of the
Company, by wire transfer in immediately available funds, in such lawful money
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts.
The issue date of this Security is May 14, 2007.
Reference is made to the further provisions of this Security set forth on
the reverse hereof, including, without limitation, provisions giving the Holder
the right to convert this Security and to require the Company to purchase this
Security upon certain events, in each case, on the terms and subject to the
limitations referred to on the reverse hereof and as more fully specified in the
Indenture. Such further provisions shall for all purposes have the same effect
as though fully set forth at this place. Capitalized terms used but not defined
herein shall have such meanings as are ascribed to such terms in the Indenture.
This Security shall be deemed to be a contract made under the laws of the
State of New York, and for all purposes shall be construed in accordance with
and governed by the laws of said State.
This Security shall not be valid or become obligatory for any purpose until
the certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
17
INVERNESS MEDICAL INNOVATIONS, INC.
By:
------------------------------------
Authorized Signatory
18
Section 2.03 Form of Reverse of Security. The reverse of each Security
shall be substantially in the following form:
INVERNESS MEDICAL INNOVATIONS, INC.
3% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2016
This Security is one of a duly authorized issue of Securities of the
Company, designated as its 3% Convertible Senior Subordinated Notes due 2016
(the "SECURITIES"), all issued or to be issued under and pursuant to an
Indenture dated as of May 14, 2007 (the "INDENTURE"), between the Company and
U.S. Bank Trust National Association (the "TRUSTEE"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Securities.
Interest. The Securities will bear interest at a rate of 3% per year until
Maturity. Interest on the Securities will accrue from May 14, 2007, or from the
most recent date on which interest has been paid or duly provided for. Interest
will be payable semiannually in arrears on May 15 and November 15 beginning
November 15, 2007, and at Maturity.
Interest will be paid to the person in whose name a Security is registered
at the close of business on the October 15 (whether or not a Business Day) or
April 15 (whether or not a Business Day), as the case may be, immediately
preceding the relevant Interest Payment Date. Interest on the Securities will be
computed on the basis of a 360-day year composed of twelve 30-day months.
Subordination. The Securities are subordinate in right of payment, in the
manner and to the extent set forth in the Indenture, to the prior payment in
full of all Senior Indebtedness. Each Holder, by accepting a Security, agrees to
the provisions of the Indenture and authorizes the Trustee to give them effect.
Purchase by the Company at the Option of the Holder Upon a Fundamental
Change. Subject to the terms and conditions of the Indenture, the Company shall
become obligated, at the option of the Holder, to purchase the Securities if a
Fundamental Change or Termination of Trading occurs at 100% of the Principal
Amount plus accrued and unpaid interest, including Additional Interest, if any,
to, but excluding, the Repurchase Date, which amount will be paid in cash.
Withdrawal of Repurchase Notice. Holders have the right to withdraw, in
whole or in part, any Repurchase Notice, as the case may be, by delivering to
the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
Payment of Repurchase Price. If cash sufficient to pay the Repurchase Price
of all Securities or portions thereof to be purchased on a Repurchase Date is
deposited with the Paying Agent on the Business Day following the Repurchase
Date, such Securities will cease to be outstanding and interest, including
Additional Interest, if any, will cease to accrue on such Securities (or
portions thereof) on such Repurchase Date, and the Holder thereof shall have no
19
other rights as such (other than the right to receive the Repurchase Price and
previously accrued and unpaid interest, including Additional Interest, if any,
upon surrender of such Security).
Conversion. Subject to and in compliance with the provisions of the
Indenture (including without limitation the conditions of conversion of this
Security set forth in Article 6 thereof), the Holder hereof has the right, at
its option, to convert the Principal Amount hereof or any portion of such
principal which is $1,000 or a multiple thereof, into, subject to Section 6.01
and Section 6.03 of the Indenture, shares of Common Stock, other than cash in
lieu of fractional shares, at the Conversion Rate. The Conversion Rate is
initially 19.1208 shares of Common Stock per $1,000 Principal Amount of
Securities (equivalent to a conversion price of approximately $52.299 per share
of Common Stock), subject to adjustment in certain events described in the
Indenture. No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Securities for conversion. Securities in respect of which a
Holder is exercising its right to require purchase on a Repurchase Date may be
converted only if such Holder withdraws its election to exercise such right in
accordance with the terms of the Indenture.
In the event of a deposit or withdrawal of an interest in this Security,
including an exchange, transfer, purchase or conversion of this Security in part
only, the Trustee, as custodian of the Depositary, shall make an adjustment on
its records to reflect such deposit or withdrawal in accordance with the rules
and procedures of the Depositary.
Subject to certain limitations in the Indenture, at any time when the
Company is not subject to Section 13 or 15(d) of the United States Securities
Exchange Act of 1934, as amended, upon the request of a Holder of a Restricted
Security, the Company will promptly furnish or cause to be furnished Rule 144A
Information (as defined below) to such Holder of Restricted Securities, or to a
prospective purchaser of any such security designated by any such Holder, to the
extent required to permit compliance by any such Holder with Rule 144A under the
Securities Act. "RULE 144A INFORMATION" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto).
If an Event of Default shall occur and be continuing, and except as
otherwise provided in the Indenture, the Principal Amount plus interest,
including Additional Interest, if any, through such date on all the Securities
may be declared due and payable in the manner and with the effect provided in
the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of not
less than a majority in aggregate Principal Amount of the Outstanding
Securities. The Indenture also contains provisions permitting the Holders of
specified percentages in aggregate Principal Amount of the Outstanding
Securities, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of any provision of or applicable to this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any
20
Security issued upon the registration of transfer hereof or in exchange herefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Securities, the Holders of not less than 25% in aggregate Principal Amount of
the Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity satisfactory to it, the Trustee shall not have
received from the Holders of a majority in Principal Amount of Outstanding
Securities a direction inconsistent with such request, and the Trustee shall
have failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of the Principal Amount or Repurchase Price hereof, or interest hereon,
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the Principal Amount or Repurchase Price of,
and interest, including Additional Interest, if any, on, this Security at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations (including
transfer restrictions) therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this Security for
registration of transfer at the office or agency of the Company in The City of
New York, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
Principal Amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form in denominations of
$1,000 and any multiple of $1,000 above that amount, as provided in the
Indenture and subject to certain limitations therein set forth. Securities are
exchangeable for a like aggregate Principal Amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company and the Security Registrar may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and the Security Registrar and any agent of the Company or
the Trustee may treat the Person in whose name this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
21
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
22
ASSIGNMENT FORM
If you want to assign this Security, fill in the form below and have your
signature guaranteed:
I or we assign and transfer this Security to:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type name, address and zip code and social security or tax ID number
of assignee)
and irrevocably appoint _____________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Date: Signed:
------------------------------- --------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
23
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the Commission
of the effectiveness of a registration statement under the Securities Act, as
amended (the "SECURITIES ACT"), covering resales of this Security (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) the second anniversary of the Issue Date set forth on the
face of this Security, the undersigned confirms that it has not utilized any
general solicitation or general advertising in connection with the transfer and
that this Security is being transferred:
[Check One]
(1) [ ] to the Company or a subsidiary thereof; or
(2) [ ] to a "Qualified Institutional Buyer" pursuant to and in
compliance with Rule 144A under the Securities Act; or
(3) [ ] pursuant to the exemption from registration provided by Rule
144 under the Securities Act.
Unless one of the above boxes is checked, the Trustee will refuse to register
any of the Securities evidenced by this certificate in the name of any Person
other than the registered Holder thereof, provided that if box (3) is checked,
the Company may require (and shall deliver to the Trustee and the Security
Registrar), prior to registering any such transfer of the Securities, in its
sole discretion, such legal opinions, certifications and other information as
the Company may reasonably request to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Security
Registrar shall not be obligated to register this Security in the name of any
Person other than the Holder hereof unless and until the conditions to any such
transfer of registration set forth herein and in Section 3.10 of the Indenture
shall have been satisfied.
Date: Signed:
------------------------------- --------------------------------
(Sign exactly as your name
appears on the other side of
this Security)
Signature Guarantee:
----------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
24
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Security
for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "QUALIFIED
INSTITUTIONAL BUYER" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Date: Signed:
------------------------------- --------------------------------
NOTICE: To be executed by an executive officer.
25
CONVERSION NOTICE
If you want 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 (which must be $1,000 or a multiple of $1,000):
$_______________________
If you want the stock certificate, if any, made out in another person's
name, fill in the form below:
________________________________________________________________________________
(Insert other person's social security or tax ID no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type other person's name, address and zip code)
Date: Signed:
------------------------------- --------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee:
----------------
Note: Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined by
the Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
26
Section 2.04 Form of Trustee's Certificate of Authentication. This is one
of the Securities referred to in the within-mentioned Indenture.
Dated:
------------------------------ _______________________________________,
as Trustee
By
-------------------------------------
Authorized Signatory
Section 2.05 Legend on Restricted Securities. During the period beginning
on the Issue Date and ending on the date two years from such date, any Security,
including any Security issued in exchange therefor or in lieu thereof, shall be
deemed a "RESTRICTED SECURITY" and shall be subject to the restrictions on
transfer provided in the legends set forth on the face of the form of Security
in Section 2.02; provided, however, that the term "RESTRICTED SECURITY" shall
not include any Securities as to which restrictions have been terminated in
accordance with Section 3.06. All Securities shall bear the applicable legends
set forth on the face of the form of Security in Section 2.02. Except as
provided in Section 3.06 and Section 3.10, the Trustee shall not issue any
unlegended Security until it has received an Officers' Certificate from the
Company directing it to do so.
ARTICLE 3
THE SECURITIES
Section 3.01 Title and Terms; Payments. The aggregate Principal Amount of
Securities that may be authenticated and delivered under this Indenture is
initially limited to $150,000,000, except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities pursuant to Sections 2.05, 3.05, 3.06, 3.07 or 5.05.
The Securities shall be known and designated as the "3% Convertible Senior
Subordinated Notes due 2016" of the Company. The Principal Amount shall be
payable at Stated Maturity.
The Principal Amount of and interest (including any Additional Interest) on
Global Securities registered in the name of or held by The Depository Trust
Company or its nominee shall be paid by wire transfer in immediately available
funds to The Depository Trust Company or its nominee, as applicable, as the
registered Holder of such Global Security.
The Principal Amount of Physical Securities shall be payable at the
Corporate Trust Office and at any other office or agency maintained by the
Company for such purpose. Interest (including Additional Interest, if any) on
Physical Securities will be payable (i) to Holders having an aggregate Principal
Amount of $5,000,000 or less of Securities, by check mailed to such Holders at
the address set forth in the Security Register and (ii) to Holders having an
aggregate Principal Amount of more than $5,000,000 of Securities, either by
check mailed to such Holders or, upon application by a Holder to the Security
Registrar not later than the relevant Record Date for such interest payment, by
wire transfer in immediately available funds to such
27
Holder's account within the United States, which application shall remain in
effect until the Holder notifies, in writing, the Security Registrar to the
contrary.
If any Interest Payment Date (other than an Interest Payment Date
coinciding with Stated Maturity or earlier Repurchase Date) of a Security falls
on a day that is not a Business Day, such Interest Payment Date shall be
postponed to the next succeeding Business Day. If Stated Maturity or earlier
Repurchase Date would fall on a day that is not a Business Day, the required
payment of interest, if any, and Principal Amount (and Additional Interest, if
any), shall be made on the next succeeding Business Day and no interest on such
payment shall accrue for the period from and after Stated Maturity or earlier
Repurchase Date to such next succeeding Business Day. If a Record Date is not a
Business Day, the Record Date will be unaffected.
Section 3.02 Ranking. The Securities constitute subordinated Indebtedness
of the Company, as set forth in Article 10 hereof, and shall rank pari passu and
equal in right of payment with the Bonds.
Section 3.03 Denominations. The Securities shall be issuable only in
registered form without coupons and in denominations of $1,000 and any multiple
of $1,000 above that amount.
Section 3.04 Execution, Authentication, Delivery and Dating. The Securities
shall be executed on behalf of the Company by its Chief Executive Officer, its
President, its Chief Financial Officer or its Treasurer.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities. The Company Order shall specify the amount of
Securities to be authenticated, and shall further specify the amount of such
Securities to be issued as a Global Security or as Physical Securities. The
Trustee in accordance with such Company Order shall authenticate and deliver
such Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder.
Section 3.05 Temporary Securities. Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities
28
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities;
provided, that any such temporary Securities shall bear legends on the face of
such Securities as set forth in Section 2.02.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at any office
or agency of the Company designated pursuant to Section 4.02, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like Principal Amount of Physical Securities of
authorized denominations. Until so exchanged, the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as Physical
Securities.
Section 3.06 Registration; Registration of Transfer and Exchange;
Restrictions on Transfer.
(a) The Company shall cause to be kept at the applicable Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency designated pursuant to Section 4.02 being herein
sometimes collectively referred to as the "SECURITY REGISTER") in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The Trustee
is hereby appointed "Security Registrar" (the "SECURITY REGISTRAR") for the
purpose of registering Securities and transfers of Securities as herein
provided.
Upon surrender for registration of transfer of any Security at an office or
agency of the Company designated pursuant to Section 4.02 for such purpose, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denominations and of a like aggregate Principal Amount and tenor,
each such Security bearing such restrictive legends as may be required by this
Indenture (including Section 2.02, 2.05, 3.06(b) and 3.10).
At the option of the Holder and subject to the other provisions of this
Section 3.06 and to Section 3.10, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate Principal
Amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly
29
executed, by the Holder thereof or his attorney duly authorized in writing. As a
condition to the registration of transfer of any Restricted Securities, the
Company or the Trustee may require evidence satisfactory to them as to the
compliance with the restrictions set forth in the legend on such securities.
Except as provided in the following sentence and in Section 3.10, all
Securities originally issued hereunder and all Securities issued upon
registration of transfer or exchange or replacement thereof shall be Restricted
Securities and shall bear the legends required by Sections 2.02 and 2.05, unless
the Company shall have delivered to the Trustee (and the Security Registrar, if
other than the Trustee) an Officers' Certificate stating that the Security is
not a Restricted Security and may be issued without such legend thereon.
Securities that are issued upon registration of transfer of, or in exchange for,
Securities that are not Restricted Securities shall not be Restricted Securities
and shall not bear such legend.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.05 not involving any
transfer.
Neither the Company nor the Security Registrar shall be required to
exchange or register a transfer of any Security (i) that has been surrendered
for conversion or (ii) as to which a Repurchase Notice has been delivered and
not withdrawn, except that where such Repurchase Notice provides that such
Security is to be purchased only in part, the Company and the Security Registrar
shall be required to exchange or register a transfer of the portion thereof not
to be purchased.
(b) Beneficial ownership of every Restricted Security shall be subject to
the restrictions on transfer provided in the legends required to be set forth on
the face of each Restricted Security pursuant to Sections Section 2.02 and 2.05,
unless such restrictions on transfer shall be terminated in accordance with this
Section 3.06(b) or Section 3.10. The Holder of each Restricted Security, by such
Holder's acceptance thereof, agrees to be bound by such restrictions on
transfer.
The restrictions imposed by this Section 3.06 and by Section 2.02, 2.05 and
3.10 upon the transferability of any particular Restricted Security shall cease
and terminate upon delivery by the Company to the Trustee of an Officers'
Certificate stating that such Restricted Security has been sold pursuant to an
effective Resale Registration Statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto). Any Restricted Security as to which the Company has delivered to the
Trustee an Officers' Certificate stating that such restrictions on transfer
shall have expired in accordance with their terms or shall have terminated may,
upon surrender of such Restricted Security for exchange to the Security
Registrar in accordance with the provisions of this Section 3.06, be exchanged
for a new Security, of like tenor and aggregate Principal Amount, which shall
not bear the restrictive legends required by Section 2.02 and 2.05. The Company
shall inform the Trustee in writing of the effective date of any resale
registration statement registering the Securities under the Securities Act. The
Trustee shall not be liable for any action taken or
30
omitted to be taken by it in good faith in accordance with the aforementioned
resale registration statement.
As used in the preceding two paragraphs of this Section 3.06, the term
"TRANSFER" encompasses any sale, pledge, transfer or other disposition of any
Restricted Security.
(c) Neither the Trustee, the Security Registrar nor any of their respective
agents shall (i) have any duty to monitor compliance with or with respect to any
federal or state or other securities or tax laws or (ii) have any duty to obtain
documentation relating to any transfers or exchanges other than as specifically
required hereunder.
Section 3.07 Mutilated, Destroyed, Lost and Stolen Securities. If any
mutilated Security is surrendered to the Trustee, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of like tenor and Principal Amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company and the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and Principal Amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.07, the Company
may require payment by the Holder of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.07 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 the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 3.08 Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Company, the Trustee, the Security Registrar
and any agent of the Company, the Trustee or the Security Registrar may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of the principal of such Security
and for all other purposes whatsoever, whether or not such Security be
31
overdue, and neither the Company, the Trustee, the Security Registrar nor any
agent of the Company, the Trustee or the Security Registrar shall be affected by
notice to the contrary.
Section 3.09 Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name of
the Depositary or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for the Depositary and (iii) bear legends as set forth on
the face of the form of Security in Section 2.02.
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 the Trustee as its custodian, or under the Global
Security, and the Depositary may be treated by the Company, the Trustee and any
agent of the Company or the Trustee as the absolute owner of the Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices governing the exercise of the
rights of any Holder.
(b) Transfers of the Global Securities shall be limited to transfers in
whole, but not in part, to the Depositary, its successors or their respective
nominees. Interests of beneficial owners in a Global Security may be transferred
or exchanged, in whole or in part, for Physical Securities, upon the request of
a participant of the Depositary by written notice given to the Trustee by or on
behalf of the Depositary, in accordance with the rules and procedures of the
Depositary and the provisions of Section 3.10. In addition, Physical Securities
shall be transferred to all beneficial owners in exchange for their beneficial
interests in the Global Securities if (i) such Depositary has notified the
Company that the Depositary (A) is unwilling or unable to continue as Depositary
for such Global Security and no successor Depositary shall have been appointed
within 90 days or (B) has ceased to be a clearing agency registered under the
Exchange Act when the Depositary is required to be so registered to act as such
Depositary and, in either such case, no successor Depositary shall have been
appointed within 90 days of such notification, (ii) there shall have occurred
and be continuing an Event of Default with respect to such Global Security and
the Trustee has received a request from the Depositary that Physical Securities
be issued or (iii) the Company, at its option, notifies the Trustee that it
elects to cause the issuance of Physical Securities, subject to applicable
procedures of the Depositary; provided that Holders of Physical Securities
offered and sold in reliance on Rule 144A shall have the right, subject to
applicable law, to request that such Securities be exchanged for interests in
the applicable Global Security.
(c) In connection with any transfer or exchange of a portion of the
beneficial interest in the Global Security to beneficial owners pursuant to
paragraph (b) above, the Security Registrar shall (if one or more Physical
Securities are to be issued) reflect on its books and records the date and a
decrease in the Principal Amount of the Global Security in an amount equal to
the Principal Amount of the beneficial interest in the Global Security to be
transferred, and the Company shall execute, and the Trustee shall authenticate
and deliver, one or more Physical Securities of like tenor and amount.
32
(d) In connection with the transfer of the entire Global Security to
beneficial owners pursuant to paragraph (b) above, the Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each beneficial
owner identified by the Depositary in exchange for its beneficial interest in
the Global Security, an equal aggregate Principal Amount of Physical Securities
of authorized denominations and the same tenor.
(e) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in the Global Security pursuant to paragraph (c) or (d)
above shall, except as otherwise provided by paragraph (c) of Section 3.10, bear
the legend regarding transfer restrictions applicable to the Physical Securities
set forth on the face of the form of Security in Section 2.02.
(f) The Holder of the Global Securities may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action that a Holder is entitled to
take under this Indenture or the Securities.
Section 3.10 Cancellation and Transfer Provisions. The Company at any time
may deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold. The Trustee shall cancel and dispose of all Securities surrendered for
registration of transfer, exchange, payment, purchase, repurchase, conversion
(pursuant to Article 6 hereof) or cancellation in accordance with its customary
practices. If the Company shall acquire any of the Securities, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are delivered to the
Trustee for cancellation. The Company may not issue new Securities to replace
Securities it has paid in full or delivered to the Trustee for cancellation.
(a) Transfers to QIBs. The following provisions shall apply with respect to
the registration of any proposed transfer of a Security constituting a
Restricted Security to a QIB:
(i) the Security Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Security stating, or has otherwise advised the
Company and the Security Registrar in writing, that the sale has been made
in compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Security stating, or
has otherwise advised the Company and the Security Registrar in writing,
that it is purchasing the Security for its own account or an account with
respect to which it exercises sole investment discretion and that it and
any such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges
that it has received such information regarding the Company as it has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon its
foregoing representations in order to claim the exemption from registration
provided by Rule 144A; and
33
(ii) if the proposed transferee is an Agent Member, and the Securities
to be transferred consist of Physical Securities which after transfer are
to be evidenced by an interest in the Global Security, upon receipt by the
Security Registrar of instructions given in accordance with the
Depositary's and the Security Registrar's procedures, the Security
Registrar shall reflect on its books and records the date and an increase
in the Principal Amount of the Global Security in an amount equal to the
Principal Amount of the Physical Securities to be transferred, and the
Trustee shall cancel the Physical Securities so transferred.
(b) Private Placement Legend. Upon the registration of transfer, exchange
or replacement of Securities not bearing the legends required by Section 2.02
and 2.05, the Security Registrar shall deliver Securities that do not bear such
legends. Except in the case of a registration of transfer, exchange or
replacement contemplated by the Registration Rights Agreement, upon the
registration of transfer, exchange or replacement of Securities bearing the
legends required by Section 2.02 and 2.05, the Security Registrar shall deliver
only Securities that bear such legends unless there is delivered to the Security
Registrar an Opinion of Counsel reasonably satisfactory to the Company and the
Trustee to the effect that neither such legend nor the related restrictions on
transfer are required in order to maintain compliance with the provisions of the
Securities Act.
(c) General. By its acceptance of any Security bearing the legends required
by Section 2.02 and 2.05, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and in
such legends and agrees that it will transfer such Security only as provided in
this Indenture.
The Security Registrar shall retain, in accordance with its customary
procedures, copies of all letters, notices and other written communications
received pursuant to this Section 3.10. The Company shall have the right to
inspect and make copies of all such letters, notices or other written
communications at any reasonable time upon the giving of reasonable written
notice to the Security Registrar.
Section 3.11 CUSIP Numbers. In issuing the Securities, the Company may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01 Payment of Principal and Interest. The Company covenants and
agrees that it shall duly and punctually pay or cause to be paid the principal
of, and interest on, each of the Securities at the places, at the respective
times and in the manner provided herein and in the Securities.
34
Section 4.02 Maintenance of Office or Agency. The Company shall maintain an
office or agency where the Securities may be surrendered for registration of
transfer or exchange or for presentation for payment or for conversion and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company shall give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by the Trustee. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate co-registrars and one or
more offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations.
The Company will give prompt written notice of any such designation or
rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates the Trustee as paying agent,
Security Registrar, Custodian and conversion agent at the Corporate Trust
Office.
So long as the Trustee is the Security Registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 11.11(a) and the
third paragraph of Section 11.12. If co-registrars have been appointed in
accordance with this Section, the Trustee shall mail such notices only to the
Company and the Holders of Securities it can identify from its records.
Section 4.03 Provisions as to Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee, or
if the Trustee shall appoint such a Paying Agent, the Company will cause such
Paying Agent to execute and deliver to the Trustee an instrument in which such
agent shall agree with the Trustee, subject to the provisions of this Section
4.03:
(i) that it will hold all sums held by it as such agent for the
payment of the principal of or interest, including Additional Interest, if
any, on the Securities (whether such sums have been paid to it by the
Company or by any other obligor on the Securities) in trust for the benefit
of the Holders of the Securities;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Securities) to make any payment of
the principal of or interest, including Additional Interest, if any, on the
Securities when the same shall be due and payable; and
(iii) that at any time during the continuance of an Event of Default,
upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.
The Company shall, on or before each due date of the principal of or
interest, including Additional Interest, if any, on the Securities, deposit with
the paying agent a sum (in funds which
35
are immediately available on the due date for such payment) sufficient to pay
such principal or interest, and (unless such paying agent is the Trustee) the
Company will promptly notify the Trustee of any failure to take such action;
provided, however, that if such deposit is made on the due date, such deposit
shall be received by the paying agent by 11:00 a.m. New York City time, on such
date.
(b) If the Company shall act as its own Paying Agent, it will, on or before
each due date of the principal of or interest on the Securities, set aside,
segregate and hold in trust for the benefit of the Holders of the Securities a
sum sufficient to pay such principal or interest, including Additional Interest,
if any, so becoming due and will promptly notify the Trustee of any failure to
take such action and of any failure by the Company (or any other obligor under
the Securities) to make any payment of the principal of or interest, including
Additional Interest, if any, on the Securities when the same shall become due
and payable.
(c) Anything in this Section 4.03 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any paying agent hereunder
as required by this Section 4.03, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any paying agent
to the Trustee, the Company or such paying agent shall be released from all
further liability with respect to such sums.
(d) Anything in this Section 4.03 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.03 is subject to
Section 13.03 and Section 13.04.
The Trustee shall not be responsible for the actions of any other paying
agents (including the Company if acting as its own paying agent) and shall have
no control of any funds held by such other paying agents.
Section 4.04 Rule 144A Information Requirement. 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, 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.
Section 4.05 Resale of Certain Securities. During the period beginning on
the date of issuance of the Securities and ending on the date that is two years
thereafter, the Company shall not, and shall not permit any of its "AFFILIATES"
within its "control" (each as defined under Rule 144 under the Securities Act or
any successor provision thereto) to, resell any Securities which constitute
"RESTRICTED SECURITIES" under Rule 144 that have been reacquired by any of them.
The
36
Trustee shall have no responsibility in respect of the Company's performance of
its agreement in the preceding sentence.
Section 4.06 Commission Filings. Subject to the requirements of Section
314(a) of the Trust Indenture Act, the Company will deliver to the Trustee
within 10 days after the Company is required to file the same with the
Commission, copies of the quarterly and annual reports and of the information,
documents and other reports (or copies of such portions of any of the foregoing
as the Commission may prescribe) which the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act, and shall
otherwise comply with the requirements of Section 314(a) of the Trust Indenture
Act. To the extent any such information, documents and reports are filed by the
Company electronically on the Commission's Electronic Data Gathering and
Retrieval System (or any successor system), notice thereof shall be delivered
promptly to the Trustee, upon which such information, documents and reports
shall be deemed delivered to the Trustee. In the event the Company is at any
time no longer subject to the reporting requirements of Section 13 or Section
15(d) of the Exchange Act, the Company shall continue to provide to the Trustee
and to each Holder, within thirty (30) calendar days after the date the Company
would have been required to file such reports with the Commission, annual and
quarterly consolidated financial statements substantially equivalent to
financial statements that would have been included in reports filed with the
Commission if the Company had been subject to the reporting requirements of
Section 13 or Section 15(d) of the Exchange Act, including, with respect to
annual information only, a report thereon by the Company's certified independent
public accountants as such would be required in such reports filed with the
Commission and, in each case, together with a management's discussion and
analysis of financial condition and results of operations as such would be so
required. The Company also shall comply with the other provisions of Section
314(a) of the Trust Indenture Act.
Section 4.07 Book-Entry System. If the Securities cease to trade in the
Depositary's book-entry settlement system, the Company covenants and agrees that
it shall use reasonable efforts to make such other book-entry arrangements that
it determines are reasonable for the Securities.
Section 4.08 Additional Interest under the Registration Rights Agreement.
If at any time Additional Interest becomes payable by the Company pursuant to
the Registration Rights Agreement, the Company shall promptly deliver to the
Trustee a certificate to that effect and stating (i) the amount of such
Additional Interest that is payable and (ii) the date on which such Additional
Interest is payable pursuant to the terms of the Registration Rights Agreement.
Unless and until a Responsible Officer of the Trustee receives such a
certificate, the Trustee may assume without inquiry that no Additional Interest
is payable. If the Company has paid Additional Interest directly to the Persons
entitled to such Additional Interest, the Company shall deliver to the Trustee a
certificate setting forth the particulars of such payment.
Section 4.09 Compliance Certificate. The Company shall deliver to the
Trustee, within 120 days after the end of each fiscal year of the Company, an
Officers' Certificate, stating whether or not to the knowledge of the signers
thereof the Company is in default in the performance and observance of any of
the terms, provisions, covenants and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder) or
has been in default during the previous year and, if the Company shall be in
default, or shall have
37
been in default during the previous year, specifying all such defaults and the
nature and the status thereof of which the signers may have knowledge.
The Company shall deliver to the Trustee, as soon as possible after the
Company becomes aware of the occurrence of any Event of Default or an event
which, with notice or the lapse of time or both, would constitute an Event of
Default, an Officers' Certificate setting forth the details of such Event of
Default or Default, its status and the action which the Company proposes to take
with respect thereto.
Any notice required to be given under this Section 4.09 shall be delivered
to a Responsible Officer of the Trustee at its Corporate Trust Office.
ARTICLE 5
FUNDAMENTAL CHANGE, TERMINATION OF TRADING AND PURCHASES THEREUPON
Section 5.01 Purchase at Option of Holders Upon a Fundamental Change or
Termination of Trading.
(a) Generally. If a Fundamental Change or Termination of Trading occurs,
then each Holder shall have the right, at such Holder's option, to require the
Company to purchase for cash any or all of such Holder's Securities, or any
portion of the Principal Amount thereof that is equal to $1,000 or a multiple of
$1,000, on a date specified by the Company that is no later than the 35th
calendar day following the date of the Repurchase Notice (as defined below) (the
"REPURCHASE DATE"), at a purchase price equal to 100% of the Principal Amount
thereof, together with accrued and unpaid interest thereon, including Additional
Interest, if any, to, but excluding, the Repurchase Date (the "REPURCHASE
PRICE"); provided, however, that if a Repurchase Date is between a Record Date
and the Interest Payment Date related thereto, accrued and unpaid interest,
including Additional Interest, if any, for the full interest period to such
Interest Payment Date and payable in respect of such Interest Payment Date
(irrespective of the actual Repurchase Date) shall be payable to the Holders of
record as of the corresponding Record Date.
Purchases of Securities under this Section 5.01 shall be made, at the
option of the Holder thereof, upon:
(i) delivery to the Paying Agent by a Holder, prior to 10:00 a.m., New
York City time, on or before the Business Day immediately preceding the
Repurchase Date, subject to extension to comply with applicable law, of a
duly completed notice (the "REPURCHASE NOTICE") in the form set forth on
the reverse of the Securities or otherwise specifying:
(A) if certificated, the certificate numbers of Securities to be
delivered for purchase;
(B) the portion of the Principal Amount of Securities to be
purchased, which must be $1,000 or a multiple thereof, provided that
the remaining Principal Amount of Securities is an authorized
denomination; and
38
(C) that the Securities are to be purchased by the Company
pursuant to the applicable provisions of the Securities and the
Indenture; and
(ii) delivery or book-entry transfer of the Securities to the Trustee
(or other Paying Agent appointed by the Company) (together with all
necessary endorsements) at the applicable Corporate Trust Office of the
Trustee (or other Paying Agent appointed by the Company), such delivery
being a condition to receipt by the Holder of the Repurchase Price
therefor; provided that such Repurchase Price shall be so paid pursuant to
this Section 5.01 only if the Securities so delivered to the Trustee (or
other Paying Agent appointed by the Company) shall conform in all respects
to the description thereof in the related Repurchase Notice.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 5.01 shall be consummated by the delivery of the consideration to be
received by the Holder promptly following the later of the Repurchase Date and
the time of the book-entry transfer or delivery of the Securities.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Trustee (or other Paying Agent appointed by the Company) the Repurchase
Notice contemplated by this Section 5.01 shall have the right to withdraw such
Repurchase Notice at any time prior to 10:00 a.m., New York City time, on the
Business Day immediately preceding the Repurchase Date by delivery of a written
notice of withdrawal to the Trustee (or other Paying Agent appointed by the
Company) in accordance with Section 5.03 below.
The Trustee (or other Paying Agent appointed by the Company) shall promptly
notify the Company of the receipt by it of any Repurchase Notice or written
notice of withdrawal thereof.
(b) Repurchase Notice. On or before the 20th day after the occurrence of a
Fundamental Change, the Company shall provide to all Holders of record of the
Securities and the Trustee and Paying Agent a notice (the "REPURCHASE NOTICE")
of the occurrence of such Fundamental Change and of the purchase right at the
option of the Holders arising as a result thereof. Such mailing shall be by
first class mail. Simultaneously with providing such Repurchase Notice, the
Company shall publish a notice containing the information included therein once
in a newspaper of general circulation in The City of New York or publish such
information on the Company's website or through such other public medium as the
Company may use at such time.
Each Repurchase Notice shall specify:
(i) the events causing a Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may exercise the purchase right;
(iv) the Repurchase Price;
39
(v) the Repurchase Date (which shall be no earlier than 15 days and
no later than 30 days after the date of the Repurchase Notice);
(vi) the name and address of the Paying Agent and the Conversion
Agent, if applicable;
(vii) if applicable, the applicable Conversion Rate and any
adjustments to the applicable Conversion Rate;
(viii) if applicable, that the Securities with respect to which a
Repurchase Notice has been delivered by a Holder may be converted only if
the Holder withdraws the Repurchase Notice in accordance with Section 5.03;
and
(ix) the procedures that Holders must follow to require the Company to
purchase their Securities.
No failure of the Company to give the foregoing notices and no defect
therein shall limit the Securityholders' purchase rights or affect the validity
of the proceedings for the purchase of the Securities pursuant to this Section
5.01.
(c) No Payment During Events of Default. There shall be no purchase of any
Securities pursuant to this Section 5.01 if there has occurred (prior to, on or
after, as the case may be, the giving, by the Holders of such Securities, of the
required Repurchase Notice) and is continuing an Event of Default (other than a
default that is cured by the payment of the Repurchase Price of the Securities)
and payment of the principal amount of the Securities has been and is
accelerated on account of such Event of Default. The Paying Agent will promptly
return to the respective Holders thereof any Securities (i) with respect to
which a Repurchase Notice has been withdrawn in compliance with this Indenture,
or (ii) held by it during the continuance of an Event of Default (other than a
default that is cured by the payment of the Repurchase Price with respect to
such Securities) in which case, upon such return, the Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.
(d) Payment of Repurchase Price. The Securities to be purchased pursuant to
this Section 5.01 shall be paid for in cash.
Section 5.02 Effect of Repurchase Notice. Upon receipt by the Paying Agent
of the Repurchase Notice specified in Section 5.01(a), the Holder of the
Security in respect of which such Repurchase Notice was given shall (unless such
Repurchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Repurchase Price with respect to
such Security. Such Repurchase Price shall be paid to such Holder, subject to
receipt of funds by the Paying Agent, promptly following the later of (x) the
Repurchase Date with respect to such Security (provided the conditions in
Section 5.01(a) have been satisfied) and (y) the time of book-entry transfer or
the delivery of such Security to the Paying Agent by the Holder thereof in the
manner required by Section 5.01(b).
Section 5.03 Withdrawal of Repurchase Notice.
40
(a) A Repurchase Notice may be withdrawn (in whole or in part) by means of
a written notice of withdrawal delivered to the Paying Agent in accordance with
the Repurchase Notice at any time prior to 10:00 a.m., New York City time, on
the Business Day immediately preceding the Repurchase Date, specifying:
(i) the name of the Holder;
(ii) the Principal Amount of the Securities with respect to which such
notice of withdrawal is being submitted, which must be an integral multiple
of $1,000;
(iii) if Physical Securities have been issued, the certificate numbers
of the withdrawn Securities; and
(iv) the Principal Amount of such Securities that remains subject to
the original Repurchase Notice, which portion must be in Principal Amounts
of $1,000 or a multiple of $1,000;
provided, however, that if Physical Securities have not been issued, the notice
must comply with appropriate procedures of the Depositary.
Section 5.04 Deposit of Repurchase Price. Prior to 10:00 a.m. (local time
in The City of New York) on the Repurchase Date, subject to extension to comply
with applicable law, the Company shall deposit with the Trustee or with the
Paying Agent (or, if the Company or a Subsidiary or an Affiliate of either of
them is acting as the Paying Agent, shall segregate and hold in trust as
provided herein) an amount of money (in immediately available funds if deposited
on such Business Day) sufficient to pay the Repurchase Price, of all the
Securities or portions thereof that are to be purchased as of the Repurchase
Date. The Company shall promptly notify the Trustee in writing of the amount of
any deposits of cash made pursuant to this Section 5.04. If the Paying Agent
holds cash sufficient to pay the Repurchase Price of any Security for which a
Repurchase Notice has been tendered and not withdrawn in accordance with this
Indenture as of the Business Day following the Repurchase Date, then effective
on the Repurchase Date, (a) such Security shall cease to be outstanding and
interest, including Additional Interest, if any, will cease to accrue thereon
(whether or not book-entry transfer of such Security is made or such Security is
delivered to the Paying Agent) and (b) all other rights of the Holder in respect
thereof will terminate (other than the right to receive the Repurchase Price and
previously accrued and unpaid interest, including Additional Interest, if any,
upon delivery or book-entry transfer of such Security, or interest payable on
the related Interest Payment Date, if the Repurchase Date occurs between the
Record Date and such Interest Payment Date, as applicable).
Section 5.05 Securities Purchased in Whole or in Part. Any Security that is
to be purchased, whether in whole or in part, shall be surrendered at the office
of the Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in
41
aggregate Principal Amount equal to, and in exchange for, the portion of the
Principal Amount of the Security so surrendered which is not purchased.
Section 5.06 Covenant to Comply With Securities Laws Upon Purchase of
Securities. In connection with any offer to purchase Securities under Section
5.01 (provided that such offer or purchase constitutes an "issuer tender offer"
for purposes of Rule 13e-4 (which term, as used herein, includes any successor
provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall ERROR! BOOKMARK NOT DEFINED. comply with Rule 13e-4
and Rule 14e-1 under the Exchange Act, ERROR! BOOKMARK NOT DEFINED. file the
related Schedule TO (or any successor schedule, form or report) under the
Exchange Act, and ERROR! BOOKMARK NOT DEFINED. otherwise comply with all federal
and state securities laws so as to permit the rights and obligations under
Section 5.01 to be exercised in the time and in the manner specified in Section
5.01.
Section 5.07 Repayment to the Company. The Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed, together with
interest, including Additional Interest, if any, thereon, held by them for the
payment of the Repurchase Price; provided that to the extent that the aggregate
amount of cash deposited by the Company pursuant to Section 5.04 exceeds the
aggregate Repurchase Price of the Securities or portions thereof which the
Company is obligated to purchase as of the Repurchase Date, then as soon as
practicable following the Repurchase Date, the Trustee or the Paying Agent, as
the case may be, shall return any such excess to the Company.
Section 5.08 Increased Conversion Rate Applicable to Certain Notes
Surrendered in Connection with Make-Whole Fundamental Changes.
Notwithstanding anything herein to the contrary, the Conversion Rate applicable
to each Security that is surrendered for conversion, in accordance with Article
6, at any time during the period (the "MAKE-WHOLE CONVERSION PERIOD") that
begins on, and includes, the date that is thirty (30) calendar days prior to the
date originally announced by the Company as the anticipated effective date of a
Make-Whole Fundamental Change (which anticipated effective date the Company
shall disclose, in good faith, in the written notice, public announcement and
publication referred to in Section 5.08(e)) and ends on, and includes, the date
that is thirty (30) Business Days after the actual effective date of such
Make-Whole Fundamental Change (or, if such Make-Whole Fundamental Change also
constitutes a Fundamental Change, the Repurchase Date applicable to such
Fundamental Change) shall be increased to an amount equal to the Conversion Rate
that would, but for this Section 5.08, otherwise apply to such Security pursuant
to Article 6, plus an amount equal to the Make-Whole Applicable Increase (as
defined below); provided, however, that such increase to the Conversion Rate
shall not apply if such Make-Whole Fundamental Change is announced by the
Company but shall not be consummated.
The additional consideration payable hereunder on account of any Make-Whole
Applicable Increase with respect to a Security surrendered for conversion is
herein referred to as the "Make-Whole Consideration.
(b) As used herein, "MAKE-WHOLE APPLICABLE INCREASE" shall mean, with
respect to a Make-Whole Fundamental Change, the amount, set forth in the
following table, which corresponds to the effective date of such Make-Whole
Fundamental Change (the "EFFECTIVE DATE") and the Applicable Price of such
Make-Whole Fundamental Change:
42
Effective Dates
Applicable May 8, May 15, May 15, May 15, May 15, May 15, May 15, May 15, May 15, May 15,
Price 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016
---------- ------ ------- ------- ------- ------- ------- ------- ------- ------- -------
$40.23 5.7363 5.7363 5.7363 5.7363 5.7363 5.7363 5.7363 5.7363 5.7363 5.7363
$50.00 3.7736 3.5125 3.3804 3.2248 3.0537 2.8587 2.6318 2.3421 1.9257 0.8792
$60.00 3.0629 2.6673 2.5282 2.3625 2.1728 1.9490 1.6784 1.3284 0.8317 0.0000
$70.00 2.4998 2.1272 1.9968 1.8411 1.6614 1.4490 1.1936 0.8741 0.4614 0.0000
$80.00 2.1169 1.7551 1.6378 1.4980 1.3365 1.1468 0.9219 0.6505 0.3280 0.0000
$90.00 1.5649 1.4838 1.3799 1.2564 1.1141 0.9480 0.7537 0.5257 0.2676 0.0000
$100.00 1.3484 1.2771 1.1857 1.0771 0.9523 0.8074 0.6397 0.4463 0.2312 0.0000
$110.00 1.1770 1.1143 1.0338 0.9384 0.8288 0.7021 0.5564 0.3898 0.2046 0.0000
$120.00 1.0377 0.9825 0.9116 0.8274 0.7309 0.6196 0.4918 0.3462 0.1832 0.0000
$130.00 0.9222 0.8736 0.8108 0.7363 0.6510 0.5526 0.4398 0.3109 0.1654 0.0000
$140.00 0.8250 0.7820 0.7263 0.6601 0.5843 0.4969 0.3964 0.2812 0.1501 0.0000
$150.00 0.7420 0.7039 0.6543 0.5953 0.5276 0.4495 0.3595 0.2558 0.1369 0.0000
$160.00 0.6692 0.6365 0.5922 0.5393 0.4787 0.4086 0.3276 0.2338 0.1254 0.0000
provided, however, that:
(i) if the actual Applicable Price of such Make-Whole Fundamental Change is
between two (2) prices listed in the table above under the column titled
"Applicable Price," or if the actual Effective Date of such Make-Whole
Fundamental Change is between two dates listed in the table above in the row
immediately below the title "Effective Date," then the Make-Whole Applicable
Increase for such Make-Whole Fundamental Change shall be determined by linear
interpolation between the Make-Whole Applicable Increases set forth for such two
prices, or for such two dates based on a three hundred and sixty five (365) day
year, as applicable;
(ii) if the actual Applicable Price of such Make-Whole Fundamental Change
is greater than $160 per share (subject to adjustment as provided in Section
5.08(b)(iii)), or if the actual Applicable Price of such Make-Whole Fundamental
Change is less than $40.23 per share (subject to adjustment as provided in
Section 5.08(b)(iii)), then the Make-Whole Applicable Increase shall be equal to
zero (0);
(iii) if an event occurs that requires, pursuant to Article 6, an
adjustment to the Conversion Rate, then, on the date and at the time such
adjustment is so required to be made, each price set forth in the table above
under the column titled "Applicable Price" shall be deemed to be adjusted so
that such price, at and after such time, shall be equal to the product of (1)
such price as in effect immediately before such adjustment to such price and (2)
a fraction whose numerator is the Conversion Rate in effect immediately before
such adjustment to the Conversion Rate and whose denominator is the Conversion
Rate to be in effect, in accordance with Article 6, immediately after such
adjustment to the Conversion Rate;
(iv) each Make-Whole Applicable Increase amount set forth in the table
above shall be adjusted in the same manner in which, and for the same events for
which, the Conversion Rate is to be adjusted pursuant to Sections 6.04, 6.05 and
6.06 of Article 6; and
(v) in no event shall the Conversion Rate applicable to any Security be
increased pursuant to this Section 5.08 to the extent, but only to the extent,
such increase shall cause the Conversion Rate applicable to such Security to
exceed 24.856 shares per $1,000 principal amount (the "MAKE-WHOLE CAP");
provided, however, that the Make-Whole Cap shall be
43
adjusted in the same manner in which, and for the same events for which, the
Conversion Rate is to be adjusted pursuant to Sections 6.04, 6.05 and 6.06 of
Article 6.
(c) As used herein, "APPLICABLE PRICE" shall have the following meaning
with respect to a Make-Whole Fundamental Change: (i) if such Make-Whole
Fundamental Change constitutes a Common Stock Change Make-Whole Fundamental
Change and the consideration (excluding cash payments for fractional shares or
pursuant to statutory appraisal rights) for the Common Stock in such Make-Whole
Fundamental Change consists solely of cash, then the "Applicable Price" with
respect to such Make-Whole Fundamental Change shall be equal to the cash amount
paid per share of Common Stock in such Make-Whole Fundamental Change; (ii) if
such Make-Whole Fundamental Change constitutes an Asset Sale Make-Whole
Fundamental Change and the consideration paid for the property and assets of the
Company consists solely of cash, then the "Applicable Price" with respect to
such Make-Whole Fundamental Change shall be equal to the cash amount paid for
the property and assets of the Company, expressed as an amount per share of
Common Stock outstanding on the Effective Date of such Make-Whole Fundamental
Change; and (iii) in all other circumstances, the "Applicable Price" with
respect to such Make-Whole Fundamental Change shall be equal to the average of
the Last Reported Sale Prices per share of Common Stock for the five (5)
consecutive Trading Days immediately preceding the Effective Date of such
Make-Whole Fundamental Change, which average shall be appropriately adjusted by
the Board of Directors, in its good faith determination (which determination
shall be described in a Board Resolution), to account for any adjustment,
pursuant hereto, to the Conversion Rate that shall become effective, or any
event requiring, pursuant hereto, an adjustment to the Conversion Rate where the
Ex Date of such event occurs, at any time during such five (5) consecutive
Trading Days.
(d) The Make-Whole Consideration due upon a conversion of a Security by a
Holder shall be paid as soon as practicable after the Conversion Date of such
conversion, but in no event later than the third (3rd) Business Day after the
later of (1) the date such Holder surrenders such Security for such conversion
and (2) the Effective Date of the applicable Make-Whole Fundamental Change. The
consideration in which the Make-Whole Consideration is payable shall be
determined in accordance herewith, including, without limitation, in accordance
with Section 6.06, to the extent applicable.
(e) At least thirty (30) calendar days before the anticipated effective
date of each proposed Make-Whole Fundamental Change, the Company shall mail to
each Holder written notice of, and shall publicly announce, through a reputable
national newswire service, the anticipated effective date of such proposed
Make-Whole Fundamental Change. Each such notice and announcement shall also
state that, in connection with such Make-Whole Fundamental Change, the Company
shall increase, in accordance herewith, the Conversion Rate applicable to
Securities entitled as provided herein to such increase (along with a
description of how such increase shall be calculated and the time periods during
which Securities must be surrendered in order to be entitled to such increase).
No later than the third Business Day after the Effective Date of each Make-Whole
Fundamental Change, the Company shall mail written notice of, and shall publicly
announce, through a reputable national newswire service, such Effective Date and
the Make-Whole Applicable Increase applicable to such Make-Whole Fundamental
Change.
44
(f) For avoidance of doubt, the provisions of this Section 5.08 shall not
affect or diminish the Company's obligations, if any, pursuant to Article 4 with
respect to a Make-Whole Fundamental Change.
(g) Nothing in this Section 5.08 shall prevent an adjustment to the
Conversion Rate pursuant to Sections 6.04, 6.05 or 6.06 of Article 6 in respect
of a Make-Whole Fundamental Change.
ARTICLE 6
CONVERSION
Section 6.01 Conversion Events.
(a) Subject to and upon compliance with the provisions of this Indenture,
each Holder shall have the right, at such Holder's option, to convert the
Principal Amount of any such Securities, or any portion of such Principal Amount
which is $1,000 or a multiple of $1,000 thereof, at the Conversion Rate then in
effect, on or after the Issue Date through the close of business on the Business
Day immediately preceding Stated Maturity.
(b) If the Company is party to a transaction described in clause (2) or (3)
of the definition of Fundamental Change, the Company shall notify Holders, in
the manner provided in Section 1.06, at least 20 Scheduled Trading Days prior to
the anticipated effective date for such transaction.
(c) Notwithstanding the foregoing, a Security in respect of which a Holder
has delivered a Repurchase Notice exercising such Holder's option to require the
Company to purchase such Security may be surrendered for conversion only if such
notice of exercise is withdrawn in accordance with Article 5 hereof prior to
10:00 a.m., New York City time, on the Business Day immediately preceding the
Repurchase Date.
Section 6.02 Conversion Procedure.
(a) Each Security shall be convertible at the office of the Conversion
Agent.
(b) In order to exercise the conversion privilege with respect to any
beneficial interest in a Global Security, the Holder must complete the
appropriate instruction form for conversion pursuant to the Depositary's
book-entry conversion program, furnish appropriate endorsements and transfer
documents if required by the Company or the Trustee or Conversion Agent, and pay
the funds, if any, required by Section 6.03(i) and any transfer taxes if
required pursuant to Section 6.06 and the Trustee or Conversion Agent must be
informed of the conversion in accordance with customary practice of the
Depositary. In order to exercise the conversion privilege with respect to any
Securities in certificated form that are not Global Securities, the Holder of
any such Securities to be converted, in whole or in part, shall:
(i) complete and manually sign the conversion notice provided on the
back of the Security (the "CONVERSION NOTICE") or a facsimile of the
conversion notice and deliver such Conversion Notice, which is irrevocable,
to the Conversion Agent;
45
(ii) surrender the Security to the Conversion Agent;
(iii) if required, furnish appropriate endorsements and transfer
documents;
(iv) if required, pay any transfer or similar taxes; and
(v) if required, make any payment required under Section 6.03(i).
The date on which the Holder satisfies all of the applicable requirements
set forth above is the "CONVERSION DATE." The Trustee will, as promptly as
possible, and in any event within two (2) Business Days, provide the Company
with notice of any conversion exercises by Holders of which a Responsible
Officer becomes aware.
(c) Each Conversion Notice shall state the name or names (with address or
addresses) in which any certificate or certificates for shares of Common Stock
which shall be issuable on such conversion shall be issued. All such Securities
surrendered for conversion shall, unless the shares issuable on conversion are
to be issued in the same name as the registration of such Securities, be duly
endorsed by, or be accompanied by instruments of transfer in form satisfactory
to the Company duly executed by, the Holder or his duly authorized attorney.
(d) No later than the third Business Day immediately following the
Conversion Date, subject to compliance with any restrictions on transfer if
shares issuable on conversion are to be issued in a name other than that of the
Holder (as if such transfer were a transfer of the Securities (or portion
thereof) so converted), the Company shall issue and shall deliver to such Holder
at the office of the Conversion Agent, a certificate or certificates for the
number of full shares of Common Stock issuable in accordance with the provisions
of this Article 6. In case any Securities of a denomination greater than $1,000
shall be surrendered for partial conversion, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of the Securities so
surrendered, without charge to him, new Securities in authorized denominations
in an aggregate Principal Amount equal to the unconverted portion of the
surrendered Securities.
Each conversion shall be deemed to have been effected as to any such
Securities (or portion thereof) on the date on which the requirements set forth
above in this Section 6.02 have been satisfied as to such Securities (or portion
thereof), and the person in whose name any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed to
have become on said date the holder of record of the shares represented thereby;
provided, however, that in case of any such surrender on any date when the stock
transfer books of the Company shall be closed, the person or persons in whose
name the certificate or certificates for such shares are to be issued shall be
deemed to have become the record holder thereof for all purposes on the next day
on which such stock transfer books are open, but such conversion shall be at the
Conversion Rate in effect on the related Conversion Date; provided, further,
that a Holder receiving shares of Common Stock upon conversion will not be
entitled to any rights as a holder of Common Stock, including, among other
things, the right to vote and receive dividends and notices of stockholder
meetings, until the close of business on the Conversion Date.
(e) Upon the conversion of an interest in Global Securities, the Trustee
(or other Conversion Agent appointed by the Company) shall make a notation on
such Global Securities
46
as to the reduction in the Principal Amount represented thereby. The Company
shall notify the Trustee in writing of any conversions of Securities effected
through any Conversion Agent other than the Trustee.
(f) Each stock certificate representing Common Stock issued upon conversion
of the Securities that are Restricted Securities shall bear the legend in
substantially the form of Exhibit A hereto.
Section 6.03 Payments Upon Conversion.
(a) Subject to clauses (c) and (d) and below, upon conversion, Holders
shall not receive any separate cash payment for accrued and unpaid interest,
including Additional Interest, if any, unless such conversion occurs between a
Record Date and the Interest Payment Date to which it relates.
(b) If Securities are converted after 5:00 p.m., New York City time, on a
regular Record Date for the payment of interest, Holders of such Securities at
5:00 p.m., New York City time, on such Record Date will receive the interest and
Additional Interest, if any, payable on such Securities on the corresponding
Interest Payment Date notwithstanding the conversion. Securities surrendered for
conversion during the period from 5:00 p.m., New York City time, on any Record
Date to 9:00 a.m., New York City time, on the immediately following Interest
Payment Date, must be accompanied by funds equal to the amount of interest and
Additional Interest, if any, payable on the Securities so converted; provided
that no such payment need be made (i) for conversions following the Record Date
immediately preceding the Stated Maturity; (ii) if the Company has specified a
Repurchase Date that is after a Record Date and on or prior to the third Trading
Day after the corresponding Interest Payment Date; or (iii) to the extent of any
overdue interest, if any overdue interest exists at the time of conversion with
respect to such Security.
(c) If a Holder converts some or all of its Securities into Common Stock
when there exists a Registration Default under the Registration Rights Agreement
with respect to the Common Stock, Additional Interest will cease to accrue on
such Securities. Such Holder will receive, no later than the third Business Day
following the Conversion Date, all accrued and unpaid Additional Interest to the
Conversion Date.
(d) The Company shall not issue fractional shares of Common Stock upon
conversion of Securities. If multiple Securities shall be surrendered for
conversion at one time by the same Holder, the number of full shares which shall
be issuable upon conversion shall be computed on the basis of the aggregate
Principal Amount of the Securities (or specified portions thereof to the extent
permitted hereby) so surrendered. If any fractional share of stock would be
issuable upon the conversion of any Securities, the Company shall make payment
therefor in cash in lieu of fractional shares of Common Stock based on the
closing price of the Common Stock on the Trading Day prior to the applicable
Conversion Date.
(e) For purposes of this Section 6.03, and notwithstanding the definitions
contained in Section 1.01, "TRADING DAY" means a day on which (i) there is no
Market Disruption Event and (ii) trading in securities generally occurs on the
New York Stock Exchange or, if the
47
Common Stock is not then listed on the New York Stock Exchange, on the principal
other U.S. national or regional securities exchange on which the Common Stock is
then listed or, if the Common Stock is not then listed on a U.S. national or
regional securities exchange, on the principal other market on which the Common
Stock is then traded. If the Common Stock is not so listed or quoted, "Trading
Day" means a Business Day.
(f) The Company's delivery to a Holder of the full number of shares of
Common Stock into which a Security is convertible, together with any cash
payment for any fractional share, into which a Security is convertible, will be
deemed to satisfy in full the Company's obligation to pay (i) the Principal
Amount of such Security; and (ii) accrued and unpaid interest and Additional
Interest, if any, to, but not including, the Conversion Date. As a result,
accrued and unpaid interest and Additional Interest, if any, to, but not
including, the Conversion Date will be deemed to be paid in full rather than
cancelled, extinguished or forfeited.
Section 6.04 Adjustment of Conversion Rate. The Conversion Rate shall be
adjusted from time to time by the Company if any of the following events occurs,
except that the Company will not make any adjustment if Holders of Securities
participate, as a result of holding the Securities, in the transactions
described below without having to convert their Securities.
(a) If the Company, at any time or from time to time while any of the
Securities are outstanding, exclusively issues shares of Common Stock as a
dividend or distribution on shares of Common Stock, or if the Company effects a
share split or share combination, then the Conversion Rate will be adjusted
based on the following formula:
OS'
CR' = CR(0) x -----
OS(0)
where
CR' = the Conversion Rate in effect immediately after the applicable
Ex-Dividend Date or effective date;
CR(0) = the Conversion Rate in effect immediately prior to the Ex-Dividend
Date of such dividend or distribution, or the effective date of
such share split or share combination, as applicable;
OS' = the number of shares of Common Stock outstanding prior to such
Ex-Dividend Date or effective date immediately after giving effect
to such dividend, distribution, share split or share combination;
and
OS(0) = the number of shares of Common Stock outstanding immediately prior
to such Ex-Dividend Date or effective date.
Such adjustment shall become effective immediately after the opening of business
on the day following the record date for such dividend or distribution, or the
date fixed for determination for such share split or share combination. If any
dividend or distribution of the type described in this Section 6.04(a) is
declared but not so paid or made, the Conversion Rate shall again be adjusted
48
to the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared.
(b) If the Company, at any time or from time to time while any of the
Securities are outstanding, issues to all or substantially all holders of Common
Stock any rights or warrants entitling them for a period of not more than 60
calendar days to subscribe for or purchase shares of Common Stock at a price per
share (or having a conversion, exchange or exercise price per share) less than
the average of the Last Reported Sale Prices of Common Stock for the 10
consecutive Trading Day period ending on the Business Day immediately preceding
the date of announcement of such issuance, the Conversion Rate shall be adjusted
based on the following formula (provided, that the Conversion Rate will be
readjusted to the extent such rights or warrants are not exercised prior to
their expiration):
OS(0) + X
CR' = CR(0)x ---------
OS(0) + Y
where
CR' = the Conversion Rate in effect immediately after the Ex-Dividend
Date for such issuance;
CR(0) = the Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such issuance;
OS(0) = the number of shares of Common Stock outstanding immediately after
such Ex-Dividend Date;
X = the total number of shares of Common Stock issuable pursuant to
such rights or warrants; and
Y = the number of shares of Common Stock equal to the aggregate price
payable to exercise such rights or warrants (or the aggregate
conversion, exchange or exercise price per share) divided by the
average of the Last Reported Sale Prices of Common Stock for the 10
consecutive Trading Day period ending on the Trading Day
immediately preceding the date of announcement of the issuance of
such rights or warrants.
To the extent such rights or warrants are not exercised prior to their
expiration or termination, the Conversion Rate shall be readjusted to the
Conversion Rate which would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on the basis of the delivery of
only the number of shares of Common Stock actually delivered. In the event that
such rights or warrants are not so issued, the Conversion Rate shall again be
adjusted to be the Conversion Rate which would then be in effect if the date
fixed for the determination of stockholders entitled to receive such rights or
warrants had not been fixed. In determining whether any rights or warrants
entitle the holders to subscribe for or purchase shares of Common Stock at less
than the average of the Last Reported Sale Prices of Common Stock for the 10
consecutive Trading Day period ending on the Business Day immediately preceding
the
49
date of announcement of such issuance, and in determining the aggregate offering
price of such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants and the value of such
consideration, if other than cash, as shall be determined in good faith by the
Board of Directors of the Company.
For the purposes of this Section 6.04(b), rights or warrants distributed by
the Company to all holders of Common Stock entitling them to subscribe for or
purchase shares of the Company's capital stock (either initially or under
certain circumstances), which rights or warrants, until the occurrence of a
specified event or events (a "TRIGGER EVENT"): (1) are deemed to be transferred
with such shares of Common Stock; (2) are not exercisable; and (3) are also
issued in respect of future issuances of Common Stock, shall be deemed not to
have been distributed for purposes of this Section 6.04(b), (and no adjustment
to the Conversion Rate under this Section 6.04(b) will be required) until the
occurrence of the earliest Trigger Event, whereupon such rights and warrants
shall be deemed to have been distributed and an appropriate adjustment (if any
is required) to the Conversion Rate shall be made under this Section 6.04(b). If
any such right or warrant, including any such existing rights or warrants
distributed prior to the date of this Indenture, are subject to events, upon the
occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of Indebtedness or other assets, then the date
of the occurrence of any and each such event shall be deemed to be the date of
distribution and record date with respect to new rights or warrants with such
rights (and a termination or expiration of the existing rights or warrants
without exercise by any of the holders thereof). In addition, in the event of
any distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section 6.04(b)
was made, (1) in the case of any such rights or warrants which shall all have
been redeemed or purchased without exercise by any Holders thereof, the
Conversion Rate shall be readjusted upon such final purchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were a cash
distribution, equal to the per share redemption or purchase price received by a
holder of Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all applicable holders of
Common Stock as of the date of such redemption or purchase, and (2) in the case
of such rights or warrants which shall have expired or been terminated without
exercise by any holders thereof, the Conversion Rate shall be readjusted as if
such rights and warrants had not been issued.
(c) If the Company, at any time or from time to time while the Securities
are outstanding, distributes shares of any class of Capital Stock of the
Company, evidences of Indebtedness or other assets or property of the Company,
or warrants or rights to subscribe for or purchase securities, to all or
substantially all holders of its Common Stock, excluding:
(i) dividends or distributions referred to in Section 6.04(a);
(ii) rights or warrants referred to in Section 6.04(b);
(iii) dividends or distributions paid exclusively in cash; and
50
(iv) Spin-Offs (as defined below) to which the provisions set forth
below in this clause 6.04(c) shall apply;
then the Conversion Rate will be adjusted based on the following formula:
SP(0)
CR' = CR(0)x -----------
SP(0) - FMV
where
CR' = the Conversion Rate in effect immediately after the Ex-Dividend
Date for such distribution;
CR(0) = the Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such distribution;
SP(0) = the average of the Last Reported Sale Prices of the Common Stock
over the 10 consecutive Trading Day period ending on the Trading
Day immediately preceding the Ex-Dividend Date for such
distribution; and
FMV = the Fair Market Value (as determined by the Board of Directors of
the Company) of the shares of Capital Stock, evidences of
Indebtedness, assets, property, warrants or rights distributed
with respect to one share of the Common Stock on the Record Date
for such distribution.
Such adjustment shall become effective immediately prior to the opening of
business on the day following the record date for such distribution. If the
Board of Directors of the Company determines the Fair Market Value of any
distribution for purposes of this Section 6.04(c) by reference to the actual or
when issued trading market for any securities, it must in doing so consider the
prices in such market over the same period used in computing the average of the
Last Reported Sale Prices of the Common Stock.
With respect to an adjustment pursuant to this Section 6.04(c) where there
has been a payment of a dividend or other distribution on the Common Stock of
shares of Capital Stock of any class or series, or similar equity interest, of
or relating to a Subsidiary or other business unit of the Company (a
"SPIN-OFF"), the Conversion Rate in effect immediately before 5:00 p.m., New
York City time, on the effective date of the Spin-Off shall be increased based
on the following formula:
FMV(0) + MP(0)
CR' = CR(0) x --------------
MP(0)
where
CR' = the Conversion Rate in effect immediately after the effective date
of the adjustment;
51
CR(0) = the Conversion Rate in effect immediately prior to the effective
date of the adjustment;
FMV(0) = the average of the Last Reported Sale Prices of the Capital Stock
or similar equity interest distributed to holders of Common Stock
applicable to one share of Common Stock over the first ten
consecutive Trading Day period after, and including, the effective
date of the Spin-Off; and
MP(0) = the average of the Last Reported Sale Prices of Common Stock over
the first ten consecutive Trading Day period after, and including,
the effective date of the Spin-Off.
The adjustment to the Conversion Rate under the preceding paragraph will
occur on the tenth Trading Day from, and including, the effective date of the
Spin-Off; provided that in respect of any conversion within the 10 Trading Days
immediately following, and including, the effective date of any Spin-Off,
references within this Section 6.04(c) to "10 Trading days" shall be deemed
replaced with such lesser number of Trading Days as have elapsed between the
effective date of such Spin-Off and the Conversion Date in determining the
applicable Conversion Rate.
(d) If any cash dividend or other distribution is made to all or
substantially all holders of Common Stock, the Conversion Rate shall be adjusted
based on the following formula:
SP(0)
CR' = CR(0) x ---------
SP(0) - C
where
CR' = the Conversion Rate in effect immediately after the Ex-Dividend
Date for such dividend or distribution;
CR(0) = the Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such dividend or distribution;
SP(0) = the average of the Last Reported Sale Prices of the Common Stock
over the ten consecutive Trading Day period ending on the Trading
Day immediately preceding the Ex-Dividend Date for such dividend;
and
C = the amount in cash per share the Company distributes to holders of
Common Stock.
(e) If the Company or any Subsidiary makes a payment in respect of a tender
offer or exchange offer for Common Stock, to the extent that the cash and value
of any other consideration included in the payment per share of Common Stock
exceeds the Last Reported Sale Price per share of Common Stock on the Trading
Day next succeeding the last date on which tenders or exchanges may be made
pursuant to such tender or exchange offer, the Conversion Rate shall be
increased based on the following formula:
52
AC + (SP' x OS')
CR' = CR(0) x ----------------
OS(0) x SP'
where
CR' = the Conversion Rate in effect immediately after the effective date
of the adjustment;
CR(0) = the Conversion Rate in effect immediately prior to the effective
date of the adjustment;
AC = the aggregate value of all cash and any other consideration (as
determined by the Board of Directors) paid or payable for shares
purchased in such tender or exchange offer;
SP' = the average of the Last Reported Sale Prices of Common Stock over
the 10 consecutive Trading Day period commencing on the Trading Day
next succeeding the date such tender or exchange offer expires;
OS' = the number of shares of Common Stock outstanding immediately after
the date such tender or exchange offer expires (excluding any
shares validly tendered or exchanged pursuant to such tender or
exchange offer); and
OS(0) = the number of shares of Common Stock outstanding immediately prior
to the date such tender or exchange offer expires.
The adjustment to the Conversion Rate under this Section 6.04(e) shall occur on
the tenth Trading Day from, and including, the Trading Day next succeeding the
date such tender or exchange offer expires; provided that in respect of any
conversion within the 10 Trading Days beginning on the Trading Day next
succeeding the date the tender or exchange offer expires, references within this
Section 6.04(e) to "10 Trading Days" shall be deemed replaced with such lesser
number of Trading Days as have elapsed between the Trading Day next succeeding
the date the tender or exchange offer expires and the Conversion Date in
determining the applicable Conversion Rate.
If the Company is obligated to purchase shares pursuant to any such tender
or exchange offer, but the Company is permanently prevented by applicable law
from effecting any such purchases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such tender or exchange had not been made.
(f) No adjustment to the Conversion Rate will be required unless the
adjustment would require an increase or decrease of at least 1% of the
Conversion Rate. If the adjustment is not made because the adjustment does not
change the Conversion Rate by at least 1%, then the adjustment that is not made
will be carried forward and taken into account in any future adjustment. All
required calculations will be made to the nearest cent or 1/1000th of a share of
Common Stock, as the case may be.
53
(g) As used in this Section 6.04, "EX-DIVIDEND DATE" shall mean the first
date on which the shares of the Common Stock trade on the applicable exchange or
in the applicable market, regular way, without the right to receive the issuance
or distribution in question.
(h) For purposes of this Section 6.04, "RECORD DATE" shall mean, with
respect to any dividend, distribution or other transaction or event in which the
holders of Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is
exchanged for or converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders entitled to receive
such cash, securities or other property (whether such date is fixed by the Board
of Directors or by statute, contract or otherwise).
(i) Subject to any applicable listing standards, the Company from time to
time may increase the Conversion Rate by any amount for a period of at least 20
days if the Board of Directors shall have made a determination that such
increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to this
Section 6.04(i), the Company shall mail to Holders of record of the Securities a
notice of the increase at least 15 days prior to the date the increased
Conversion Rate takes effect, and such notice shall state the increased
Conversion Rate and the period during which it will be in effect.
(j) Subject to any applicable listing standards, the Company may (but is
not required to) make such increases in the Conversion Rate, in addition to any
adjustments required by Sections 6.04(a), 6.04(b), 6.04(c), 6.04(d), 6.04(e) or
6.04(i), as the Board of Directors considers to be advisable to avoid or
diminish income tax to holders of Common Stock or rights to purchase shares of
Common Stock in connection with any dividend or distribution of shares (or
rights to acquire shares) or from any event treated as such for income tax
purposes.
(k) All calculations under this Article 6 shall be made by the Company. No
adjustment shall be made for the Company's issuance of Common Stock or
securities convertible into or exchangeable for shares of Common Stock or rights
to purchase Common Stock or convertible or exchangeable securities, other than
as provided in this Section 6.04.
(l) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent an
Officers' Certificate setting forth the Conversion Rate after such adjustment
and setting forth a brief statement of the facts requiring such adjustment.
Unless and until a Responsible Officer of the Trustee shall have received such
Officers' Certificate, the Trustee shall not be deemed to have knowledge of any
adjustment of the Conversion Rate and may assume without inquiry that the last
Conversion Rate of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and
the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to each Securityholder at such
Holder's last address appearing on the list of Securityholders provided for in
Section 3.06, within 20 days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of any such adjustment.
54
(m) For purposes of this Section 6.04, the number of shares of Common Stock
at any time outstanding shall not include shares held in the treasury of the
Company so long as the Company does not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the Company, but
shall include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock.
(n) No adjustment to the Conversion Rate shall be made pursuant to this
Section 6.04 if the Holders of the Securities may participate in the transaction
(based on the Conversion Rate) that would otherwise give rise to an adjustment
pursuant to this Section 6.04 without having to convert their Securities.
(o) Notwithstanding the foregoing, if the application of the foregoing
formulas would result in a decrease in the Conversion Rate (other than as a
result of a stock split or a stock dividend), no adjustment to the Conversion
Rate shall be made.
(p) Notwithstanding anything to the contrary in this Article 6, no
adjustment to the Conversion Rate shall be made:
(i) for a change in the par value of the Common Stock;
(ii) for accrued and unpaid interest, including Additional Interest,
if any; or
(iii) for the avoidance of doubt, for the issuance of Common Stock by
the Company (other than to all or substantially all holders of Common Stock) or
the payment of cash by the Company upon conversion or repurchase of Securities.
Section 6.05 Adjustments of Average Prices. Whenever a provision of this
Indenture requires the calculation of an average of Last Reported Sale Prices
over a span of multiple days, the Company shall make appropriate adjustments to
account for any adjustment to the Conversion Rate that becomes effective, or any
event requiring an adjustment to the Conversion Rate that becomes effective, or
any event requiring an adjustment to the Conversion Rate where the Ex-Dividend
Date of the event occurs, at any time during the period from which the average
is to be calculated.
Section 6.06 Effect of Recapitalization, Reclassification, Consolidation,
Merger or Sale. If any of the following events occur:
(i) any recapitalization, 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 6.04(c));
(ii) any consolidation, 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 recapitalization,
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
55
(iii) any sale, lease or other transfer of all or substantially all of
the consolidated properties and assets of the Company and its Subsidiaries
to any other Person or any statutory share exchange;
in each case of clauses (i) - (iii) as a result of which holders of Common
Stock shall be entitled to receive stock, other securities or other
property or assets (including cash or any combination of the foregoing)
with respect to or in exchange for such Common Stock,
then at the effective time of such transaction, the Company or the successor or
purchasing person, as the case may be, shall execute with the Trustee a
supplemental indenture (which shall comply with the Trust Indenture Act as in
force at the date of execution of such supplemental indenture) providing that
the Securities that are not repurchased pursuant to Article 5, if any, shall be
convertible, per $1,000 principal amount, into the kind and amount of shares of
stock, other securities or other property or assets (including cash or any
combination thereof) receivable upon such recapitalization, reclassification,
change, consolidation, merger, combination, sale, lease or other transfer by a
holder of a number of shares of Common Stock equal to the Conversion Rate
immediately prior to such recapitalization, reclassification, change,
consolidation, merger, combination, sale, lease or other transfer (the
"REFERENCE PROPERTY"). If the transaction causes Common Stock to be converted
into the right to receive more than a single type of consideration (determined
based in part upon any form of stockholder election), then the Company shall
make adequate provision to give Holders, treated as a single class, a reasonable
opportunity to elect the form of such consideration for purposes of determining
the composition of the Reference Property. The Company shall not become a party
to any such transaction unless its terms are consistent with this Section 6.06.
Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 6.06. If, in the case of any such recapitalization, reclassification,
change, consolidation, merger, combination, sale, lease or other transfer, the
Reference Property receivable thereupon by a holder of Common Stock includes
shares of stock, other securities or other property or assets (including cash or
any combination thereof) of a corporation other than the successor or purchasing
corporation, as the case may be, in such reclassification, change,
consolidation, merger, combination, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such additional provisions to protect the interests of the Holders of the
Securities as the Board of Directors shall reasonably consider necessary by
reason of the foregoing.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the register of the Securities maintained by the Security Registrar,
within 20 days after execution thereof. Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture. The above
provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances. If this Section 6.06 applies to any event or occurrence, Section
6.04 shall not apply.
Section 6.07 Taxes on Shares Issued. Any issue of stock certificates on
conversions of Securities shall be made without charge to the converting Holder
for any documentary, transfer, stamp or any similar tax in respect of the issue
thereof, and the Company shall pay any and all documentary, stamp or similar
issue or transfer taxes that may be payable in respect of the issue
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or delivery of shares of Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any such tax which
may be payable in respect of any transfer involved in the issue and delivery of
stock in any name other than that of the Holder of any Securities converted, and
the Company shall not be required to issue or deliver any such stock certificate
unless and until the person or persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 6.08 Reservation of Shares; Shares to be Fully Paid; Compliance
With Governmental Requirements; Listing of Common Stock. The Company shall
provide, free from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, sufficient shares of Common Stock to provide for the
conversion of the Securities from time to time as such Securities are presented
for conversion (assuming that, at the time of the computation of such number of
shares or securities, all such Securities would be held by a single Holder).
Before taking any action that would cause an adjustment increasing the
Conversion Rate to an amount that would cause the Conversion Price to be reduced
below the then par value, if any, of the shares of Common Stock issuable upon
conversion of the Securities, the Company will take all corporate action which
may, in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue shares of such Common Stock at such adjusted
Conversion Price.
The Company covenants that all shares of Common Stock that may be issued
upon conversion of Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and non-assessable and
shall be free from preemptive rights and free from any tax, lien or charge
(other than those created by the Holder).
The Company shall use its reasonable efforts to list or cause to have
quoted any shares of Common Stock to be issued upon conversion of Securities on
each national securities exchange or over-the-counter or other domestic market
on which the Common Stock is then listed or quoted.
Section 6.09 Responsibility of Trustee. The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to
any Securityholder to determine the Conversion Rate or whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any other
Conversion Agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Securities; and the Trustee and any other Conversion Agent make no
representations with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of any Securities for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Article 6. Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to
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determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 6.06 relating either to the kind or
amount of shares of stock or securities or property (including cash or any
combination thereof) receivable by Holders upon the conversion of their
Securities after any event referred to in such Section 6.06 or to any adjustment
to be made with respect thereto, but, subject to the provisions of Section
11.01, may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, the Officers' Certificate
(which the Company shall be obligated to file with the Trustee prior to the
execution of any such supplemental indenture) with respect thereto.
Section 6.10 Notice to Holders Prior to Certain Actions. In case:
(a) the Company shall declare a dividend (or any other distribution) on its
Common Stock that would require an adjustment in the Conversion Rate pursuant to
Section 6.04; or
(b) the Company shall authorize the granting to the holders of all of its
Common Stock of rights or warrants to subscribe for or purchase any share of any
class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock of the
Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale, lease or transfer of all or substantially all of the
assets of the Company or any of its Significant Subsidiaries; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company or any of its Significant Subsidiaries;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent and to be mailed to each Securityholder at such Holder's
address appearing on the list of Securityholders provided for in Section 3.06 of
this Indenture, as promptly as practicable but in any event at least 15 days
prior to the applicable date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, lease, transfer,
dissolution, liquidation or winding up is expected to become effective or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
Section 6.11 Stockholder Rights Plan. Each share of Common Stock issued
upon conversion of Securities pursuant to this Article 6 shall be entitled to
receive the appropriate number of rights, if any, and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as may be provided by the terms of any
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stockholder rights plan adopted by the Company, as the same may be amended from
time to time. If at the time of conversion, however, the rights have separated
from the shares of Common Stock in accordance with the provisions of the
applicable stockholder rights agreement so that the Holders of the Securities
would not be entitled to receive any rights in respect of Common Stock issuable
upon conversion of the Securities, the Conversion Rate will be adjusted at the
time of separation as if the Company has distributed to all holders of Common
Stock, shares of Capital Stock of the Company, evidence of indebtedness or
assets as provided in Section 6.04(c), subject to readjustment in the event of
the expiration, termination or redemption of such rights.
Section 6.12 Adjustment To The Conversion Rate On May 9, 2008.
(a) If the arithmetic average of the daily "Volume Weighted Average Price"
per share of Common Stock for each of the thirty (30) consecutive Trading Days
ending on May 9, 2008 is less than the "Floor Price," the Conversion Rate shall
be increased such that the Conversion Price as increased would represent the
greater of (1) 130% of such arithmetic average of the daily Volume Weighted
Average Price and (2) the Floor Price. This adjustment to the Conversion Rate
shall become effective as of the open of business on May 9, 2008 or, if that
date is not a business day, the next business day. However, the Conversion Price
shall not be adjusted as described above if doing so would result in a
Conversion Price that is greater than the Conversion Price that would have
otherwise been in effect on May 9, 2008.
(b) Subject to any applicable listing standards, the Floor Price and the
Volume-Weighted Average Price shall be adjusted in accordance with the
adjustments to the Conversion Rate described under Section 6.04. No adjustment
to the Floor Price or the Volume-Weighted Average Price shall, however, be made
as a result of adjustments to the Conversion Rate described under Section 5.08.
(c) The "Volume-Weighted Average Price" per share of the Common Stock on a
Trading Day is the volume-weighted average price per share of the Common Stock
on the American Stock Exchange or, if the Common Stock is not then listed on the
American Stock Exchange, on the principal exchange or over-the-counter market on
which the Common Stock is then listed or traded, from 9:30 a.m. to 4:00 p.m.,
New York City time, on that Trading Day, as displayed by Bloomberg. If such
price is not available, the Volume-Weighted Average Price means the market value
per share of the Common Stock on such day as determined by a nationally
recognized investment banking firm retained for this purpose by the Company. The
provisions of Section 6.5 shall apply to the calculation of the Volume-Weighted
Average Price hereunder.
(d) The "Floor Price" shall initially mean the Last Reported Sale Price per
share of the Common Stock on the date of the Purchase Agreements.
(e) The Company shall notify the Trustee, and the Holders in the manner
provided in Section 1.06, of any adjustment in the Conversion Rate under this
Section 6.12.
Section 6.13 Company Determination Final. Any determination that the
Company or its Board of Directors must make pursuant to this Article 6 shall be
conclusive if made in good
59
faith and in accordance with the provisions of this Article 6, absent manifest
error, and set forth in a Board Resolution.
ARTICLE 7
REDEMPTION OF SECURITIES
The Securities are not redeemable at the Company's election prior to Stated
Maturity.
ARTICLE 8
EVENTS OF DEFAULT; REMEDIES
Section 8.01 Events of Default. "EVENT OF DEFAULT," wherever used herein,
means any one of the following events:
(a) default in the payment of interest, including any Additional Interest
(as required by the Registration Rights Agreement), on any Security when due and
payable and the default continues for a period of 30 days;
(b) default in the payment of the Principal Amount of any Security when due
and payable at Stated Maturity, upon required repurchase upon a Fundamental
Changeor Termination of Trading, upon declaration or otherwise;
(c) failure by the Company to comply with its obligation to convert the
Securities upon exercise of a Holder's conversion right in accordance with
Article 6 hereof, and such failure continues for a period of ten Trading Days;
(d) failure by the Company to give a Repurchase Notice or notice to Holders
required pursuant to Section 6.01(b), in each case on the date such notice is
due;
(e) failure by the Company to comply with its obligations in Article 10;
(f) default in the observance or performance of any covenant of the Company
in the Securities or this Indenture, and such default continues for a period of
60 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in Principal Amount of the Outstanding Securities a written notice, in
each case received by the Company (and the Trustee, if applicable), specifying
such default and requiring it to be remedied and stating that such notice is a
"NOTICE OF DEFAULT" hereunder;
(g) default by the Company or any Subsidiary with respect to any mortgage,
agreement or other instrument which results in the acceleration of maturity, in
each case of any indebtedness for money borrowed in excess of $25 million in the
aggregate of the Company and/or any such Subsidiary, whether such indebtedness
now exists or is hereafter created (i) resulting in such indebtedness becoming
or being declared due and payable and such acceleration shall not have been
rescinded or annulled within 20 days after written notice of such acceleration
shall have been received by the Company; or (ii) constituting a failure to pay
the
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principal or interest of any such debt when due and payable at its stated
maturity, upon required repurchase, upon declaration or otherwise;
(h) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law ("Bankruptcy Law"), (ii) a decree or order
adjudging the Company or a Significant Subsidiary of the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company under any
applicable federal or state law or (iii) appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or of a Significant Subsidiary of the Company of substantially all of
its property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 90 consecutive days;
(i) the commencement by the Company or by a Significant Subsidiary of the
Company of a voluntary case or proceeding under any Bankruptcy Law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect of the
Company or of a Significant Subsidiary of the Company in an involuntary case or
proceeding under any Bankruptcy Law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under any applicable federal
or state law, or the consent by it to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the Company or of a
Significant Subsidiary of the Company or of substantially all of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company or by a Significant
Subsidiary of the Company in furtherance of any such action; or
(j) a final judgment for the payment of $25 million or more (excluding any
amounts covered by insurance) rendered against the Company or any Significant
Subsidiary, which judgment is not discharged or stayed within 90 days after (i)
the date on which the right to appeal thereof has expired if no such appeal has
commenced, or (ii) the date on which all rights to appeal have been
extinguished.
Section 8.02 Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default (other than those specified in Section 8.01(h)
and Section 8.01(i)) occurs and is continuing, then and in every such case the
Trustee or the Holders of not less than 25% in aggregate Principal Amount of the
Outstanding Securities may (and the Trustee upon request of such Holders shall)
declare 100% of the Principal Amount plus accrued and unpaid interest, including
Additional Interest, on all the Outstanding Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such Principal Amount plus accrued
and unpaid interest, including Additional Interest, shall become immediately due
and payable.
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Notwithstanding the foregoing, in the case of an Event of Default specified
in Section 8.01(h) or Section 8.01(i)), the 100% of Principal Amount plus
accrued and unpaid interest, including Additional Interest, on all Outstanding
Securities will ipso facto become due and payable immediately without any
declaration or other act on the part of the Trustee or any Holder.
Notwithstanding the foregoing, to the extent elected by the Company, the
sole remedy for an Event of Default relating to the failure of the Company to
file any documents or reports that the Company is required to file with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act and for any
failure to comply with the requirements of Section 314(a)(1) of the Trust
Indenture Act or of the covenants made in Sections 4.04 and 4.06, shall, for the
first 60 days after the occurrence of such an Event of Default, consist
exclusively of the right to receive Additional Interest on the Securities equal
to 0.25% of the Principal Amount of the Securities. Such Additional Interest
shall be in addition to any Additional Interest that may accrue as a result of a
default under the Registration Rights Agreement. If the Company so elects, such
Additional Interest will be payable on all Outstanding Securities from and
including the date on which such Event of Default first occurs to but not
including the 60th day thereafter (or such earlier date on which the Event of
Default relating to the Company's reporting obligations shall have been cured or
waived). On the 60th day after such Event of Default (or earlier, if the Event
of Default relating to the reporting obligations is not cured or waived prior to
such 60th day, such Additional Interest shall cease to accrue and, if such Event
of Default has not been cured or waiver prior to such 60th day, the Securities
will be subject to acceleration as provided above. The provisions of this
paragraph shall not affect the rights of Holders of Securities in the event of
the occurrence of any other Event of Default. If the Company does not elect to
pay the Additional Interest upon an Event of Default in accordance with this
paragraph, the Securities will be subject to acceleration as provided above.
In order to elect to pay the Additional Interest as the sole remedy during
the first 60 days after the occurrence of an Event of Default relating to the
Company's failure to comply with its reporting obligations in accordance with
the immediately preceding paragraph, the Company must notify all Holders of
Securities and the Trustee and Paying Agent of such election. Upon the Company's
failure to give such notice or pay the Additional Interest, the Securities will
be immediately subject to acceleration as provided above.
(b) At any time after such a declaration of acceleration has been made, the
Holders of a majority in aggregate Principal Amount of the Outstanding
Securities, by written notice to the Company and the Trustee, may waive all past
Defaults and rescind and annul such declaration with respect to the Securities
and its consequences (other than with respect to an Event of Default under
Section 8.01(a) or Section 8.01(b)) if:
(i) such rescission and annulment will not conflict with any judgment
or decree of a court of competent jurisdiction; and
(ii) all Events of Default, other than the non-payment of the
Principal Amount plus accrued and unpaid interest, including Additional
Interest, on Securities that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 8.12.
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No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 8.03 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if a Default is made in the payment of the
Principal Amount plus accrued and unpaid interest, including Additional
Interest, at the Maturity thereof or in the payment of the Repurchase Price in
respect of any Security, the Company will, upon demand of the Trustee, pay to
it, for the benefit of the Holders of such Securities, the whole amount then due
and payable on such Securities, and, in addition thereto, such further amounts
required pursuant to Section 8.07.
If an Event of Default occurs and is continuing, the Trustee may, but shall
not be obligated to, pursue any available remedy to collect the payment of the
Principal Amount plus accrued but unpaid interest, including Additional
Interest, on the Securities or to enforce the performance of any provision of
the Securities or this Indenture. The Trustee may maintain a proceeding even if
the Trustee does not possess any of the Securities or does not produce any of
the Securities in the proceeding. A delay or omission by the Trustee or any
Holder in exercising any right or remedy accruing upon an Event of Default shall
not impair the right or remedy or constitute a waiver of, or acquiescence in,
the Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 8.04 Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
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 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 11.07.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder 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 8.05 Application of Money and Property Collected. Any money and
property collected by the Trustee pursuant to this Article shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money or property to Holders, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
11.07;
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SECOND: To the holders of Senior Indebtedness in accordance herewith;
THIRD: To the payment of the amounts then due and unpaid on the
Securities for the Principal Amount, Repurchase Price or interest,
including Additional Interest, as the case may be, in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
Section 8.06 Limitation on Suits. No Holder of any Security shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities, or for the appointment of a receiver or trustee, or
for any other remedy hereunder (other than in the case of an Event of Default
specified in Section 8.01(a) or Section 8.01(b)), unless:
(i) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(ii) the Holders of not less than 25% in aggregate Principal Amount of
the Outstanding Securities shall have made written request to the Trustee
to pursue such remedy in its own name as Trustee hereunder;
(iii) such Holder or Holders have provided to the Trustee security or
indemnity reasonably satisfactory to it against the expenses, losses and
liabilities to be incurred in compliance with such request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and provision of security or indemnity has failed to institute any such
proceeding; and
(v) no direction, in the opinion of the Trustee, inconsistent with
such written request has been given to the Trustee during such 60-day
period by the Holders of a majority in aggregate Principal Amount of the
Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all the Holders.
Section 8.07 Unconditional Right of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the Principal Amount, Repurchase Price or accrued and
unpaid interest in respect of the Securities held by such Holder, on or after
the respective due dates expressed in the Securities or any Repurchase Date, as
applicable, and to convert the Securities in accordance with Article 6, or to
bring suit for the enforcement of any such payment on or after such respective
dates or the right to convert, shall not be impaired or affected adversely
without the consent of such Holder.
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Section 8.08 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 8.09 Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 3.07, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 8.10 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 8.11 Control by Holders. The Holders of a majority in Principal
Amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, provided
that:
(i) such direction shall not be in conflict with any rule of law or
with this Indenture; and
(ii) the Trustee may refuse to follow any such direction that the
Trustee determines is unduly prejudicial to the rights of any other Holder
or that would involve the Trustee in personal liability.
Section 8.12 Waiver of Past Defaults. The Holders of not less than a
majority in Principal Amount of the Outstanding Securities may on behalf of the
Holders of all the Securities waive any past Default hereunder and its
consequences, except a Default:
(i) Described in Section 8.01(a) or Section 8.01(b); or
(ii) in respect of a covenant or provision hereof which under Article
14 cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
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Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
Default or impair any right consequent thereon.
Section 8.13 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, in either case in respect of the
Securities, a court may require any party litigant in such suit to file an
undertaking to pay the costs of the suit, and the court may assess reasonable
costs, including reasonable attorney's 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; but the provisions of this
Section 8.13 shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in Principal Amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the Principal Amount on any Security on or after
Maturity of such Security or the Repurchase Price.
Section 8.14 Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay, extension or usury law or other law which would prohibit or forgive
the Company from paying all or any portion of the principal of 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
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
Section 8.15 Notice of Default. The Trustee may withhold notice to the
Holders of the Securities of any Event of Default, except defaults in payment of
Principal Amount or interest, including Additional Interest, if any, on the
Securities, if and so long as a committee of the trust officers of the Trustee
in good faith determines that the withholding of such notice is in the interest
of the Holders of the Securities.
ARTICLE 9
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.01 Company May Consolidate, etc., Only on Certain Terms. The
Company shall not consolidate with or merge with or into, or convey, transfer or
lease all or substantially all of its properties and assets to, any Person,
unless:
(a) the resulting, surviving or transferee Person, if not the Company (the
"SUCCESSOR COMPANY"), is a corporation organized and existing under the laws of
the United States of America, any state thereof or the District of Columbia, and
the Successor Company (if not the Company itself) expressly assumes, by a
supplemental indenture, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all of the obligations of the Company
under the Securities, this Indenture and, to the extent then still operative,
the Registration Rights Agreement; and
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(b) immediately after giving effect to such transaction, no Event of
Default shall have occurred and be continuing.
Section 9.02 Successor Substituted. Upon any consolidation of the Company
with, or merger of the Company with or 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 9.01, the Successor Company formed by
such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall be an obligor under this Indenture,
and, except in the case of a lease, 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.
ARTICLE 10
SUBORDINATION OF THE SECURITIES
Section 10.01 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 10; 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, and the cash portion of the conversion
obligation as set forth in Article 6, and any interest (including Additional
Interest) on, and any of the Company's other cash payment obligation with
respect to all Securities (including, but not limited to, the Repurchase Price
with respect to the Securities subject to purchase in accordance with Article 5
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.
The Securities shall rank pari passu and equal in right of payment with the
Bonds.
No provision of this Article 10 shall prevent the occurrence of any default
or Event of Default hereunder.
Section 10.02 Payments to Holders. No payment shall be made with respect to
the principal of, or premium on, if any, the cash portion of the conversion
obligation, if any, or interest on, the Securities (including, but not limited
to, the Repurchase Price with respect to the Securities subject to purchase in
accordance with Article 5 as provided in this Indenture) (except payments made
pursuant to Article 13 from monies deposited with the Trustee pursuant thereto
which deposit at the time thereof is not prohibited by this Article 10), 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
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(ii) a default, other than a payment default, under any 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 such Designated Senior Indebtedness, unless
and until the earlier of (x) the date on which such default is cured or
waived or ceases to exist or (y) 179 days after the date on which the
Payment Blockage Notice is received.
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 and all
scheduled payments on the Securities that have come due have been paid in full
in cash. 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 for a period of 90 days, cured or otherwise ceased to exist and
thereafter subsequently reoccurred) shall be, or be made, the basis for a
subsequent Payment Blockage Notice; provided, however, that any subsequent
action, or any breach of any financial covenants during the period after the
date of delivery of a Payment Blockage Notice, that, in either case, would give
rise to a default pursuant to any provisions under which a default previously
existed or was continuing shall constitute a new default for this purpose.
The Company may and shall resume payments on and distributions in respect
of the Securities upon the earlier of:
(a) in the case of a default referred to in clause (i) above, 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, the earlier
of the date on which such default is cured or waived or ceases to exist or 179
days after the date on which the applicable Payment Blockage Notice is received,
if the maturity of such Designated Senior Indebtedness has not been accelerated,
unless this Article 10 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 payment
satisfactory to the holders of Senior Indebtedness, before any payment is made
on account of the principal of, and premium, if any, the cash portion of the
conversion obligation, if any, or interest on, the Securities (except payments
made pursuant to Article 13 from monies deposited with the Trustee pursuant
thereto prior to commencement of proceedings for such dissolution, winding-up,
liquidation or reorganization which deposit at the time thereof is not
prohibited by this Article 10); 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,
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except for the provision of this Article 10, 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, 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 10, 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 10 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, transfer or lease of its property as an
entirety, or substantially as an entirety, to another corporation upon the terms
and conditions provided for in Article 9 shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 10.02
if such other corporation shall, as a part of such consolidation, merger,
conveyance, transfer or lease, comply with the conditions stated in Article 9.
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, and premium, if any, the cash
portion of the conversion obligation, if any, or interest on, the Securities by
the Company (including, but not limited to, the Repurchase Price with respect to
the Securities subject to purchase in accordance with Article 5 as provided in
this Indenture), 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. If
payment of Securities is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Indebtedness of such acceleration;
provided, that the failure to give such notice shall have no effect whatsoever
on the provisions of this Article 10.
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
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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.
Section 10.03 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 10 (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 of, and premium, if any, the cash portion of the conversion
obligation, if any, and interest 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 10, and no payment over, pursuant to the provisions
of this Article 10, 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 10, 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 10 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 10 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,
the cash portion of the conversion obligation, if any, and any 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
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10 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 10, the Trustee 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 10.
Section 10.04 Authorization to Effect Subordination. Each Holder of a
Security by the Holder's acceptance thereof authorizes and directs the Trustee
on the Holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article 10 and appoints the
Trustee to act as the Holder's attorney-in-fact for any and all such purposes.
Section 10.05 Notice to Trustee. The Company shall give prompt written
notice in the form of an Officers' Certificate to a Responsible Officer of the
Trustee and to any Paying Agent of any fact known to 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
10. Notwithstanding the provisions of this Article 10 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 10, unless and until a Responsible 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 or from any trustee thereof; and before the
receipt of any such written notice, the Trustee shall be entitled in all
respects to assume that no such facts exist; provided that, if on a date not
less 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 10.05, 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 10 to the contrary, nothing shall prevent any payment by the Trustee to
the Holders of monies deposited with it pursuant to Article 13, which deposit at
the time thereof is not prohibited by this Article 10, and any such payment
shall not be subject to the provisions of Article 10.
The Trustee shall be entitled to rely on the delivery to it of a written
notice by a Representative or a person representing himself to be a holder of
Senior Indebtedness (or a trustee on behalf of such holder) to establish that
such notice has been given by a Representative or a holder of Senior
Indebtedness or a trustee on behalf of any such holder or holders. In the
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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 10, 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 10, 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 10.06 Trustee's Relation to Senior Indebtedness. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this
Article 10 in respect of any Senior Indebtedness at any time held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee undertakes
to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article 10, 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, except with
respect to its express obligations under this Article 10, 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 10 or otherwise.
Section 10.07 No Impairment of Subordination. No right of any present or
future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of the 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 10.08 Certain Conversions Deemed Payment. For the purposes of this
Article 10 only, the issuance and delivery of Common Stock upon conversion of
Securities in accordance with Article 6 shall not be deemed to constitute a
payment or distribution on account of the principal of, or premium, if any, the
cash portion of the conversion obligation, if any, or interest on, Securities or
on account of the purchase or other acquisition of Securities. Nothing contained
in this Article 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 6.
Section 10.09 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
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of the Trustee; provided, however, that the first paragraph of Section 10.05
shall not apply to the Company or any Affiliate of the Company if it or such
Affiliate acts as Paying Agent.
Section 10.10 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 10, and no amendment or
modification of the provisions contained herein shall diminish the rights of
such holders unless such holders shall have agreed in writing thereto.
Section 10.11 Anti-Layering. The Company shall not incur, create, issue,
assume, guarantee or otherwise become liable for any Indebtedness that is
subordinate or junior in right of payment to any Senior Indebtedness, unless
such Indebtedness ranks either pari passu and equal or junior in right of
payment to the Securities. For purposes of the foregoing, for the avoidance of
doubt, no Indebtedness shall be deemed to be subordinated in right of payment to
any other Indebtedness solely by virtue of being unsecured or secured by a
junior priority lien or by virtue of the fact that the holders of such
Indebtedness have entered into intercreditor agreements or other arrangements
giving one or more of such holders priority over the other holders in the
collateral held by them or by virtue of structural subordination.
ARTICLE 11
THE TRUSTEE
Section 11.01 Duties and Responsibilities of Trustee. The Trustee, prior to
the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own grossly negligent action, its own grossly negligent
failure to act or its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture and the Trust Indenture
Act, and the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture and
the Trust Indenture Act against the Trustee; and
(ii) in the absence of bad faith and willful misconduct on the part of
the Trustee, the Trustee may conclusively rely as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any such certificates
or opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to
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determine whether or not they conform to the requirements of this Indenture
(but need not confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless the Trustee
was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction
of the Holders of not less than a majority in Principal Amount of the Securities
at the time outstanding determined as provided in Section 1.04 relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture;
(d) whether or not therein provided, every provision of this Indenture
relating to the conduct or affecting the liability of, or affording protection
to, the Trustee shall be subject to the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as to the
correctness of amount, entitlement to receive or any other matters relating to
payment) or notice effected by the Company or any other paying agent or any
records maintained by any co-registrar with respect to the Securities; and
(f) if any party fails to deliver a notice relating to an event the fact of
which, pursuant to this Indenture, requires notice to be sent to the Trustee,
the Trustee may conclusively rely on its failure to receive such notice as
reason to act as if no such event occurred.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 11.02 Notice of Defaults. If a Default occurs and is continuing of
which the Trustee has or is deemed to have notice under Section 11.03(i), the
Trustee shall give the Holders notice of the Default within 90 days after the
occurrence thereof; provided, that (except in the case of any Default in the
payment of Principal Amount or Interest on any of the Securities or Repurchase
Price), the Trustee shall be protected in withholding such notice if and so long
as a committee of Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders of
Securities.
Section 11.03 Reliance on Documents, Opinions, Etc. Except as otherwise
provided in Section 11.01:
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form)
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believed by it in good faith to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) the Trustee may consult with counsel of its own selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture, unless
such Securityholders shall have provided to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby;
(e) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney (at the reasonable expense of
the Company and shall incur no liability of any kind by reason of such inquiry
or investigation);
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder;
(g) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(h) the Trustee shall not be responsible or liable for special, indirect,
or consequential loss or damage of any kind whatsoever (including, but not
limited to, loss of profit) irrespective of whether the Trustee has been advised
of the likelihood of such loss or damage and regardless of the form of action
unless the Trustee's conduct constitutes willful misconduct or gross negligence;
(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and the Indenture; and
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(j) 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 each agent, custodian and other Person employed to act hereunder.
Section 11.04 No Responsibility for Recitals, Etc. The recitals contained
herein and in the Securities (except in the Trustee's certificate of
authentication) shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of any Securities or the proceeds of any Securities authenticated
and delivered by the Trustee in conformity with the provisions of this
Indenture.
Section 11.05 Trustee, Paying Agents, Conversion Agents or Registrar May
Own Securities. The Trustee, any paying agent, any conversion agent or Security
Registrar, in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it were not Trustee,
paying agent, conversion agent or Security Registrar.
Section 11.06 Monies to be Held in Trust. Subject to the provisions of
Section 13.04, all monies and properties received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received. Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as may be agreed in writing from time to time by the Company and the
Trustee.
Section 11.07 Compensation and Expenses of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
in any capacity (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) as mutually agreed to from
time to time in writing between the Company and the Trustee, and the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all Persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from its gross negligence, willful misconduct or bad
faith. The Company also covenants to indemnify the Trustee (or any officer,
director or employee of the Trustee), in any capacity under this Indenture and
its agents and any authenticating agent for, and to hold them harmless against,
any and all loss, liability, claim or expense incurred without gross negligence,
willful misconduct or bad faith on the part of the Trustee or such officers,
directors, employees and agent or authenticating agent, as the case may be, and
arising out of or in connection with the acceptance or administration of this
trust or in any other capacity hereunder, including the costs and expenses of
defending themselves against any claim of liability in the premises. The
obligations of the Company under this Section 11.07 to compensate or indemnify
the Trustee and to pay or reimburse the Trustee for expenses, disbursements and
advances shall be secured by a lien prior to that of the Securities upon all
property and funds held or collected by the Trustee as such, except funds held
in trust for the
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benefit of the Holders of particular Securities. The obligation of the Company
under this Section shall survive the satisfaction and discharge of this
Indenture.
When the Trustee and its agents and any authenticating agent incur expenses
or render services after an Event of Default specified in Section 8.01(i) with
respect to the Company occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
bankruptcy, insolvency or similar laws.
Section 11.08 Officers' Certificate as Evidence. Except as otherwise
provided in Section 11.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or willful misconduct on the part
of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee.
Section 11.09 Conflicting Interests of Trustee. If the Trustee has or shall
acquire a conflicting interest within the meaning of the Trust Indenture Act,
the Trustee shall either eliminate such interest or resign, to the extent and in
the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture.
Section 11.10 Eligibility of Trustee. There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000 (or if such Person is a member of a bank holding company system, its
bank holding company shall have a combined capital and surplus of at least
$50,000,000). If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 11.10, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 11.11 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign by giving written notice of such
resignation to the Company and to the Holders of Securities. Upon receiving such
notice of resignation, the Company shall promptly appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment 60 days after the mailing of such notice
of resignation to the Securityholders, the resigning Trustee may, upon ten
business days' notice to the Company and the Securityholders, appoint a
successor identified in such notice or may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
trustee, or, any Securityholder who has been a bona fide Holder of a Security or
Securities for at least 6 months may, subject to the provisions of Section 8.13,
on behalf of himself and all others similarly situated, petition any such court
for the appointment of a
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successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 11.09 after written
request therefor by the Company or by any Securityholder who has been a
bona fide Holder of a Security or Securities for at least 6 months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 11.10 and shall fail to resign after written request
therefor by the Company or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation; then, in any such case, the
Company may remove the Trustee and appoint a successor trustee by written
instrument, in duplicate, executed by order of the Board of Directors, one
copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section
8.13, any Securityholder who has been a bona fide Holder of a Security or
Securities for at least 6 months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee;
provided, however, that if no successor Trustee shall have been appointed
and have accepted appointment 60 days after either the Company or the
Securityholders has removed the Trustee, the Trustee so removed may
petition at its own expense any court of competent jurisdiction for an
appointment of a successor trustee. Such court may thereupon, after such
notice, if any, as it may deem proper and prescribe, remove the Trustee and
appoint a successor trustee.
(c) The Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding may at any time remove the Trustee and
nominate a successor trustee which shall be deemed appointed as successor
trustee unless, within ten days after notice to the Company of such nomination,
the Company objects thereto, in which case the Trustee so removed or any
Securityholder, or if such Trustee so removed or any Securityholder fails to
act, the Company, upon the terms and conditions and otherwise as in Section
11.11(a) provided, may petition any court of competent jurisdiction for an
appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 11.11 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 11.12.
Section 11.12 Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 11.11 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
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powers, duties and obligations of its predecessor hereunder, with like effect as
if originally named as trustee herein; but, nevertheless, on the written request
of the Company or of the successor trustee, the trustee ceasing to act shall,
upon payment of any amount then due it pursuant to the provisions of Section
11.07, execute and deliver an instrument transferring to such successor trustee
all the rights and powers of the trustee so ceasing to act. Upon request of any
such successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such successor
trustee all such rights and powers. Any trustee ceasing to act shall,
nevertheless, retain a lien upon all property and funds held or collected by
such trustee as such, except for funds held in trust for the benefit of Holders
of particular Securities, to secure any amounts then due it pursuant to the
provisions of Section 11.07.
No successor trustee shall accept appointment as provided in this Section
11.12 unless, at the time of such acceptance, such successor trustee shall be
qualified under the provisions of Section 11.09 and be eligible under the
provisions of Section 11.10.
Upon acceptance of appointment by a successor trustee as provided in this
Section 11.12, the Company (or the former trustee, at the written direction of
the Company) shall mail or cause to be mailed notice of the succession of such
trustee hereunder to the Holders of Securities at their addresses as they shall
appear on the Security Register. If the Company fails to mail such notice within
ten days after acceptance of appointment by the successor trustee, the successor
trustee shall cause such notice to be mailed at the expense of the Company.
Section 11.13 Succession by Merger, Etc. Any corporation into which the
Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee (including any trust created
by this Indenture), shall be the successor to the Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that in the case of any corporation succeeding to all
or substantially all of the corporate trust business of the Trustee, such
corporation shall be qualified under the provisions of Section 11.09 and
eligible under the provisions of Section 11.10.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Securities shall have been
authenticated but not delivered, any such successor to the Trustee may adopt the
certificate of authentication of any predecessor trustee or authenticating agent
appointed by such predecessor trustee, and deliver such Securities so
authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee or any authenticating agent
appointed by such successor trustee may authenticate such Securities in the name
of the successor trustee; and in all such cases such certificates shall have the
full force that is provided in the Securities or in this Indenture; provided,
however, that the right to adopt the certificate of authentication of any
predecessor Trustee or authenticate Securities in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 11.14 Preferential Collection of Claims. If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the
Securities), the Trustee shall be
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subject to the provisions of the Trust Indenture Act regarding the collection of
the claims against the Company (or any such other obligor).
ARTICLE 12
HOLDERS' LISTS AND REPORTS BY TRUSTEE
Section 12.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(i) semi-annually, not more than 15 days after each Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of such Record Date; and
(ii) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar; provided, however, that no such list need be
furnished so long as the Trustee is acting as Security Registrar.
Section 12.02 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 12.01 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 12.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Securities, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act.
(c) Every Securityholder, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
agent of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of Holders made pursuant to the Trust
Indenture Act.
Section 12.03 Reports By Trustee. The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted no later than December
31 of each calendar year, commencing on December 31, 2007. Each such report
shall be dated as of a date not more than 60 days prior to the date of
transmission.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the
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Commission and with the Company. The Company will notify the Trustee when the
Securities are listed on any stock exchange or of any delisting thereof.
Section 12.04 Reports by Company. The Trustee's receipt of reports,
information and documents delivered by the Company pursuant to its obligations
under Section 4.06 shall not constitute constructive notice to the Trustee of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder,
except for the covenants in Section 4.06 (as to which the Trustee is entitled to
conclusively rely exclusively on an Officers' Certificate).
ARTICLE 13
SATISFACTION AND DISCHARGE
Section 13.01 Discharge of Indenture. When (a) the Company shall deliver to
the Trustee for cancellation all Securities theretofore authenticated (other
than any Securities that have been destroyed, lost or stolen and in lieu of or
in substitution for which other Securities shall have been authenticated and
delivered) and not theretofore canceled, or (b) all the Securities not
theretofore canceled or delivered to the Trustee for cancellation shall have
become due and payable (whether at Stated Maturity, or on any Repurchase Date or
upon conversion or otherwise) and the Company shall have deposited with the
Trustee, in trust, cash funds and shares of Common Stock, as applicable,
sufficient to pay all amounts due (and shares of Common Stock deliverable
following conversion, if applicable) on all of such Securities (other than any
Securities that shall have been mutilated, destroyed, lost or stolen and in lieu
of or in substitution for which other Securities shall have been authenticated
and delivered) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and interest, including Additional Interest,
if any, due, accompanied, except in the event the Securities are due and payable
solely in cash upon a Repurchase Date, by a verification report as to the
sufficiency of the deposited amount from an independent certified accountant,
and if the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company, then this Indenture shall cease to be of further
effect (except as to (i) remaining rights of registration of transfer,
substitution and exchange and conversion of Securities, (ii) rights hereunder of
Securityholders to receive payments of principal of and interest, including
Additional Interest, if any, on, the Securities and the other rights, duties and
obligations of Securityholders, as beneficiaries hereof with respect to the
amounts, if any, so deposited with the Trustee and (iii) the rights, obligations
and immunities of the Trustee hereunder), and the Trustee, on written demand of
the Company accompanied by an Officers' Certificate and an Opinion of Counsel as
required by Section 1.02 and at the cost and expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture; the Company, however, hereby agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred by the Trustee and
to compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities.
Section 13.02 Deposited Monies to be Held in Trust by Trustee. Subject to
Section 13.04, all monies deposited with the Trustee pursuant to Section 13.01
shall be held in trust for the sole benefit of the Securityholders, and such
monies shall be applied by the Trustee to the payment, either directly or
through any paying agent (including the Company if acting as its own paying
agent), to the Holders of the particular Securities for the payment or
redemption of which
81
such monies have been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest, including Additional Interest, if any.
Section 13.03 Paying Agent to Repay Monies Held. Upon the satisfaction and
discharge of this Indenture, all monies then held by any paying agent of the
Securities (other than the Trustee) shall, upon written request of the Company,
be repaid to it or paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such monies.
Section 13.04 Return of Unclaimed Monies. Subject to the requirements of
applicable law, any monies deposited with or paid to the Trustee for payment of
the principal of or interest, including Additional Interest, if any, on
Securities and not applied but remaining unclaimed by the Holders of Securities
for two years after the date upon which the principal of or interest, including
Additional Interest, if any, on such Securities, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee on demand
and all liability of the Trustee shall thereupon cease with respect to such
monies; and the Holder of any of the Securities shall thereafter look only to
the Company for any payment that such Holder may be entitled to collect unless
an applicable abandoned property law designates another Person.
Section 13.05 Reinstatement. If the Trustee or the paying agent is unable
to apply any money in accordance with Section 13.02 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 13.01 until such time as the Trustee or
the paying agent is permitted to apply all such money in accordance with Section
13.02; provided, however, that if the Company makes any payment of interest on
or principal of any Security following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or paying agent.
ARTICLE 14
SUPPLEMENTAL INDENTURES
Section 14.01 Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(i) to cure any ambiguity, omission, defect or inconsistency contained
herein, so long as such action will not adversely affect the interests of
Holders;
(ii) to provide for the assumption by a successor corporation,
partnership, trust or limited liability company of the obligations of the
Company contained herein;
(iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities; provided that such 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;
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(iv) to add guarantees with respect to the Securities;
(v) to secure the Securities;
(vi) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company;
(vii) to add or modify any other provision herein with respect to
matters or questions arising hereunder which the Company and the Trustee
may deem necessary or desirable and which does not materially and adversely
affect the rights of any Holder;
(viii) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to comply with any requirement of the
Commission to effect the qualifications of this Indenture under the Trust
Indenture Act, or under any similar federal statute hereafter enacted.
Section 14.02 Supplemental Indentures With Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate Principal Amount
of the Outstanding Securities, by Act of said Holders delivered to the Company
and the Trustee (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Securities), the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby,
(i) reduce the amount of Securities whose Holders must consent to an
amendment or waiver;
(ii) reduce the rate of or extend the stated time for payment of any
interest, including Additional Interest, if any, on any Security;
(iii) reduce the Principal Amount of, or extend the Stated Maturity
of, any Security;
(iv) make any change that adversely affects the conversion rights of
any Securities;
(v) reduce the purchase price or Repurchase Price of any Security or
amend or modify in any manner adverse to the Holders of Securities the
Company's obligation to make such payments, whether through an amendment or
waiver of provisions in the covenants, definitions or otherwise;
(vi) make any Security payable in money other than that stated in such
Security;
83
(vii) impair the right of a Holder to receive payment of principal and
interest, including Additional Interest, if any, on such Holder's
Securities on or after the due dates thereof or to institute a suit for the
enforcement of any payment on or with respect to such Holder's Securities;
(viii) modify any of the provisions of Article 10 if such modification
would adversely affect the rights of Holders; or
(ix) modify any of the provisions of this Section 13.02 or Section
7.12, except to increase any such percentage or to provide that certain
other 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 any Act of Holders under this Section 14.02
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 14.03 Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article 14 or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be provided with, and (subject to Section 10.01)
shall be fully protected in relying upon, in addition to the documents required
by Section 1.02, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. Subject to
the preceding sentence, the Trustee shall sign such supplemental indenture if
the same does not adversely affect the Trustee's own rights, duties or
immunities under this Indenture or otherwise. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture that adversely affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
Section 14.04 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article 14, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Securityholder theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
Section 14.05 Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
Section 14.06 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article 14 shall bear a notation in form approved by
the Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
Section 14.07 Notice to Holders of Supplemental Indentures. The Company
shall cause notice of the execution of any supplemental indenture to be mailed
to each Securityholder, at his
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address appearing on the Security Register provided for in this Indenture,
within 20 days after execution thereof. Failure to deliver such notice, or any
defect in such notes, shall not affect the legality or validity of such
supplemental indenture.
ARTICLE 15
MISCELLANEOUS
Section 15.01 Communication by Holders with other Holders. Holders may
communicate pursuant to Section 312(b) of the Trust Indenture Act with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Security Registrar and anyone else shall have the
protection of Section 312(c) of the Trust Indenture Act.
Section 15.02 When Securities Are Disregarded. In determining whether the
Holders of the required Principal Amount of Securities have concurred in any
direction, waiver or consent, Securities owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded. Also, subject to the foregoing, only Securities
outstanding at the time shall be considered in any such determination.
Section 15.03 Rules by Trustee, Paying Agent and Security Registrar. The
Trustee may make reasonable rules for action by, or a meeting of, Holders. The
Security Registrar and the Paying Agent may make reasonable rules for their
functions.
Section 15.04 Successors. All agreements of the Company in this Indenture
and the Securities shall bind their respective successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 15.05 Multiple Originals. The parties may sign any number of copies
of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
Section 15.06 Qualification of Indenture. The Company shall qualify this
Indenture under the Trust Indenture Act in accordance with the terms and
conditions of the Registration Rights Agreement and shall pay all reasonable
costs and expenses (including attorneys' fees and expenses for the Company, the
Trustee and the Holders) incurred in connection therewith, including, but not
limited to, costs and expenses of qualification of this Indenture and the
Securities and the printing of this Indenture and the Securities.
Section 15.07 Calculations. Except as otherwise provided herein, the
Company will be responsible for making all calculations called for under the
Indenture and the Securities. The Company will make all such calculations in
good faith and, absent manifest error, its calculations will be final and
binding on Holders. The Company upon request will provide a schedule of its
calculations to each of the Trustee and the Conversion Agent, and each of the
Trustee and Conversion Agent is entitled to rely conclusively upon the accuracy
of the Company's
85
calculations without independent verification. The Trustee will deliver a copy
of such schedule to any Holder upon the request of such Holder.
Section 15.08 Waiver of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, THE NOTES OR THE TRANSACTION CONTEMPLATED THEREBY.
Section 15.09 Force Majeure. In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations
hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of
utilities, communications or computer (software or hardware) services; it being
understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
[Remainder of the page intentionally left blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: Chief Financial Officer
[Trustee Signature Follows]
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- U.S. Bank Trust National Association,
as Trustee
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
88
EXHIBIT A
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND ACCORDINGLY, MAY NOT BE
OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER AGREES (1) THAT IT WILL NOT WITHIN THE LATER OF
(X) TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY AND (Y) THREE MONTHS
AFTER IT CEASES TO BE AN AFFILIATE (WITHIN THE MEANING OF RULE 144 ADOPTED UNDER
THE SECURITIES ACT) OF THE ISSUER, RESELL OR OTHERWISE TRANSFER THE SECURITY
EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY,
EXCEPT (A) TO THE ISSUER; (B) UNDER A REGISTRATION STATEMENT THAT HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT; (C) TO A PERSON THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
ADOPTED UNDER THE SECURITIES ACT) THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR
THE ACCOUNT OF ANOTHER QUALIFIED INSTITUTIONAL BUYER AND TO WHOM NOTICE IS GIVEN
THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, ALL IN COMPLIANCE WITH
RULE 144A (IF AVAILABLE); OR (D) UNDER ANY OTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (2) THAT IT WILL, PRIOR TO
ANY TRANSFER OF THIS SECURITY WITHIN THE LATER OF (X) TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY AND (Y) THREE MONTHS AFTER IT CEASES TO BE AN
AFFILIATE (WITHIN THE MEANING OF RULE 144 ADOPTED UNDER THE SECURITIES ACT) OF
THE ISSUER, FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED PURSUANT TO THE INDENTURE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
