EXHIBIT 4.06
____________________________________
EXODUS COMMUNICATIONS, INC.
ISSUER
TO
CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL ASSOCIATION,
TRUSTEE
__________________
INDENTURE
Dated as of March 1, 1999
__________________
5% CONVERTIBLE SUBORDINATED NOTES DUE MARCH 15, 2006
_______________________________________
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION 1
SECTION I.1 Definitions 1
SECTION I. 2 Compliance Certificates And Opinions 11
SECTION I. 3 Form of Documents Delivered to The Trustee 11
SECTION I. 4 Acts of Holders of Securities 12
SECTION I.5 Notices, Etc. to Trustee and Company 14
SECTION I. 6 Notice to Holders of Securities; Waiver 15
SECTION I. 7 Effect of Headings and Table of Contents 15
SECTION I. 8 Successors and Assigns 15
SECTION I. 9 Separability Clause 16
SECTION I. 10 Benefits of Indenture 16
SECTION I. 11 Governing Law 16
SECTION I. 12 Legal Holidays 16
SECTION I. 13 Conflict With Trust Indenture Act 16
ARTICLE II SECURITY FORMS 17
SECTION II. 1 Form Generally 17
SECTION II. 2 Form of Security 18
SECTION II. 3 Form of Certificate of Authentication 31
SECTION II. 4 Form of Conversion Notice 32
SECTION II. 5 Form of Assignment 34
ARTICLE III THE SECURITIES 35
SECTION III. 1 Title and Terms 35
SECTION III. 2 Denominations 36
SECTION III. 3 Execution, Authentication, Delivery and Dating 36
SECTION III. 4 Global Securities; Non-global Securities; Book-entry
Provisions 36
SECTION III. 5 Registration; Registration of Transfer and Exchange;
Restrictions on Transfer 38
SECTION III. 6 Mutilated, Destroyed, Lost or Stolen Securities 42
SECTION III. 7 Payment of Interest; Interest Rights Preserved 43
SECTION III. 8 Persons Deemed Owners 44
SECTION III. 9 Cancellation 44
SECTION III. 10 Computation of Interest 44
SECTION III. 11 Cusip Numbers 44
ARTICLE IV SATISFACTION AND DISCHARGE 45
SECTION IV. 1 Satisfaction And Discharge of Indenture 45
SECTION IV. 2 Application of Trust Money 46
ARTICLE V REMEDIES 47
SECTION V. 1 Events of Default 47
SECTION V. 2 Acceleration of Maturity; Rescission and Annulment 48
SECTION V. 3 Collection of Indebtedness and Suits for Enforcement by
Trustee 49
SECTION V. 4 Trustee May File Proofs of Claim 50
SECTION V. 5 Trustee May Enforce Claims Without Possession of
Securities 51
SECTION V. 6 Application of Money Collected 51
SECTION V. 7 Limitation on Suits 52
SECTION V. 8 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert 52
SECTION V. 9 Restoration of Rights and Remedies 53
SECTION V. 10 Rights and Remedies Cumulative 53
SECTION V. 11 Delay or Omission Not Waiver 53
SECTION V. 12 Control by Holders of Securities 53
SECTION V. 13 Waiver of Past Defaults 54
SECTION V. 14 Undertaking for Costs 54
SECTION V. 15 Waiver of Stay, Usury or Extension Laws 54
ARTICLE VI THE TRUSTEE 55
SECTION VI. 1 Certain Duties and Responsibilities 55
SECTION VI. 2 Notice of Defaults 56
SECTION VI. 3 Certain Rights of Trustee 56
SECTION VI. 4 Not Responsible for Recitals or Issuance of Securities 57
SECTION VI. 5 May Hold Securities, Act as Trustee under Other Indentures 58
SECTION VI. 6 Money Held in Trust 58
SECTION VI. 7 Compensation and Reimbursement 58
SECTION VI. 8 Corporate Trustee Required; Eligibility 59
SECTION VI. 9 Resignation and Removal; Appointment of Successor 59
SECTION VI. 10 Acceptance of Appointment by Successor 61
SECTION VI. 11 Merger, Conversion, Consolidation or Succession to
Business 61
SECTION VI. 12 Authenticating Agents 61
SECTION VI. 13 Disqualification; Conflicting Interests 64
SECTION VI. 14 Preferential Collection of Claims Against Company 64
ARTICLE VII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE 64
SECTION VII.1 Company May Consolidate, Etc., Only on Certain Terms 64
SECTION VII. 2 Successor Substituted 65
ARTICLE VIII SUPPLEMENTAL INDENTURES 65
SECTION VIII. 1 Supplemental Indentures Without Consent of Holders of
Securities 65
SECTION VIII. 2 Supplemental Indentures with Consent of Holders of
Securities 66
SECTION VIII. 3 Execution of Supplemental Indentures 67
SECTION VIII. 4 Effect of Supplemental Indentures 67
SECTION VIII. 5 Reference in Securities to Supplemental Indentures 68
SECTION VIII. 6 Notice of Supplemental Indentures 68
ARTICLE IX MEETINGS OF HOLDERS OF SECURITIES 68
SECTION IX. 1 Purposes for Which Meetings May Be Called 68
SECTION IX. 2 Call, Notice and Place of Meetings 68
SECTION IX. 3 Persons Entitled to Vote at Meetings 69
SECTION IX. 4 Quorum; Action 69
SECTION IX. 5 Determination of Voting Rights; Conduct and Adjournment
of Meetings 70
SECTION IX. 6 Counting Votes and Recording Action of Meetings 71
ARTICLE X COVENANTS 71
SECTION X. 1 Payment of Principal, Premium and Interest 71
SECTION X. 2 Maintenance of Offices or Agencies 71
SECTION X. 3 Money for Security Payments to Be Held in Trust 72
SECTION X. 4 Existence 73
SECTION X. 5 Maintenance of Properties 73
SECTION X. 6 Payment of Taxes and Other Claims 74
SECTION X. 7 Registration and Listing 74
SECTION X. 8 Statement by Officers as to Default 74
SECTION X. 9 Delivery of Certain Information 75
SECTION X. 10 Resale of Certain Securities 75
SECTION X. 11 Registration Rights 76
SECTION X. 11 Registration Rights 77
SECTION X. 12 Waiver of Certain Covenants 78
ARTICLE XI REDEMPTION OF SECURITIES 78
SECTION XI. 1 Right of Redemption 78
SECTION XI. 2 Applicability of Article 78
SECTION XI. 3 Election to Redeem; Notice to Trustee 78
SECTION XI. 4 Selection by Trustee of Securities to Be Redeemed 79
SECTION XI. 5 Notice of Redemption 79
SECTION XI. 6 Deposit of Redemption Price 80
SECTION XI. 7 Securities Payable on Redemption Date 80
SECTION XI. 8 Conversion Arrangement on Call for Redemption 81
ARTICLE XII CONVERSION OF SECURITIES 82
SECTION XII. 1 Conversion Privilege and Conversion Rate 82
SECTION XII. 2 Exercise of Conversion Privilege 82
SECTION XII. 3 Fractions of Shares 84
SECTION XII. 4 Adjustment of Conversion Rate 84
SECTION XII. 5 Notice of Adjustments of Conversion Rate 89
SECTION XII. 6 Notice of Certain Corporate Action 90
SECTION XII. 7 Company to Reserve Common Stock 91
SECTION XII. 8 Taxes on Conversions 91
SECTION XII. 9 Covenant as to Common Stock 91
SECTION XII. 10 Cancellation of Converted Securities 91
SECTION XII. 11 Provision in Case of Consolidation, Merger or Sale
of Assets 91
SECTION XII. 12 Rights Issued in Respect of Common Stock 92
SECTION XII. 13 Responsibility of Trustee for Conversion Provisions 93
ARTICLE XIII SUBORDINATION OF SECURITIES 94
SECTION XIII. 1 Securities Subordinate to Senior Indebtedness 94
SECTION XIII. 2 No Payment in Certain Circumstances, Payment over of
Proceeds upon Dissolution, Etc 94
SECTION XIII. 3 Prior Payment to Senior Indebtedness upon Acceleration
of Securities 96
SECTION XIII. 4 Payment Permitted If No Default 97
SECTION XIII. 5 Subrogation to Rights of Holders of Senior Indebtedness 97
SECTION XIII. 6 Provisions Solely to Define Relative Rights 97
SECTION XIII. 7 Trustee to Effectuate Subordination 98
SECTION XIII. 8 No Waiver of Subordination Provisions 98
SECTION XIII. 9 Notice to Trustee 98
SECTION XIII. 10 Reliance on Judicial Order or Certificate of
Liquidating Agent 99
SECTION XIII. 11 Trustee Not Fiduciary for Holders of Senior
Indebtedness 99
SECTION XIII. 12 Reliance by Holders of Senior Indebtedness on
Subordination Provisions 100
SECTION XIII. 13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights 100
SECTION XIII. 14 Article Applicable to Paying Agents 100
SECTION XIII. 15 Certain Conversions and Repurchases Deemed Payment 100
ARTICLE XIV REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER
UPON A CHANGE IN CONTROL 101
SECTION XIV. 1 Right to Require Repurchase 101
SECTION XIV. 2 Conditions to the Company's Election to Pay the Repurchase
Price in Common Stock 102
SECTION XIV. 3 Notices; Method of Exercising Repurchase Right, Etc 103
SECTION XIV. 4 Certain Definitions 106
SECTION XIV. 5 Consolidation, Merger, etc 107
ARTICLE XV HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY;
NON-RECOURSE 108
SECTION XV. 1 Company to Furnish Trustee Names and Addresses of Holders 108
SECTION XV. 2 Preservation of Information 108
SECTION XV. 3 Reserved 108
SECTION XV. 4 Reports by Trustee 108
SECTION XV. 5 Reports by Company 109
ARTICLE XVI IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND
DIRECTORS 109
SECTION XVI. 1 Indenture and Securities Solely Corporate Obligations 109
INDENTURE, dated as of March 1, 1999, between EXODUS
COMMUNICATIONS, INC., a corporation duly organized and existing under the
laws of the State of Delaware, having its principal office at 0000
Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 (herein called
the "Company"), and CHASE MANHATTAN BANK AND TRUST COMPANY, NATIONAL
ASSOCIATION, a national banking association, as Trustee hereunder (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 5% Convertible Subordinated Notes due March 15, 2006 (herein called
the "Securities") of substantially the tenor and amount hereinafter set
forth, and to provide therefor the Company has duly authorized the
execution and delivery of this Indenture.
All things necessary to make the Securities, when the
Securities are executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and
its terms, have been done. Further, all things necessary to duly
authorize the issuance of the Common Stock of the Company issuable upon
the conversion of the Securities, and to duly reserve for issuance the
number of shares of Common Stock issuable upon such conversion, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATIONARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions . SECTION I.1 Definitions
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted
at the date of such computation; and
(3) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 1.4.
"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 Member" means any member of, or participant in, the
Depositary.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein,
the rules and procedures of The Depository Trust Company, in each case to
the extent applicable to such transaction and as in effect from time to
time.
"Authenticating Agent" means any Person authorized pursuant to
Section 6.12 to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a resolution duly adopted by the Board
of Directors, a copy of which, certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such
certification, shall have been delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment,
Place of Conversion or any other place, as the case may be, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in such Place of Payment, Place of Conversion
or other place, as the case may be, are authorized or obligated by law or
executive order to close; provided, however, that a day on which banking
institutions in New York, New York are authorized or obligated by law or
executive order to close shall not be a Business Day for purposes of
Section 13.9.
"Change in Control" has the meaning specified in Section 14.4(2).
"Closing Price Per Share" means, with respect to the Common
Stock, for any day, (i) the last reported bid price regular way on the
Nasdaq National Market or, (ii) if the Common Stock is not quoted on the
Nasdaq National Market, the last reported sale price regular way per
share or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in
either case, on the principal national securities exchange on which the
Common Stock is listed or admitted to trading, or (iii) if the Common
Stock is not quoted on the Nasdaq National Market or listed or admitted
to trading on any national securities exchange, the average of the
closing bid prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected from time to time by the Company
for that purpose.
"Code" has the meaning specified in Section 2.l.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange
Act, or, if at any time after the execution of this 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.
"Common Stock" means the Common Stock, par value $0.001 per
share, of the Company authorized at the date of this instrument as
originally executed. Subject to the provisions of Section 12.11, shares
issuable on conversion or repurchase of Securities shall include only
shares of Common Stock or shares of any class or classes of common stock
resulting from any reclassification or reclassifications thereof;
provided, however, that if at any time there shall be more than one such
resulting class, the shares so issuable on conversion of Securities shall
include shares of all such classes, and the shares of each such class
then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from
all such reclassifications.
"Common stock" includes any stock of any class of capital stock
which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or
winding up of the issuer thereof and which is not subject to redemption
by the issuer thereof.
"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 (i) Chairman of the Board,
its Vice Chairman of the Board, its Chief Executive Officer, its
President, an Executive Vice President or a Vice President, and by its
(ii) principal financial officer, Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Constituent Person" has the meaning specified in Section 12.11.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article XII. The Company has
initially appointed the Trustee as its Conversion Agent pursuant to
Section 10.2 hereof.
"Conversion Price" has the meaning specified in Section 14.4(3).
"Conversion Rate" has the meaning specified in Section 12.1.
"Corporate Trust Office" means the office of the Trustee at which
at any particular time the trust created by this Indenture shall be
principally administered (which at the date of this Indenture is located
at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, XX 00000, Attention:
Corporate Trust Administration (Exodus Communications, Inc., 5%
Convertible Subordinated Notes due March 15, 2006)).
"Corporation" means a corporation, company, association,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to any Securities (including any
Global Securities), a clearing agency that is registered as such under
the Exchange Act and is designated by the Company to act as Depositary
for such Securities (or any successor securities clearing agency so
registered).
"Designated Senior Debt" means the Company's obligations in
respect of (x) the Company's 11 1/4% Senior Notes due 2008 and (y) any
particular Senior Indebtedness in which the instrument creating or
evidencing the same or the assumption or guarantee thereof (or related
agreements or documents to which the Company is a party) expressly
provides that such Senior Indebtedness shall be "Designated Senior
Debt" for purposes of this Indenture (provided that such instrument,
agreement or other document may place limitations and conditions on the
right of such Senior Indebtedness to exercise the rights of Designated
Senior Debt).
"Distribution Date" shall mean the "Distribution Date" as such
term is defined in the Rights Agreement.
"Dollar" or "U.S. $" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal
tender for the payment of public and private debts.
"DTC" means The Depository Trust Company, a New York corporation.
"Effective Failure" has the meaning specified in Section 10.11.
"Effectiveness Period" has the meaning specified in Section
10.11.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the United States Securities Exchange Act of
1934 (or any successor statute), as amended from time to time.
"Global Security" means a Security that is registered in the
Security Register in the name of a Depositary or a nominee thereof.
"Holder" means the Person in whose name the Security is
registered in the Security Register.
"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.
"Initial Purchasers" means Xxxxxxx, Xxxxx & Co., BancBoston
Xxxxxxxxx Xxxxxxxx Inc., BT Alex. Xxxxx Incorporated, Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation and Xxxxxxxxx & Xxxxx LLC.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Issue Date" means March 3, 1999.
"Liquidated Damages" has the meaning specified in Section 10.11.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, exercise of the
repurchase right set forth in Article XIV or otherwise.
"Non-electing Share" has the meaning specified in Section 12.11.
"Notice of Default" has the meaning specified in Section 5.1.
"Offer to Purchase" has the meaning specified in Section 14.3
"Officers' Certificate" means a certificate signed by (i) the
Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President, an Executive Vice President or a Vice President
and by (ii) the principal financial officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company and who shall be 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 canceled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities for the payment or redemption of
which money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) 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 redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made;
(iii) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, other than
any such Securities in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities converted into Common Stock pursuant to Article XII;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities are present at a
meeting of Holders of Securities for quorum purposes or have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such
determination as to the presence of a quorum or upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee has been notified
in writing to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if
the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or such other obligor, and the Trustee
shall be protected in relying upon an Officer's Certificate to such
effect.
"Paying Agent" means any Person authorized by the Company to pay
the principal of or interest on any Securities on behalf of the Company
and, except as otherwise specifically set forth herein, such term shall
include the Company if it shall act as its own Paying Agent. The Company
has initially appointed the Trustee as its Paying Agent pursuant to
Section 10.2 hereof.
"Payment Blockage Notice" has the meaning specified in Section
13.2.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, estate, unincorporated
organization or government or any agency or political subdivision
thereof.
"Place of Conversion" has the meaning specified in Section 3.1.
"Place of Payment" has the meaning specified in Section 3.1.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.6 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Purchase Agreement" means the Purchase Agreement, dated as of
February 25, 1999, between the Company and the Initial Purchasers, as
such agreement may be amended from time to time.
"Qualified Institutional Buyer" shall mean a "qualified
institutional buyer" as defined in Rule 144A.
"Record Date" means any Regular Record Date or Special Record
Date.
"Record Date Period" means the period from the close of business
of any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registrable Securities" has the meaning specified in Section
10.11.
"Registration Default" has the meaning specified in Section
10.11.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 1, 1999, between the Company and the Initial
Purchasers, as such agreement may be amended from time to time.
"Regular Record Date" for interest payable in respect of any
Security on any Interest Payment Date means the March 1 or September 1
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Representative" means the (a) indenture trustee or other
trustee, agent or representative for any Senior Indebtedness or (b) with
respect to any Senior Indebtedness that does not have any such trustee,
agent or other representative, (i) in the case of such Senior
Indebtedness issued pursuant to an agreement providing for voting
arrangements as among the holders or owners of such Senior Indebtedness,
any holder or owner of such Senior Indebtedness acting with the consent
of the required persons necessary to bind such holders or owners of such
Senior Indebtedness and (ii) in the case of all other such Senior
Indebtedness, the holder or owner of such Senior Indebtedness.
"Repurchase Date" has the meaning specified in Section 14.1.
"Repurchase Price" has the meaning specified in Section 14.1.
"Responsible Officer", when used with respect to the Trustee,
means any officer within the Corporate Trust Office of the Trustee with
direct responsibility for the administration of this Indenture and also
means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge and
familiarity with the particular subject.
"Restricted Global Security" has the meaning specified in Section
2.1.
"Restricted Securities" means all Securities required pursuant to
Section 3.5(3) to bear any Restricted Securities Legend. Such term
includes the Restricted Global Security.
"Restricted Securities Certificate" means a certificate
substantially in the form set forth in Annex A.
"Restricted Securities Legend" means, collectively, the legends
substantially in the forms of the legends required in the form of
Security set forth in Section 2.2 to be placed upon each Restricted
Security.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A Information" has the meaning specified in Section
10.9.
"Securities" has the meaning ascribed to it in the first
paragraph under the caption "Recitals of the Company".
"Securities Act" means the United States Securities Act of 1933
(or any successor statute), as amended from time to time.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Indebtedness" means the principal of (and premium, if
any) and interest (including all interest accruing subsequent to the
commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowable as a claim in any such
proceeding) rent and end of term payments payable on, and, to the extent
not included in the foregoing, all amounts payable as fees, costs,
expenses, liquidated damages, indemnities, repurchase and other put
obligations and other amounts to the extent accrued or due, in connection
with the following, whether secured or unsecured, due or to become due,
outstanding on the date of this Indenture or thereafter created, incurred
or assumed: (a) indebtedness of the Company evidenced by a credit or
loan agreement, note, bond, debenture or other written obligation, (b)
all obligations of the Company for money borrowed, (c) all obligations of
the Company evidenced by a note or similar instrument given in connection
with the acquisition of any businesses, properties or assets of any kind,
(d) obligations of the Company (i) as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally accepted
accounting principles and (ii) as lessee under other leases for
facilities, capital equipment or related assets, whether or not
capitalized, entered into or leased for financing purposes, (e) all
obligations of the Company under interest rate and currency swaps, caps,
floors, collars, hedge agreements, forward contracts or similar
agreements or arrangements, (f) all obligations of the Company with
respect to letters of credit, bankers' acceptances and similar facilities
(including reimbursement obligations with respect to the foregoing), (g)
all obligations of the Company issued or assumed as the deferred purchase
price of property or services (but excluding trade accounts payable and
accrued expenses arising in the ordinary course of business), (h) all
obligations of the type referred to in clauses (a) through (g) above of
another Person and all dividends of another Person, the payment of which,
in either case, the Company has assumed or guaranteed, or for which the
Company is responsible or liable, directly or indirectly, jointly or
severally, as obligor, guarantor or otherwise, or which is secured by a
lien on the property of the Company, and (i) renewals, extensions,
modifications, replacements, restatements and refundings of, or any
indebtedness or obligation issued in exchange for, any such indebtedness
or obligation described in clauses (a) through (h) of this paragraph;
provided, however, that Senior Indebtedness shall not include the
Securities or any such indebtedness or obligation if the terms of such
indebtedness or obligation (or the terms of the instrument under which,
or pursuant to which it is issued) expressly provide that such
indebtedness or obligation is not superior in right of payment to the
Securities.
"Shelf Registration Statement" has the meaning specified in
Section 10.11.
"Significant Subsidiary" means, with respect to any Person, a
Subsidiary of such Person that would constitute a "significant
subsidiary" as such term is defined under Rule 1-02 of Regulation S-X
under the Securities Act and the Exchange Act.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Company pursuant to Section 3.7.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or
such installment of interest is due and payable.
"Subsidiary" means 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 or other similar interests in the corporation which
ordinarily has or have voting power for the election of directors, or
persons performing similar functions, whether at all times or only so
long as no senior class of stock or other interests has or have such
voting power by reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt
as that evidenced by, such particular Security; and, for the purposes of
this definition, any Security authenticated and delivered under Section
3.6 in exchange for or in lieu of a mutilated, destroyed, lost or stolen
Security shall be deemed to evidence the same debt as the mutilated,
destroyed, lost or stolen Security.
"Surrender Certificate" means a certificate substantially in the
form set forth in Annex C.
"Trading Day" means (i) if the Common Stock is quoted on the
Nasdaq National Market or any other system of automated dissemination of
quotations of securities prices, days on which trades may be effected
through such system, (ii) if the Common Stock is listed or admitted for
trading on any national or regional securities exchange, days on which
such national or regional securities exchange is open for business, or
(iii) if the Common Stock is not listed on a national or regional
securities exchange or quoted on the Nasdaq National Market or any other
system of automated dissemination of quotation of securities prices, days
on which the Common Stock is traded regular way in the over-the-counter
market and for which a closing bid and a closing asked price for the
Common Stock are available.
"Trust Indenture Act" means the Trust Indenture Act of 1939, and
the rules and regulations thereunder, as in force at the date as of which
this instrument 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, and the rules and regulations thereunder, 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.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions
and other areas subject to its jurisdiction (its "possessions"
including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa,
Wake Island and the Northern Mariana Islands).
"Unrestricted Securities Certificate" means a certificate
substantially in the form set forth in Annex B.
"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 1.2 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 an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of
any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including
certificates provided for in Section 10.8) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to The Trustee
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only
one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion with respect
to some matters and one or more other such Persons as to other matters,
and any such Person may certify or give an opinion as to such matters in
one or several documents.
Any certificate or opinion of an officer 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, or
in the exercise of reasonable care should know, that the certificate or
opinion or representations with respect to the matters upon which such
certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company or any other Person stating that the
information with respect to such factual matters is in the possession of
the Company or such other Person, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be
consolidated and form one instrument.
SECTION 1.4 Acts of Holders of Securities
(1) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture
to be given or taken by Holders of Securities may be embodied in and
evidenced by (A) one or more instruments of substantially similar tenor
signed by such Holders in person or by an agent or proxy duly appointed
in writing by such Holders or (B) the record of Holders of Securities
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities duly called and held in
accordance with the provisions of Article IX. Such action shall become
effective when such instrument or instruments or record is delivered to
the Trustee and, where it is hereby expressly required, to the Company.
The Trustee shall promptly deliver to the Company copies of all such
instruments and records delivered to the Trustee. Such instrument or
instruments and records (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders
of Securities signing such instrument or instruments and so voting at
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
(subject to Section 6.1) conclusive in favor of the Trustee and the
Company if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided
in Section 9.6.
(2) 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.
(3) The principal amount and serial number of any Security
held by any Person, and the date of his holding the same, shall be proved
by the Security Register.
(4) The fact and date of execution of any such instrument
or writing and the authority of the Person executing the same may also be
proved in any other manner which the Trustee deems sufficient; and the
Trustee may in any instance require further proof with respect to any of
the matters referred to in this Section 1.4.
(5) The Company may, but shall not be obligated to, set any
day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction,
notice, consent, waiver or other action, or to vote on any action,
authorized or permitted by this Indenture to be given or taken by
Holders. Promptly and in any case not later than ten days after setting a
record date, the Company shall notify the Trustee and the Holders of such
record date. If not set by the Company prior to the first solicitation of
a Holder made by any Person in respect of any such action, or, in the
case of any such vote, prior to such vote, the record date for any such
action or vote shall be the 30th day (or, if later, the date of the most
recent list of Holders required to be provided pursuant to Section 15.1)
prior to such first solicitation or vote, as the case may be. With regard
to any record date, the Holders on such date (or their duly appointed
agents or proxies), and only such Persons, shall be entitled to give or
take, or vote on, the relevant action, whether or not such Holders remain
Holders after such record date. Notwithstanding the foregoing, the
Company shall not set a record date for, and the provisions of this
paragraph shall not apply with respect to, any notice, declaration or
direction referred to in the next paragraph. Nothing in this paragraph
shall prevent the Company from setting a new record date for any action
for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically
and with no action by any Person be canceled and of no effect), nor shall
anything in this paragraph be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding
Securities on the date such action is taken.
(6) Upon receipt by the Trustee from any Holder of (i) any
notice of default or breach referred to in Section 5.1(4), if such
default or breach has occurred and is continuing and the Trustee shall
not have given such a notice to the Company, (ii) any declaration of
acceleration referred to in Section 5.2, if an Event of Default has
occurred and is continuing and the Trustee shall not have given such a
declaration to the Company, or (iii) any direction referred to in Section
5.12, if the Trustee shall not have taken the action specified in such
direction, then, with respect to clauses (ii) and (iii), a record date
shall automatically and without any action by the Company or the Trustee
be set for determining the Holders entitled to join in such declaration
or direction, which record date shall be the close of business on the
tenth day (or, if such day is not a Business Day, the first Business Day
thereafter) following the day on which the Trustee receives such
declaration or direction, and, with respect to clause (i), the Trustee
may set any day as a record date for the purpose of determining the
Holders entitled to join in such notice of default. Promptly after such
receipt by the Trustee of any such declaration or direction referred to
in clause (ii) or (iii), and promptly after setting any record date with
respect to clause (i), and as soon as practicable thereafter, the
Trustee shall notify the Company and the Holders of any such record date
so fixed. The Holders on such record date (or their duly appointed agents
or proxies), and only such Persons, shall be entitled to join in such
notice, declaration or direction, whether or not such Holders remain
Holders after such record date; provided that, unless such notice,
declaration or direction shall have become effective by virtue of Holders
of the requisite principal amount of Securities on such record date (or
their duly appointed agents or proxies) having joined therein on or prior
to the 90th day after such record date, such notice, declaration or
direction shall automatically and without any action by any Person be
canceled and of no further effect. Nothing in this paragraph shall be
construed to prevent a Holder (or a duly appointed agent or proxy
thereof) from giving, before or after the expiration of such 90-day
period, a notice, declaration or direction contrary to or different from,
or, after the expiration of such period, identical to, the notice,
declaration or direction to which such record date relates, in which
event a new record date in respect thereof shall be set pursuant to this
paragraph. In addition, nothing in this paragraph shall be construed to
render ineffective any notice, declaration or direction of the type
referred to in this paragraph given at any time to the Trustee and the
Company by Holders (or their duly appointed agents or proxies) of the
requisite principal amount of Securities on the date such notice,
declaration or direction is so given.
(7) Except as provided in Sections 5.12 and 5.13, any
request, demand, authorization, direction, notice, consent, election,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every 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.
(8) The provisions of this Section 1.4 are subject to the
provisions of Section 9.5.
SECTION 1.5 Notices, Etc. to Trustee and Company
Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of Holders of Securities or other document
provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder of Securities or by the
Company shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with a Responsible Officer of the
Trustee and received at its Corporate Trust Office, Attention: Corporate
Trust Administration (Exodus Communications, Inc., 5% Convertible
Subordinated Notes due March 15, 2006).
(2) the Company by the Trustee or by any Holder of
Securities shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing, mailed, first-class
postage prepaid, or telecopied and confirmed by mail, first-class postage
prepaid, or delivered by hand or overnight courier, addressed to the
Company at 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000,
Attention: General Counsel, or at any other address previously furnished
in writing to the Trustee by the Company.
SECTION 1.6 Notice to Holders of Securities;
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event, such notice
shall be sufficiently given to Holders if in writing and mailed,
first-class postage prepaid or delivered by an overnight delivery
service, to each Holder of a Security affected by such event, at the
address of such Holder as it appears in the Security Register, not
earlier than the earliest date and not later than the latest date
prescribed for the giving of such notice.
Neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Security shall affect the
sufficiency of such notice with respect to other Holders of Securities.
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 to Holders of Securities as shall be made with the
approval of the Trustee, which approval shall not be unreasonably
withheld, shall constitute a sufficient notification to such Holders for
every purpose hereunder.
Such notice shall be deemed to have been given when such notice is
mailed.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent
of such notice. Waivers of notice by Holders of Securities shall be filed
with the Trustee, but such filing shall not be a condition precedent to
the validity of any action taken in reliance upon such waiver.
SECTION 1.7 Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 1.9 Separability Clause
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 1.10 Benefits of Indenture
Except as provided in the next sentence, nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other
than the parties hereto and their successors assigns hereunder and the
Holders of Securities, any benefit or legal or equitable right, remedy or
claim under this Indenture. The provisions of Article XIII are intended
to be for the benefit of, and shall be enforceable directly by, the
holders of Senior Indebtedness.
SECTION 1.11 Governing Law
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE
UNITED STATES OF AMERICA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS
OF LAWS.
SECTION 1.12 Legal Holidays
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security or the last day on
which a Holder of a Security has a right to convert his Security shall
not be a Business Day at a Place of Payment or Place of Conversion, as
the case may be, then (notwithstanding any other provision of this
Indenture or of the Securities) payment of principal of, premium, if any,
or interest on, or the payment of the Repurchase Price (whether the same
is payable in cash or in shares of Common Stock) with respect to, or
delivery for conversion of, such Security need not be made at such Place
of Payment or Place of Conversion, as the case may be, on or by such
day, but may be made on or by the next succeeding Business Day at such
Place of Payment or Place of Conversion, as the case may be, with the
same force and effect as if made on the Interest Payment Date,
Redemption Date or Repurchase Date, or at the Stated Maturity or by such
last day for conversion; provided, however, that in the case that payment
is made on such succeeding Business Day, no interest shall accrue on the
amount so payable for the period from and after such Interest Payment
Date, Redemption Date, Repurchase Date, Stated Maturity or last day for
conversion, as the case may be.
SECTION 1.13 Conflict With Trust Indenture Act
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act 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. Until such time as this
Indenture shall be qualified under the Trust Indenture Act, this
Indenture, the Company and the Trustee shall be deemed for all purposes
hereof to be subject to and governed by the Trust Indenture Act to the
same extent as would be the case if this Indenture were so qualified on
the date hereof.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Form Generally
The Securities shall be in substantially the form 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, the Internal Revenue Code of 1986,
as amended, and regulations thereunder (the "Code"), or as may,
consistent herewith, be determined by the officers executing such
Securities, as evidenced by their execution thereof. All Securities
shall be in fully registered form.
The Trustee's certificates of authentication shall be in
substantially the form set forth in Section 2.3.
Conversion notices shall be in substantially the form set forth in
Section 2.4.
Repurchase notices shall be substantially in the form set forth in
Section 2.2.
The Securities shall be printed, lithographed, typewritten or
engraved or produced by any combination of these methods or may be
produced in any other manner permitted by the rules of any automated
quotation system or securities exchange (including on steel engraved
borders if so required by any securities exchange upon which the
Securities may be listed) on which the Securities may be quoted or
listed, as the case may be, all as determined by the officers executing
such Securities, as evidenced by their execution thereof.
Upon their original issuance, Securities issued as contemplated by
the Purchase Agreement to Qualified Institutional Buyers in reliance on
Rule 144A shall be issued in the form of one or more Global Securities in
definitive, fully registered form without interest coupons and bearing
the Restricted Securities Legend. Such Global Security shall be
registered in the name of DTC, as Depositary, or its nominee and
deposited with the Trustee, as custodian for DTC, for credit by DTC to
the respective accounts of beneficial owners of the Securities
represented thereby (or such other accounts as they may direct). Such
Global Security, together with its Successor Securities which are Global
Securities, are collectively herein called the "Restricted Global
Security".
SECTION 2.2 Form of Security
[FORM OF FACE]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH RESTRICTED
SECURITY:
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY THAT IS
A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THIS SECURITY AND ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (I) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 144A, (II) TO AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR"
WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT, (III) PURSUANT TO THE EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE),
OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTION OF
THE UNITED STATES.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED
FROM TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER
TRANSFERS OF THIS SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN
APPLICABLE LAW OR REGULATION (OR THE INTERPRETATION THEREOF) OR IN
PRACTICES RELATING TO THE RESALE OR TRANSFER OF RESTRICTED SECURITIES
GENERALLY. THE HOLDER OF THIS SECURITY AND ANY SUCH SHARES SHALL BE
DEEMED BY THE ACCEPTANCE OF THIS SECURITY AND ANY SUCH SHARES TO HAVE
AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL
SECURITY:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE
DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE
COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES
IN DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN
THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A
WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF
THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR
BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]
EXODUS COMMUNICATIONS, INC.
5% CONVERTIBLE SUBORDINATED NOTE DUE MARCH 15, 2006
No._______________ $ ______________
CUSIP NO.______________
EXODUS COMMUNICATIONS, INC., a corporation duly organized and
existing under the laws of the State of Delaware (herein called the
"Company", which term includes any successor Person under the Indenture
referred to on the reverse hereof), for value received, hereby promises
to pay to _________________, or registered assigns, the principal sum of
________ United States Dollars (U.S.$______ ) [if this Security is a
Global Security, then insert -- (which principal amount may from time to
time be increased or decreased to such other principal amounts (which,
taken together with the principal amounts of all other Outstanding
Securities, shall not exceed $250,000,000 in the aggregate at any time)
by adjustments made on the records of the Trustee hereinafter referred to
in accordance with the Indenture)] on March 15, 2006 and to pay interest
thereon, from March 3, 1999, or from the most recent Interest Payment
Date (as defined below) to which interest has been paid or duly provided
for, semi-annually in arrears on March 15 and September 15 in each year
(each, an "Interest Payment Date"), commencing September 15, 1999, at
the rate of 5% per annum, until the principal hereof is due, and at the
rate of 7% per annum on any overdue principal and premium, if any, and,
to the extent permitted by law, on any overdue interest. The interest so
payable, and punctually paid or duly provided for, on any Interest
Payment Date will, as provided in the Indenture, be paid to the Person in
whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment
Date. Except as otherwise provided in the Indenture, any such interest
not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the
Company, notice whereof shall be given to Holders of Securities not less
than 10 days prior to the Special Record Date, or be paid at any time in
any other lawful manner not inconsistent with the requirements of any
automated quotation system or securities exchange on which the Securities
may be quoted or listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payments of
principal shall be made upon the surrender of this Security at the
option of the Holder at the Corporate Trust Office of the Trustee, or at
such other office or agency of the Company as may be designated by it for
such purpose in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private
debts, or at such other offices or agencies as the Company may designate,
by United States Dollar check drawn on, or transfer to, a United States
Dollar account (such a transfer to be made only to a Holder of an
aggregate principal amount of Securities in excess of U.S.$2,000,000, and
only if such Holder shall have furnished wire instructions in writing to
the Trustee no later than 15 days prior to the relevant payment date).
Payment of interest on this Security may be made by United States Dollar
check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register, or, upon written
application by the Holder to the Security Registrar setting forth wire
instructions not later than the relevant Record Date, by transfer to a
United States Dollar account (such a transfer to be made only to a Holder
of an aggregate principal amount of Securities in excess of U.S.
$2,000,000 and only if such Holder shall have furnished wire instructions
in writing to the Trustee no later than 15 days prior to the relevant
payment date).
Except as specifically provided herein and in the Indenture, the
Company shall not be required to make any payment with respect to any
tax, assessment or other governmental charge imposed by any government or
any political subdivision or taxing authority thereof or therein.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof or an Authenticating
Agent by the manual signature of one of their respective authorized
signatories, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed.
EXODUS COMMUNICATIONS, INC.
By:__________________________________
Name:
Title:
Attest:
By:_______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
Dated:
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:__________________________________
Authorized Signatory
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of
the Company designated as its "5% Convertible Subordinated Notes due
March 15, 2006" (herein called the "Securities"), limited in aggregate
principal amount to U.S. $250,000,000, issued and to be issued under an
Indenture, dated as of March 1, 1999 (herein called the "Indenture"),
between the Company and Chase Manhattan Bank and Trust Company, National
Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture
and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior
Indebtedness and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. 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 any authorized denominations as requested by the Holder
surrendering the same upon surrender of the Security or Securities to be
exchanged, at the Corporate Trust Office of the Trustee. The Trustee upon
such surrender by the Holder will issue the new Securities in the
requested denominations.
No sinking fund is provided for the Securities. The Securities
will not be subject to redemption prior to March 20, 2001 and will be
redeemable on and after that date at the option of the Company, in whole
or in part, upon not less than 30 nor more than 60 days notice to the
Holders prior to the Redemption Date at the Redemption Prices (expressed
as percentages of the principal amount) set forth below; provided,
however, that the Securities will not be redeemable at the option of the
Company on or after March 20, 2001 and before March 20, 2003 unless the
last reported bid price for the Common Stock equals or exceeds 140% of
the conversion price for at least 20 trading days within a period of 30
consecutive trading days ending within five trading days of the call for
redemption.
The following table sets forth the Redemption Prices (expressed as
percentages of the principal amount) if such Security is redeemed during
the 12-month periods beginning on March 20 of the years indicated below:
YEAR REDEMPTION PRICE
----- ----------------
2001 103.57%
2002 102.86
2003 102.14
2004 101.43
2005 100.71
and thereafter at a Redemption Price equal to 100% of the principal
amount, together, in each case, with accrued interest to the Redemption
Date; provided, however, that interest installments on Securities whose
Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of
record at the close of business on the relevant Record Dates referred to
on the face hereof, all as provided in the Indenture.
In the event of a redemption of the Securities, the Company will
not be required (a) to register the transfer or exchange of Securities
for a period of 15 days immediately preceding the date notice is given
identifying the serial numbers of the Securities called for such
redemption or (b) to register the transfer or exchange of any Security,
or portion thereof, called for redemption.
In any case where the due date for the payment of the principal of,
premium, if any, interest, or Liquidated Damages on any Security or the
last day on which a Holder of a Security has a right to convert his
Security shall be, at any Place of Payment or Place of Conversion as the
case may be, a day on which banking institutions at such Place of Payment
or Place of Conversion are authorized or obligated by law or executive
order to close, then payment of principal, premium, if any, interest, or
Liquidated Damages, or delivery for conversion of such Security need not
be made on or by such date at such place but may be made on or by the
next succeeding day at such place which is not a day on which banking
institutions are authorized or obligated by law or executive order to
close, with the same force and effect as if made on the date for such
payment or the date fixed for redemption or repurchase, or by such last
day for conversion, and no interest shall accrue on the amount so payable
for the period after such date.
Subject to and upon compliance with the provisions of the
Indenture, the Holder of this Security is entitled, at his option, at any
time following the initial issuance date of the Securities and on or
before the close of business on the date of Maturity, or in case this
Security or a portion hereof is called for redemption or the Holder
hereof has exercised his right to require the Company to repurchase this
Security or such portion hereof, then in respect of this Security until
and including, but (unless the Company defaults in making the payment due
upon redemption or repurchase, as the case may be) not after, the close
of business on the Redemption Date or the Repurchase Date, as the case
may be, to convert this Security (or any portion of the principal amount
hereof that is an integral multiple of U.S.$1,000, provided that the
unconverted portion of such principal amount is U.S.$1,000 or any
integral multiple of U.S.$1,000 in excess thereof) into fully paid and
nonassessable shares of Common Stock of the Company at an initial
Conversion Rate of 10.9463 shares of Common Stock for each U.S.$1,000
principal amount of Securities (or at the current adjusted Conversion
Rate if an adjustment has been made as provided in the Indenture) by
surrender of this Security, duly endorsed or assigned to the Company or
in blank, with the conversion notice hereon duly executed and, in case
such surrender shall be made during the period from the close of business
on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date (except if this
Security or portion thereof has been called for redemption on a
Redemption Date during the period from such Regular Record Date through
the date that is three Business Days following such Interest Payment
Date), also accompanied by payment in New York Clearing House or other
funds acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of this
Security then being converted, to the Company at the Corporate Trust
Office of the Trustee, or at such other office or agency of the Company,
subject to any laws or regulations applicable thereto and subject to the
right of the Company to terminate the appointment of any Conversion Agent
(as defined below) as may be designated by it for such purpose in the
Borough of Manhattan, The City of New York, or at such other offices or
agencies as the Company may designate (each a "Conversion Agent").
Subject, in the case of a conversion after the close of business on the
Regular Record Date next preceding any Interest Payment Date and on or
before the close of business on such Interest Payment Date, to the right
of the Holder of this Security (or any Predecessor Security of record as
of such Regular Record Date) to receive the related installment of
interest to the extent and under the circumstances provided in the
Indenture, no cash payment or adjustment is to be made on conversion for
interest accrued hereon from the Interest Payment Date next preceding the
day of conversion, or for dividends on the Common Stock issued on
conversion hereof. The Company shall thereafter deliver to the Holder
the fixed number of shares of Common Stock (together with any cash
adjustment, as provided in the Indenture) into which this Security is
convertible and such delivery will be deemed to satisfy the Company's
obligation to pay the principal amount of this Security. No fractions of
shares or scrip representing fractions of shares will be issued on
conversion, but instead of any fractional interest (calculated to the
nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture. The Conversion Rate is subject to adjustment
as provided in the Indenture. In addition, the Indenture provides that in
case of certain consolidations or mergers to which the Company is a party
(other than a consolidation or merger that does not result in any
reclassification, conversion, exchange or cancellation of the Common
Stock) or the conveyance, transfer, sale or lease of all or substantially
all of the property and assets of the Company, the Indenture shall be
amended, without the consent of any Holders of Securities, so that this
Security, if then Outstanding, will be convertible thereafter, during the
period this Security shall be convertible as specified above, only into
the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, conveyance, transfer, sale or lease by a
holder of the number of shares of Common Stock of the Company into which
this Security could have been converted immediately prior to such
consolidation, merger, conveyance, transfer, sale or lease (assuming such
holder of Common Stock is not a Constituent Person or an Affiliate of a
Constituent Person, failed to exercise any rights of election and
received per share the kind and amount received per share by a plurality
of Non-electing Shares). No adjustment in the Conversion Rate will be
made until such adjustment would require an increase or decrease of at
least one percent of such rate, provided that any adjustment that would
otherwise be made will be carried forward and taken into account in the
computation of any subsequent adjustment.
If this Security is a Registrable Security (as defined in this
Indenture), then the Holder of this Security [if this security is a
global security, then insert -- (including any Person that has a
beneficial interest in this Security)] and the Common Stock of the
Company issuable upon conversion hereof is entitled to the benefits of
the Registration Rights Agreement, dated as of March 1, 1999 (the
"Registration Rights Agreement"), between the Company and the Initial
Purchasers, as such agreement may be amended from time to time. Pursuant
to the Registration Rights Agreement, the Company has agreed for the
benefit of the Holders from time to time of the Registrable Securities
that it will, at its expense, (a) within 90 days after the Issue Date
file a shelf registration statement (the "Shelf Registration
Statement") with the Commission with respect to resales of the
Registrable Securities, (b) use all reasonable efforts to cause such
Shelf Registration Statement to be declared effective by the Commission
within 180 days after the Issue Date of the Securities, provided,
however, that the Company may, upon written notice to all the Holders,
postpone having the Shelf Registration Statement declared effective for a
reasonable period not to exceed 90 days if the Company possesses material
non-public information, the disclosure of which would have a material
adverse effect on the Company and its subsidiaries taken as a whole, and
(c) use all reasonable efforts to maintain such Shelf Registration
Statement effective under the Securities Act of 1933, as amended, until
the second annual anniversary of the date it is declared effective or
such earlier date as is provided in the Registration Rights Agreement
(the "Effectiveness Period"). The Company will be permitted to suspend
the use of the prospectus which is part of the Shelf Registration
Statement during certain periods of time as provided in the Registration
Rights Agreement.
If (i) on or prior to 90 days following the Issue Date, a Shelf
Registration Statement has not been filed with the Commission, or (ii) on
or prior to the 180th day following the Issue Date, such Shelf
Registration Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on
this Restricted Security from and including the day following such
Registration Default to but excluding the day on which such Registration
Default has been cured. Liquidated Damages will be paid semi-annually in
arrears, with the first semi-annual payment due on the first Interest
Payment Date, as applicable, in respect of the Restricted Securities
following the date on which such Liquidated Damages begin to accrue, and
will accrue at a rate per annum equal to an additional one-quarter of one
percent (0.25%) of the principal amount of the Restricted Securities to
and including the 90th day following such Registration Default and at a
rate per annum equal to one-half of one percent (0.50%) thereof from and
after the 91st day following such Registration Default. Pursuant to the
Registration Rights Agreement, in the event that the Shelf Registration
Statement ceases to be effective (or the Holders of Registrable
Securities are otherwise prevented or restricted by the Company from
effecting sales pursuant thereto) (an "Effective Failure") during the
Effectiveness Period for more than 45 days, whether or not consecutive,
during any 90 day period, or for more than 90 days, whether or not
consecutive, during any 12-month period, then the interest rate borne by
the Restricted Securities shall increase by an additional one-half of one
percent (0.50%) per annum from the 46th day of the applicable 90 day
period or the 91st day of the applicable 12-month period, as the case may
be, until such time as the Effective Failure is cured.
Whenever in this Security there is a reference, in any context, to
the payment of the principal of, premium, if any, or interest on, or in
respect of, any Security, such mention shall be deemed to include mention
of the payment of Liquidated Damages payable as described in the
preceding paragraph to the extent that, in such context, Liquidated
Damages are, were or would be payable in respect of such Security and
express mention of the payment of Liquidated Damages (if applicable) in
any provisions of this Security shall not be construed as excluding
Liquidated Damages in those provisions of this Security where such
express mention is not made.
[If this Security is a Registrable Security and the Holder of this
Security [if this security is a global security, then insert --
(including any Person that has a beneficial interest in this Security)]
elects to sell this Security pursuant to the Shelf Registration Statement
then, by its acceptance hereof, such Holder of this Security agrees to be
bound by the terms of the Registration Rights Agreement relating to the
Registrable Securities which are the subject of such election.]
If a Change in Control occurs, the Holder of this Security, at the
Holder's option, shall have the right, in accordance with the provisions
of the Indenture, to require the Company to repurchase this Security (or
any portion of the principal amount hereof that is an integral multiple
of $1,000 for cash at a Repurchase Price equal to 100% of the principal
amount thereof plus interest accrued to the Repurchase Date. At the
option of the Company, the Repurchase Price may be paid in cash or,
subject to the conditions provided in the Indenture, by delivery of
shares of Common Stock having a fair market value equal to the Repurchase
Price. For purposes of this paragraph, the fair market value of shares of
Common Stock shall be determined by the Company and shall be equal to 95%
of the average of the Closing Prices Per Share for the five consecutive
Trading Days immediately preceding and including the third Trading Day
prior to the Repurchase Date. Whenever in this Security there is a
reference, in any context, to the principal of any Security as of any
time, such reference shall be deemed to include reference to the
Repurchase Price payable in respect of such Security to the extent that
such Repurchase Price is, was or would be so payable at such time, and
express mention of the Repurchase Price in any provision of this Security
shall not be construed as excluding the Repurchase Price so payable in
those provisions of this Security when such express mention is not made;
provided, however, that, for the purposes of the second succeeding
paragraph, such reference shall be deemed to include reference to the
Repurchase Price only to the extent the Repurchase Price is payable in
cash.
[The following paragraph shall appear in each Global Security:
In the event of a deposit or withdrawal of an interest in this
Security, including an exchange, transfer, redemption, repurchase or
conversion of this Security in part only, the Trustee, as custodian of
the Depositary, shall make an adjustment on its records to reflect such
deposit or withdrawal in accordance with the Applicable Procedures.]
[The following paragraph shall appear in each Security that is not
a Global Security:
In the event of redemption, repurchase or conversion of this
Security in part only, a new Security or Securities for the unredeemed,
unrepurchased or unconverted portion hereof will be issued in the name of
the Holder hereof.]
The indebtedness evidenced by this Security is, to the extent and
in the manner provided in the Indenture, subordinate and subject in right
of payment to the prior payment in full of all Senior Indebtedness of
the Company, and this Security is issued subject to such provisions of
the Indenture with respect thereto. Each Holder of this Security, by
accepting the same, (a) agrees to and shall be bound by such provisions,
(b) authorizes and directs the Trustee on his behalf to take such action
as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and
all such purposes.
If an Event of Default shall occur and be continuing, the principal
of all the Securities, together with accrued interest to the date of
declaration, may be declared due and payable in the manner and with the
effect provided in the Indenture. Upon payment (i) of the amount of
principal so declared due and payable, together with accrued interest to
the date of declaration, and (ii) of interest on any overdue principal
and, to the extent permitted by applicable law, overdue interest, all of
the Company's obligations in respect of the payment of the principal of
and interest on the Securities shall terminate.
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 either (a) the
written consent of the Holders of not less than a majority in principal
amount of the Securities at the time Outstanding, or (b) by the adoption
of a resolution, at a meeting of Holders of the Outstanding Securities at
which a quorum is present, by the Holders of at least 66-2/3% in
aggregate principal amount of the Outstanding Securities represented and
entitled to vote at such meeting. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of
the Securities at the time Outstanding, 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 this
Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued in exchange
therefore or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security or such other Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any
proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such
Holder shall have previously given the Trustee written notice of a
continuing Event of Default, the Holders of not less than 25% in
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 and
the Trustee shall not have received from the Holders of a majority in
principal amount of the Securities Outstanding a direction inconsistent
with such request, and shall have failed to institute any such
proceeding, for 60 days after receipt of such notice, request and offer
of indemnity. The foregoing shall not apply to any suit instituted by the
Holder of this Security for the enforcement of any payment of principal
hereof, premiums if any, or interest (including Liquidated Damages)
hereon on or after the respective due dates expressed herein or for the
enforcement of the right to convert this Security as provided in the
Indenture.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of,
premium, if any, and interest (including Liquidated Damages) on this
Security at the times, places and rate, and in the coin or currency,
herein prescribed or to convert this Security as provided in the
Indenture.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable on the
Security Register upon surrender of this Security for registration of
transfer at the Corporate Trust Office of the Trustee or at such other
office or agency of the Company as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York (which shall
initially be an office or agency of the Trustee), or at such other
offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the Holder
thereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee
or transferees by the Registrar. No service charge shall be made for any
such registration of transfer or exchange, but the Company may require
payment of a sum sufficient to recover any tax or other governmental
charge payable in connection therewith.
Prior to due presentation of a this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered,
as the owner thereof for all purposes, whether or not such Security be
overdue, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
No recourse for the payment of the principal (and premium, if any)
or interest on this Security and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any
indenture supplemental thereto or in any Security, or because of the
creation of any indebtedness represented thereby, shall be had against
any incorporator, stockholder, employee, agent, officer or director or
subsidiary, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or
rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part
of consideration for the issue hereof, expressly waived and released.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF
AMERICA, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription of the
face of this Security, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM as tenant in common
TEN ENT as tenants by the entireties (Cust)
JT TEN as joint tenants with right
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT ____ Custodian _____
(Cust) (Minor)
under Uniform
Gifts to Minors Act _____
(State)
Additional abbreviations may also be used though not in the above
list.
ELECTION OF HOLDER TO REQUIRE REPURCHASE
(1) Pursuant to Article 14.1 of the Indenture, the undersigned
hereby elects to have this Security repurchased by the Company.
(2) The undersigned hereby directs the Trustee or the Company to
pay it or ______________ an amount in cash or, at the Company's election,
Common Stock valued as set forth in the Indenture, equal to 100% of the
principal amount to be repurchased (as set forth below), plus interest
accrued to the Repurchase Date, as provided in the Indenture.
Dated:
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934.
Signature Guaranteed
Principal amount to be repurchased (at least
U.S. $5,000 or an integral multiple of $1,000
in excess thereof): ___________________
Remaining principal amount following such
repurchase (not less than U.S. $1,000):
______________
NOTICE: The signature to the foregoing Election must correspond to the
Name as written upon the face of this Security in every particular,
without alteration or any change whatsoever.
SECTION 2.3 Form of Certificate of Authentication
The Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:
CHASE MANHATTAN BANK AND TRUST COMPANY,
NATIONAL ASSOCIATION, as Trustee
By:___________________________________________
Authorized Signatory
SECTION 2.4 Form of Conversion Notice
CONVERSION NOTICE
The undersigned Holder of this Security hereby irrevocably
exercises the option to convert this Security, or any portion of the
principal amount hereof (which is U.S.$1,000 or an integral multiple of
U.S.$1,000 in excess thereof, provided that the unconverted portion of
such principal amount is U.S. $1,000 or any integral multiple of U.S.
$1,000 in excess thereof) below designated, into shares of Common Stock
in accordance with the terms of the Indenture referred to in this
Security, and directs that such shares, together with a check in payment
for any fractional share and any Securities representing any unconverted
principal amount hereof, be delivered to and be registered in the name of
the undersigned unless a different name has been indicated below. If
shares of Common Stock or Securities are to be registered in the name of
a Person other than the undersigned, (a) the undersigned will pay all
transfer taxes payable with respect thereto and (b) signature(s) must be
guaranteed by an Eligible Guarantor Institution with membership in an
approved signature guarantee program pursuant to Rule 17Ad-15 under the
Securities Exchange Act of 1934. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.
Dated: ______________ Signature(s)________________________
If shares or Securities are to be registered in the
name of a Person other than the Holder, please
print such Person's name and address:
(Name)
(Address)
Social Security or other Identification
Number, if any
[Signature Guaranteed]
If only a portion of the Securities is to be converted, please indicate:
1. Principal amount to be converted: U.S. $ ___________
2. Principal amount and denomination of Securities
representing unconverted principal amount to be issued:
Amount: U.S. $___________ Denominations: U.S. $____________
(U.S.$1,000 or any integral multiple of U.S.$1,000 in excess thereof,
provided that the unconverted portion of such principal amount is U.S.
$1,000 or any integral multiple of U.S. $1,000 in excess thereof)
SECTION 2.5 Form of Assignment
For value received ________________ hereby sell(s), assign(s) and
transfer(s) unto ________________ (Please insert social security or other
identifying number of assignee) the within Security, and hereby
irrevocably constitutes and appoints ____________________as attorney to
transfer the said Security on the books of the Company, with full power
of substitution in the premises.
Dated:_____________________
Dated: ______________
______________________________________
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad-15 under the Securities Exchange
Act of 1934.
______________________________________
Signature Guarantee
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to U.S.
$250,000,000, except for Securities authenticated and delivered pursuant
to Section 3.4, 3.5, 3.6, 8.5, 11.7, 12.2 or 14.3(5) in exchange for, or
in lieu of, other Securities previously authenticated and delivered under
this Indenture.
The Securities shall be known and designated as the "5%
Convertible Subordinated Notes due March 15, 2006" of the Company.
Their Stated Maturity shall be March 15, 2006 and they shall bear
interest on their principal amount from March 3, 1999, payable
semi-annually in arrears on March 15 and September 15 in each year,
commencing September 15, 1999, at the rate of 5.0% per annum until the
principal thereof is due and at the rate of 7.0% per annum on any overdue
principal and, to the extent permitted by law, on any overdue interest;
provided, however, that payments shall only be made on a Business Day as
provided in Section 1.12.
The principal of, premium, if any, and interest on the Securities
shall be payable as provided in the form of Securities set forth in
Section 2.2, and the Repurchase Price, whether payable in cash or in
shares of Common Stock, shall be payable at such places as are identified
in the Offer to Purchase given pursuant to Section 14.3 (any city in
which any Paying Agent is located being herein called a "Place of
Payment").
The Registrable Securities are entitled to the benefits of a
Registration Rights Agreement as provided by Section 10.11 and in the
form of Security set forth in Section 2.2. The Securities are entitled to
the payment of Liquidated Damages as provided by Section 10.11.
The Securities shall be redeemable at the option of the Company at
any time on or after June 20, 2001, in whole or in part, subject to the
conditions and as otherwise provided in Article XI and in the form of
Security set forth in Section 2.2.
The Securities shall be convertible as provided in Article XII (any
city in which any Conversion Agent is located being herein called a
"Place of Conversion").
The Securities shall be subordinated in right of payment to Senior
Indebtedness of the Company as provided in Article XIII.
The Securities shall be subject to repurchase by the Company at the
option of the Holders as provided in Article XIV.
SECTION 3.2 Denominations
The Securities shall be issuable only in registered form, without
coupons, in denominations of U.S.$1,000 and integral multiples of
U.S.$1,000 in excess thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its Chief
Executive Officer, its President, one of its Executive Vice Presidents or
one of its Vice Presidents, and attested by its Chief Financial Officer,
Secretary or one of its Assistant Secretaries. Any such signature may be
manual or facsimile.
Securities bearing the manual or facsimile signature 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 or to its order for authentication, together with
a Company Order for the authentication and delivery of such Securities,
and the Trustee in accordance with such Company Order shall authenticate
and make available for delivery such Securities as in this Indenture
provided.
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 of an
authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been
duly authenticated and delivered hereunder.
SECTION 3.4 Global Securities; Non-global Securities; Book-entry
Provisions
(1) Global Securities
(i) Each Global Security authenticated under
this Indenture shall be registered in the name of the Depositary
designated by the Company for such Global Security or a nominee thereof
and delivered to such Depositary or a nominee thereof or custodian
therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(ii) Except for exchanges of Global Securities
for definitive, non-Global Securities at the sole discretion of the
Company, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or
in part may be registered, in the name of any Person other than the
Depositary for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be
a clearing agency registered as such under the Exchange Act or announces
an intention permanently to cease business or does in fact do so, and a
successor Depositary is not appointed by the Company within 90 days after
it receives notice or becomes aware of such ineligibility, or (B) there
shall have occurred and be continuing an Event of Default with respect to
such Global Security. In such event, the Company will execute, and the
Trustee, upon receipt of an Officers' Certificate directing the
authentication and delivery of Securities, will authenticate and deliver,
Securities, in any authorized denominations in an aggregate principal
amount equal to the principal amount of such Global Security in exchange
for such Global Security.
(iii) If any Global Security is to be exchanged
for other Securities or canceled in whole, it shall be surrendered by or
on behalf of the Depositary or its nominee to the Trustee, as Security
Registrar, for exchange or cancellation, as provided in this Article III.
If any Global Security is to be exchanged for other Securities or
canceled in part, or if another Security is to be exchanged in whole or
in part for a beneficial interest in any Global Security, in each case,
as provided in Section 3.5, then either (A) such Global Security shall be
so surrendered for exchange or cancellation, as provided in this Article
III, or (B) the principal amount thereof shall be reduced or increased by
an amount equal to the portion thereof to be so exchanged or canceled, or
equal to the principal amount of such other Security to be so exchanged
for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Trustee, as Security
Registrar, whereupon the Trustee, in accordance with the Applicable
Procedures, shall instruct the Depositary or its authorized
representative to make a corresponding adjustment to its records. Upon
any such surrender or adjustment of a Global Security, the Trustee shall,
subject to Section 3.5(3) and as otherwise provided in this Article III,
authenticate and deliver any Securities issuable in exchange for such
Global Security (or any portion thereof) to or upon the order of, and
registered in such names as may be directed by, the Depositary or its
authorized representative. Upon the request of the Trustee in connection
with the occurrence of any of the events specified in the preceding
paragraph, the Company shall promptly make available to the Trustee a
reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to rely upon any order,
direction or request of the Depositary or its authorized representative
which is given or made pursuant to this Article III if such order,
direction or request is given or made in accordance with the Applicable
Procedures.
(iv) Every Security authenticated and delivered
upon registration of transfer of, or in exchange for or in lieu of, a
Global Security or any portion thereof, whether pursuant to this Article
III or otherwise, shall be authenticated and delivered in the form of,
and shall be, a registered Global Security, unless such Security is
registered in the name of a Person other than the Depositary for such
Global Security or a nominee thereof, in which case such Security shall
be authenticated and delivered in definitive, fully registered form,
without interest coupons.
(v) The Depositary or its nominee, as
registered owner of a Global Security, shall be the Holder of such Global
Security for all purposes under the Indenture and the Securities, and
owners of beneficial interests in a Global Security shall hold such
interests pursuant to the Applicable Procedures. Accordingly, any such
owner's beneficial interest in a Global Security will be shown only on,
and the transfer of such interest shall be effected only through, records
maintained by the Depositary or its nominee or its Agent Members and such
owners of beneficial interests in a Global Security will not be
considered the owners or holders thereof.
(2) Non-Global Securities. Securities issued upon the
events described in Section 3.4(l)(ii) shall be in definitive, fully
registered form, without interest coupons, and shall bear the Restricted
Securities Legend if and as required by this Indenture.
SECTION 3.5 Registration; Registration of Transfer and Exchange;
Restrictions on Transfer
(1) The Company shall cause to be kept at the Corporate
Trust Office of the Trustee a register (the register maintained in such
office 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" for
the purpose of registering Securities and transfers and exchanges 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 10.2 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 bearing such restrictive
legends as may be required by this Indenture.
At the option of the Holder, and subject to the other provisions of
this Section 3.5, Securities may be exchanged for other Securities of any
authorized denomination and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at any such office or agency.
Whenever any Securities are so surrendered for exchange, and subject to
the other provisions of this Section 3.5, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive. Every Security
presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Security Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in
writing.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the 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.
No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities except as provided in Section 3.6, but
the Company may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4, 8.5, 12.2 or 14.3 (other than where the shares
of Common Stock are to be issued or delivered in a name other than that
of the Holder of the Security) not involving any transfer and other than
any stamp and other duties, if any, which may be imposed in connection
with any such transfer or exchange by the United States or any political
subdivision thereof or therein, which shall be paid by the Company.
In the event of a redemption of the Securities, neither the Company
nor the Securities Registrar will be required (a) to register the
transfer of or exchange Securities for a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities called for such redemption or (b) to register the transfer of
or exchange any Security, or portion thereof, called for redemption.
(2) Certain Transfers and Exchanges. Notwithstanding any
other provision of this Indenture or the Securities, transfers and
exchanges of Securities and beneficial interests in a Global Security of
the kinds specified in this Section 3.5(2) shall be made only in
accordance with this Section 3.5(2).
(i) Restricted Global Security to Restricted
Non-global Security. In the event that non-Global Securities are to be
issued pursuant to Section 3.4(1)(ii) in connection with any transfer of
Securities, such transfer may be effected only in accordance with the
provisions of this Clause (2)(i) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A) a
Company Order from the Company directing the Trustee, as Security
Registrar, to (x) authenticate and deliver one or more Securities of the
same aggregate principal amount as the beneficial interest in the
Restricted Global Security to be transferred, such instructions to
contain the name or names of the designated transferee or transferees,
the authorized denomination or denominations of the Securities to be so
issued and appropriate delivery instructions and (y) decrease the
beneficial interest of a specified Agent Member's account in a Restricted
Global Security by a specified principal amount not greater than the
principal amount of such Restricted Global Security, and (B) such other
certifications, legal opinions or other information as the Company or the
Trustee may reasonably require 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, then the Trustee, as
Security Registrar, shall decrease the principal amount of the Restricted
Global Security by the specified amount and authenticate and deliver
Securities in accordance with such instructions from the Company as
provided in Section 3.4(1)(iii).
(ii) Restricted Non-global Security to
Restricted Global Security. If the Holder of a Restricted Security
(other than a Global Security) wishes at any time to transfer all or any
portion of such Restricted Security to a Person who wishes to take
delivery thereof in the form of a beneficial interest in the Restricted
Global Security, such transfer may be effected only in accordance with
the provisions of this Clause (2)(ii) and subject to the Applicable
Procedures. Upon receipt by the Trustee, as Security Registrar, of (A)
such Restricted Security as provided in Section 3.5(1) and instructions
from the Company directing that a beneficial interest in the Restricted
Global Security in a specified principal amount not greater than the
principal amount of such Security be credited to a specified Agent
Member's account and (B) a Restricted Securities Certificate,
satisfactory to the Trustee and duly executed by such Holder or his
attorney duly authorized in writing, then the Trustee, as Security
Registrar, shall cancel such Restricted Security (and issue a new
Restricted Security in respect of any untransferred portion thereof) as
provided in Section 3.5(1) and increase the principal amount of the
Restricted Global Security by the specified principal amount as provided
in Section 3.4(1)(iii).
(iii) Exchanges Between Global Security and
Non-global Security. A beneficial interest in a Global Security may be
exchanged for a Security that is not a Global Security only as provided
in Section 3.4 and only if such exchange occurs in connection with a
transfer effected in accordance with Clause 2(i) above, provided that, if
such interest is a beneficial interest in the Restricted Global Security,
then such interest shall be exchanged for a Restricted Security (subject
in each case to Section 3.5(3)). A Security that is not a Global Security
may be exchanged for a beneficial interest in a Global Security only if
such exchange occurs in connection with a transfer effected in accordance
with Clause (2)(ii) above.
(3) Securities Act Legends. All Securities issued pursuant
to this Indenture, and all Successor Securities, shall bear the
Restricted Securities Legend, subject to the following:
(i) subject to the following Clauses of this
Section 3.5(3), a Security or any portion thereof which is exchanged,
upon transfer or otherwise, for a Global Security or any portion thereof
shall bear the Restricted Securities Legend borne by such Global Security
for which the Security was exchanged;
(ii) subject to the following Clauses of this
Section 3.5(3), a new Security which is not a Global Security and is
issued in exchange for another Security (including a Global Security) or
any portion thereof, upon transfer or otherwise, shall bear the
Restricted Securities Legend borne by the Security for which the new
Security was exchanged;
(iii) any Securities which are sold or otherwise
disposed of pursuant to an effective registration statement under the
Securities Act (including the Shelf Registration Statement), together
with their Successor Securities shall not bear a Restricted Securities
Legend; the Company shall inform the Trustee in writing of the effective
date of any such registration statement registering the Securities under
the Securities Act and shall notify the Trustee at any time when
prospectuses must be delivered with respect to Securities to be sold
pursuant to such registration statement. The Trustee shall not be liable
for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned registration statement;
(iv) at any time after the Securities may be
freely transferred without registration under the Securities Act or
without being subject to transfer restrictions pursuant to the Securities
Act, a new Security which does not bear a Restricted Securities Legend
may be issued in exchange for or in lieu of a Security (other than a
Global Security) or any portion thereof which bears such a legend if the
Trustee has received an Unrestricted Securities Certificate, satisfactory
to the Trustee and duly executed by the Holder of such Security bearing a
Restricted Securities Legend or his attorney duly authorized in writing,
and after such date and receipt of such certificate, the Trustee shall
authenticate and deliver such new Security in exchange for or in lieu of
such other Security as provided in this Article III;
(v) a new Security which does not bear a
Restricted Securities Legend may be issued in exchange for or in lieu of
a Security (other than a Global Security) or any portion thereof which
bears such a legend if, in the Company's judgment, placing such a legend
upon such new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at the
direction of the Company, shall authenticate and deliver such a new
Security as provided in this Article III; and
(vi) notwithstanding the foregoing provisions of
this Section 3.5(3), a Successor Security of a Security that does not
bear a Restricted Securities Legend shall not bear such legend unless the
Company has reasonable cause to believe that such Successor Security is a
"restricted security" within the meaning of Rule 144, in which case the
Trustee, at the direction of the Company, shall authenticate and deliver
a new Security bearing a Restricted Securities Legend in exchange for
such Successor Security as provided in this Article III.
(4) Any stock certificate representing shares of Common
Stock issued upon conversion of the Securities shall bear the Restricted
Securities Legend borne by such Securities, to the extent required by
this Indenture, unless such shares of Common Stock have been sold
pursuant to a registration statement that has been declared effective
under the Securities Act (and which continues to be effective at the time
of such transfer) or sold pursuant to Rule 144 of the Securities Act, or
unless otherwise agreed by the Company in writing with written notice
thereof to the transfer agent for the Common Stock. With respect to the
transfer of shares of Common Stock issued upon conversion of the
Securities that are restricted hereunder, any deliveries of certificates,
legal opinions or other instruments that would be required to be made to
the Security Registrar in the case of a transfer of Securities, as
described above, shall instead be made to the transfer agent for the
Common Stock.
(5) Neither the Trustee, the Paying Agent nor any of their
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 on any transfers or exchanges other than as
specifically required hereunder.
SECTION 3.6 Mutilated, Destroyed, Lost or 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 be delivered to the Company and to the Trustee:
(1) evidence to their satisfaction of the destruction, loss
or theft of any Security, and
(2) such security or indemnity as may be satisfactory to
the Company and the Trustee to save each of them and any agent of either
of them harmless, then, in the absence of actual notice to the Company or
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, but subject to any conversion rights, may, instead of issuing
a new Security, pay such Security, upon satisfaction of the conditions
set forth in the preceding paragraph.
Upon the issuance of any new Security under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto (other
than any stamp and other duties, if any, which may be imposed in
connection therewith by the United States or any political subdivision
thereof or therein, which shall be paid by the Company) and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section 3.6 in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not
the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and such new Security shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all
other Securities duly issued hereunder.
The provisions of this Section 3.6 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies of any Holder with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved
Interest on any Security which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record
Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date
(herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security, the date of the proposed payment
and the Special Record Date, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted Interest
as in this Clause provided. The Special Record Date for the payment of
such Defaulted Interest shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder at such Holder's address as it appears in the
Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause,
such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section
3.5, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Security.
Interest on any Security which is converted in accordance with
Section 12.2 during a Record Date Period shall be payable in accordance
with the provisions of Section 12.2.
SECTION 3.8 Persons Deemed Owners
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee, any Paying Agent or the Security
Registrar, and any agent of the Company, the Trustee or any Paying Agent
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 principal of, premium, if any, and (subject to
Section 3.7) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee, any Paying Agent, the Security Registrar nor any
agent of the Company, the Trustee or any Paying Agent or the Security
Registrar shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests,
and each shall be protected in acting on any such information provided by
the Depositary.
SECTION 3.9 Cancellation
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange or conversion shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee. All
Securities so delivered to the Trustee shall be canceled promptly by the
Trustee (or its agent). No Securities shall be authenticated in lieu of
or in exchange for any Securities canceled as provided in this Section
3.9. The Trustee shall dispose of all canceled Securities in accordance
with applicable law and its customary practices in effect from time to
time.
SECTION 3.10 Computation of Interest
Interest on the Securities (including any interest upon overdue
interest or Liquidated Damages) shall be computed on the basis of a
360-day year of twelve 30-day months.
SECTION 3.11 Cusip Numbers
The Company in issuing Securities may use "CUSIP" numbers (if
then generally in use) in addition to serial numbers; if so, the Trustee
shall use such CUSIP numbers in addition to serial numbers in notices of
redemption and repurchase as a convenience to Holders; provided that any
such notice may state that no representation is made as to the
correctness of such CUSIP numbers either as printed on the Securities or
as contained in any notice of a redemption or repurchase and that
reliance may be placed only on the serial or other identification numbers
printed on the Securities, and any such redemption or repurchase shall
not be affected by any defect in or omission of such CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction And Discharge of Indenture
This Indenture shall upon Company Request cease to be of further
effect (except as to any surviving rights of conversion, or registration
of transfer or exchange, or replacement of Securities herein expressly
provided for and any right to receive Liquidated Damages as provided in
Section 10.11 and in the form of Securities set forth in Section 2.2 and
the Company's obligations to the Trustee pursuant to Section 6.7), and
the Trustee, at the expense of the Company, shall execute proper
instruments in form and substance satisfactory to the Trustee
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(i) all Securities theretofore authenticated
and delivered (other than (A) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 3.6
and (B) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore
delivered to the Trustee or its agent for cancellation (other than
Securities referred to in clauses (A) and (B) of clause (1)(i) above)
(a) have become due and payable, or
(b) will have become due and payable at their
Stated Maturity within one year, or
(c) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of
the Company, and the Company, in the case of clause (a), (b) or (c)
above, has deposited or caused to be deposited with the Trustee as trust
funds (immediately available to the Holders in the case of clause (a)) in
trust for the purpose an amount in cash sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal, premium, if any, and
interest (including any interest upon overdue interest and Liquidated
Damages) to the date of such deposit (in the case of Securities which
have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be, including without limitation the payment of all
fees and expenses of the Trustee, its agents and counsel;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company, including without limitation the
payment of all fees and expenses of the Trustee, its agents and counsel ;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee under Section 6.7, the
obligations of the Company to any Authenticating Agent under Section
6.12, the obligation of the Company to pay Liquidated Damages, if money
shall have been deposited with the Trustee pursuant to clause (1)(ii) of
this Section 4.1, the obligations of the Trustee under Section 4.2 and
the last paragraph of Section 10.3 and the obligations of the Company and
the Trustee under Section 3.5 and Article XII shall survive.
SECTION 4.2 Application of Trust Money
Subject to the provisions of the last paragraph of Section 10.3,
all money deposited with the Trustee pursuant to Section 4.1 and in
accordance with the provisions of Article XIII shall be held in trust for
the sole benefit of the Holders and not be subject to the subordination
provisions of Article XIII, and such monies shall be applied by the
Trustee, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent,
to the Persons entitled thereto, of the principal, premium, if any, and
interest for whose payment such money has been deposited with the
Trustee.
All moneys deposited with the Trustee pursuant to Section 4.1 (and
held by it or any Paying Agent) for the payment of Securities
subsequently converted shall be returned to the Company upon Company
Request.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed or assessed against all money deposited with
the Trustee pursuant to Section 4.1 (other than income taxes and
franchise taxes incurred or payable by the Trustee and such other taxes,
fees or charges incurred or payable by the Trustee that are not directly
the result of the deposit of such money with the Trustee).
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and
whether it shall be occasioned by the provisions of Article XIII or be
voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body):
(1) default in the payment of the principal of or premium,
if any, on any Security at its Maturity, whether or not such payment is
prohibited by the subordination provisions of the Securities or of this
Indenture; or
(2) default in the payment of any interest (including any
interest upon overdue interest or Liquidated Damages) upon any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days, whether or not such payment is prohibited by the
subordination provisions of the Securities or of this Indenture; or
(3) failure by the Company to provide an Offer to Purchase
in accordance with Section 14.3 whether or not such Offer to Purchase is
prohibited by the subordination provisions of the Securities or the
Indenture; or
(4) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty a default in the performance or breach of which is specifically
dealt with elsewhere in this Section), and continuance of such default or
breach for a period of 60 days after there has been given, by registered
or certified mail, to the Company 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 (a "Notice of Default")
specifying such default or breach and requiring it to be remedied and
stating that such notice is a Notice of Default hereunder; or
(5) (i) any default by the Company or any Significant
Subsidiary in the payment of the principal, premium, if any, or interest
has occurred with respect to amounts in excess of $10.0 million under any
agreement, indenture or instrument evidencing Indebtedness when the same
shall become due and payable in full and such default shall have
continued after any applicable grace period and shall not have been cured
or waived and, if not already matured at its final maturity in accordance
with its terms, the holder such Indebtedness shall have the right to
accelerate such Indebtedness, or (ii) any event of default as defined in
any agreement, indenture or instrument of the Company or any Significant
Subsidiary evidencing Indebtedness in excess of $10.0 million shall have
occurred and the Indebtedness thereunder, if not already matured at its
final maturity in accordance with its terms, shall have been accelerated;
or
(6) the entry by a court having jurisdiction in the
premises of (A) a decree or order for relief in respect of the Company or
any Significant Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
Significant Subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any Significant Subsidiary
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or any Significant Subsidiary or of any
substantial part of the property of either, 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 60 consecutive days; or
(7) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under any applicable Federal
or State bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by either to the entry of a decree or order for
relief in respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
either, or the filing by either of a petition or answer or consent
seeking reorganization or similar relief under any applicable Federal or
State law, or the consent by either 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 any Significant Subsidiary or of any substantial part of
the property of either, or the making by either of an assignment for the
benefit of creditors, or the admission by either in writing of its
inability to pay its debts generally as they become due, or the taking of
corporate action by the Company or any Significant Subsidiary in
furtherance of any such action.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment
If an Event of Default (other than an Event of Default specified in
Section 5.1(6) or 5.1(7) with respect to the Company) occurs and is
continuing, then in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities may,
subject to the provisions of Article XIII, declare the principal of all
the Securities to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by the Holders), and upon any
such declaration such principal and all accrued interest thereon shall
become immediately due and payable. If an Event of Default specified in
Section 5.1(6) or 5.1(7) with respect to the Company occurs, the
principal of, and accrued interest on, all the Securities shall, subject
to the provisions of Article XIII, ipso facto become immediately due and
payable without any declaration or other Act of the Holders or any act on
the part of the Trustee.
At any time after such declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article V provided, the
Holders of a majority in principal amount of the Outstanding Securities,
by written notice to the Company and the Trustee, may, on behalf of all
Holders, rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(i) all overdue interest on all Securities,
(ii) the principal of and premium, if any, on
any Securities which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate borne by the
Securities,
(iii) to the extent permitted by applicable law,
interest upon overdue interest at a rate of 7.0% per annum, and
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
(2) all Events of Default, other than the nonpayment of the
principal of and any premium and interest on, Securities which have
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13; and
(3) such rescission and annulment would not conflict with
any judgment or decree issued in appropriate judicial proceedings
regarding the payment by the Trustee to the Holders of the amounts
referred to in 5.2(1).
No rescission or annulment referred to above shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee
The Company covenants that if:
(1) default is made in the payment of any interest
(including any interest upon overdue interest or Liquidated Damages) on
any Security when it becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee but subject to the
provisions of Article XIII pay to it, for the benefit of the Holders of
such Securities the whole amount then due and payable on such Securities
for principal and interest (including any Liquidated Damages) and
interest on any overdue principal and premium, if any, and, to the extent
permitted by applicable law, any interest upon overdue interest
(including any Liquidated Damages), at a rate of 7.0% per annum, and in
addition thereto, such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust,
may institute a judicial proceeding for the collection of the sums so due
and unpaid, may prosecute such proceeding to judgment or final decree and
may enforce the same against the Company or any other obligor upon the
Securities and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any
other obligor upon the Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in
its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of
such other obligor or the creditors of either, the Trustee (irrespective
of whether the principal of, and any interest on, the Securities shall
then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of overdue principal or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of
principal, premium, if any, and interest owing and unpaid in respect of
the Securities and take such other actions, including participating as a
member, voting or otherwise, of any official committee of creditors
appointed in such matter, and to file such other papers or documents, in
each of the foregoing cases, as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders of Securities allowed in such
judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claim 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 of Securities to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the Holders of Securities to pay to the Trustee
any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any
other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of
a Security any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of any Holder
of a Security in any such proceeding; provided, however, that the Trustee
may, on behalf of such Holders, vote for the election of a trustee in
bankruptcy or similar official.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which judgment has been
recovered.
SECTION 5.6 Application of Money Collected
Subject to Article XIII, any money collected by the Trustee
pursuant to this Article V shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal, premium, if any, or interest, upon
presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for
principal of, premium, if any, or interest (including Liquidated Damages,
if any) on, the Securities 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 for principal, premium, if any, and interest (including
Liquidated Damages, if any), respectively;
THIRD: To such other Person or Persons, if any, to the extent
entitled thereto; and
FOURTH: Any remaining amounts shall be repaid to the Company.
SECTION 5.7 Limitation on Suits
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy
hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee, and
if requested, shall have provided, reasonable indemnity against the
costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity (or if requested, receipt of
indemnity) has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60 day period by the Holders of a
majority in principal amount of the Outstanding Securities, it being
understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or seek to obtain priority or
preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal
and ratable benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert
Notwithstanding any other provision in this Indenture, but subject
to the provisions of Article XIII, the Holder of any Security shall have
the right, which is absolute and unconditional, to receive payment of the
principal of, premium, if any, and (subject to Section 3.7) interest
(including Liquidated Damages, if any) on such Security on the respective
Stated Maturities expressed in such Security (or, in the case of
redemption or repurchase, on the Redemption Date or Repurchase Date, as
the case may be), and to convert such Security in accordance with Article
XII, and to institute suit for the enforcement of any such payment and
right to convert, and such rights shall not be impaired without the
consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders of Securities shall be restored severally and
respectively to their former positions hereunder and thereafter all
rights and remedies of the Trustee and such Holders shall continue as
though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.6, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities is intended to be
exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or any acquiescence therein. Every right and
remedy given by this Article V or by law to the Trustee or to the Holders
of Securities may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or (subject to the limitations contained
in this Indenture) by the Holders of Securities as the case may be.
SECTION 5.12 Control by Holders of Securities
Subject to Section 6.3, 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
(1) such direction shall not be in conflict with any rule
of law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be unjustly prejudicial to the
Holders of Securities not consenting.
SECTION 5.13 Waiver of Past Defaults
The Holders, either (i) through the written consent of not less
than a majority in principal amount of the Outstanding Securities or (ii)
by the adoption of a resolution, at a meeting of Holders of the
Outstanding Securities at which a quorum is present, by the Holders of at
least 66-2/3% in principal amount of the Outstanding Securities
represented at such meeting, may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except
a default (A) in the payment of the principal of, premium, if any, or
interest (including Liquidated Damages) on any Security, or (B) in
respect of a covenant or provision hereof which under Article VIII cannot
be modified or amended without the consent of the Holder of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture; but no such waiver shall extend to
any subsequent or other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement
of any right or remedy under this Indenture, or any suit against the
Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the
costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of
this Section 5.14 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 of any Security for the enforcement of the payment of the
principal of, premium, if any, or interest on any Security on or after
the respective Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption or repurchase, on or after the Redemption
Date or Repurchase Date, as the case may be) or for the enforcement of
the right to convert any Security in accordance with Article XII.
SECTION 5.15 Waiver of Stay, Usury 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, usury or
extension law wherever enacted, now or at any time hereafter in force,
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 by reason of such law 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.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities
(1) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, but in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture, but not to verify the contents thereof (or to confirm or
investigate the accuracy of mathematical calculations or other facts
stated therein).
(2) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill
in their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(3) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(i) this paragraph (3) shall not be construed
to limit the effect of paragraph (1) of this Section;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(iii) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture; and
(iv) no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur
any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it.
(4) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 6.2 Notice of Defaults
Within 90 days after the occurrence of any default hereunder as to
which the Trustee has received written notice, the Trustee shall give to
all Holders of Securities, in the manner provided in Section 1.6, notice
of such default, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment
of the principal of, premium, if any, or interest on any Security the
Trustee shall be protected in withholding such notice if and so long as
the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interest of the Holders;
and provided, further, that in the case of any default of the character
specified in Section 5.1(4), no such notice to Holders of Securities
shall be given until at least 60 days after the occurrence thereof or, if
applicable, the cure period specified therein. For the purpose of this
Section, the term "default" means any event which is, or after notice
or lapse of time or both would become, an Event of Default.
SECTION 6.3 Certain Rights of Trustee
Subject to the provisions of Section 6.1:
(1) the Trustee may conclusively rely, and shall be
protected in acting or refraining from acting, upon any resolution,
Officers' Certificate, other certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture,
note, coupon, other evidence of indebtedness or other paper or document
(collectively, the "Documents") believed by it to be genuine and to
have been signed or presented by the proper party or parties, and the
Trustee need not investigate any fact or matter stated in such Documents;
(2) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors shall be sufficiently
evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be the one specifically prescribed) may, in the
absence of bad faith on its part, request and rely upon an Officers'
Certificate or Opinion of Counsel;
(4) the Trustee may consult with counsel of its selection
and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities pursuant to this
Indenture, unless such Holders shall have offered, and, if requested by
the Trustee, delivered, to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction;
(6) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any Document, but the
Trustee 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;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) the Trustee shall not be liable for any action it
takes, suffers to be taken or omits in good faith; and
(9) 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 or
this Indenture.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for
their correctness. The Trustee makes no representations as to the
validity or sufficiency of this Indenture, of the Securities or of the
Common Stock issuable upon the conversion of the Securities. The Trustee
shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 6.5 May Hold Securities, Act as Trustee under Other Indentures
The Trustee, any Authenticating Agent, any Paying Agent, any
Conversion Agent or any other agent of the Company or the Trustee, in
its individual or any other capacity, may become the owner or pledgee of
Securities and may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Conversion Agent or such other agent.
The Trustee is hereby authorized to act as trustee under that
certain indenture between Exodus Communications, Inc. and the Trustee,
dated as of July 1, 1998 (the "1998 Indenture") notwithstanding any
provisions of this Indenture or the 1998 Indenture affecting the relative
rights of holders of securities issued under such indentures to payment
thereon and to security given to secure such payment. The Trustee may
become and act as trustee under other indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding in the same manner as if it
were not Trustee hereunder. The Trustee is authorized to resign from any
of its appointments as Trustee hereunder, as trustee under the 1998
Indenture, or as trustee under any other indenture in the event that the
Trustee determines in good faith that its performance hereunder or
thereunder subjects the Trustee to a conflict of interest.
SECTION 6.6 Money Held in Trust
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on any money received by it hereunder
except as otherwise agreed in writing with the Company.
SECTION 6.7 Compensation and Reimbursement
The Company agrees:
(1) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree
in writing for its acceptance of this Indenture and for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee (including
costs and expenses of enforcing this Indenture and defending itself
against any claim (whether asserted by the Company, any Holder of
Securities or any other Person) or liability in connection with the
exercise of any of its powers or duties hereunder) in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee (and its directors, officers,
employees and agents) for, and to hold it harmless against, any loss,
damage, claim, liability or expense incurred without negligence or bad
faith on its part, arising out of or in connection with the acceptance or
administration of this trust, including without limitation the reasonable
costs, expenses and reasonable attorneys' fees and expenses of defending
itself against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(6) or Section 5.1(7),
the expenses (including the reasonable fees and expenses of its agents
and counsel) and the compensation for the services are intended to
constitute expenses of the administration under any applicable Federal or
state bankruptcy, insolvency or other similar law.
If the Company shall default in the payment of any amount owing to
the Trustee pursuant to this Section 6.7, the Trustee shall benetitled to
payment of such amount out of all property and funds held by it hereunder
prior to payment to the Holders of any amount owing to them under the
Notes.
The provisions of this Section shall survive the termination of
this Indenture or the earlier resignation or removal of the Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as
such and has (or, in the case of a corporation included in a bank holding
company system, the related bank holding company has) a combined capital
and surplus of at least U.S. $50,000,000, subject to supervision or
examination by federal or state authority, and in good standing. The
Trustee or an Affiliate of the Trustee shall maintain an established
place of business in the Borough of Manhattan, The City of New York. If
such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in
this Article and a successor shall be appointed pursuant to Section 6.9.
SECTION 6.9 Resignation and Removal; Appointment of Successor
(1) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 6.10.
(2) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.10 shall not have been delivered
to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(3) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and the Company. If the instrument of acceptance
by a successor Trustee required by Section 6.10 shall not have been
delivered to the Trustee within 30 days after the giving of such notice
of removal, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(4) If at any time:
(i) the Trustee shall cease to be eligible
under Section 6.8 and shall fail to resign after written request therefor
by the Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(ii) the Trustee shall become incapable of
acting or shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case (i) the Company by a Board Resolution may remove
the Trustee, or (ii) subject to Section 5.14, any Holder of a Security
who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
(5) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee
for any cause, the Company, by a Board Resolution, shall promptly appoint
a successor Trustee and shall comply with the applicable requirements of
this Section and Section 6.10. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy,
a successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities delivered to
the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 6.10, become the successor
Trustee and supersede the successor Trustee appointed by the Company. If
no successor Trustee shall have been so appointed by the Company or the
Holders of Securities and accepted appointment in the manner required by
this Section and Section 6.10, any Holder of a Security who has been a
bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(6) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee
to all Holders of Securities in the manner provided in Section 1.6. Each
notice shall include the name of the successor Trustee and the address of
its Corporate Trust Office.
SECTION 6.10 Acceptance of Appointment by Successor
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such
retiring Trustee shall, upon payment of its charges, execute and deliver
an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts. Notwithstanding the replacement of the
Trustee pursuant to this Section 6.10, the Company's obligations under
Section 6.7 hereof shall continue for the benefit of the retiring
Trustee.
No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be eligible under
this Article.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from
any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee (including the trust created by
this Indenture), shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise eligible under this Article,
without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities.
SECTION 6.12 Authenticating Agents
The Trustee may, with the consent of the Company, appoint an
Authenticating Agent or Agents acceptable to the Company with respect to
the Securities which shall be authorized to act on behalf of the Trustee
to authenticate Securities issued upon exchange or substitution pursuant
to this Indenture.
Securities authenticated by an Authenticating Agent shall be
entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder,
and every reference in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of
authentication shall be deemed to include authentication and delivery on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be subject to acceptance by the
Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent and subject to supervision or examination by
government or other fiscal authority. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of
this Section 6.12, such Authenticating Agent shall resign immediately in
the manner and with the effect specified in this Section 6.12.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to
the corporate agency or corporate trust business of an Authenticating
Agent, shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section 6.12, without
the execution or filing of any paper or any further act on the part of
the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in
case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.12, the Trustee may
appoint a successor Authenticating Agent which shall be subject to
acceptance by the Company. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect
as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.12.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section 6.12.
If an Authenticating Agent is appointed with respect to the
Securities pursuant to this Section 6.12, the Securities may have
endorsed thereon, in addition to or in lieu of the Trustee's
certification of authentication, an alternative certificate of
authentication in the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:_______________________________________
As Authenticating Agent
By:_______________________________________
Authorized Signatory
SECTION 6.13 Disqualification; Conflicting Interests
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the Trust Indenture Act
and this Indenture.
SECTION 6.14 Preferential Collection of Claims Against Company
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
subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 Company May Consolidate, Etc., Only on Certain Terms
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease all its properties and assets
substantially as an entirety to any Person, and the Company shall not
permit any Person to consolidate with or merge into the Company or
convey, transfer, sell or lease such Person's properties and assets
substantially as an entirety to the Company unless:
(1) the Person formed by such consolidation or into or with
which the Company is merged or the Person to which the properties and
assets of the Company are so conveyed, transferred, sold or leased shall
be a corporation, limited liability company, partnership or trust
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and, if other than
the Company, shall expressly assume, by an indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the
Trustee, the due and punctual payment of the principal of, premium, if
any, and interest (including Liquidated Damages, if any) on all of the
Securities as applicable, and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance with
Article XII;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event that after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with, together with any documents required under
Section 8.3.
SECTION 7.2 Successor Substituted
Upon any consolidation of the Company with, or merger of the
Company into any other Person or any conveyance, transfer or lease of all
or substantially all the properties and assets of the Company in
accordance with Section 7.1, the successor Person formed by such
consolidation or into or with which the Company is merged or to which
such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Holders of
Securities
Without the consent of any Holders of Securities 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
for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities as permitted by
Article VII of this Indenture; or
(2) to add to the covenants of the Company for the benefit
of the Holders of Securities or to surrender any right or power herein
conferred upon the Company; or
(3) to secure the Securities; or
(4) to make provision with respect to the conversion rights
of Holders of Securities pursuant to Section 12.11 or to make provision
with respect to the repurchase rights of Holders of Securities pursuant
to Section 14.5; or
(5) to make any changes or modifications to this Indenture
necessary in connection with the registration of any Registrable
Securities under the Securities Act as contemplated by Section 10.11,
provided such action pursuant to this clause (5) shall not adversely
affect the interests of the Holders of Securities; or
(6) to comply with the requirements of the Trust Indenture
Act or the rules and regulations of the Commission thereunder in order to
effect or maintain the qualification of this Indenture under the Trust
Indenture Act, as contemplated by this Indenture or otherwise; or
(7) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee; or
(8) subject to Section 13.12, to make any change in Article
XIII that would limit or terminate the benefits available to any holder
of Senior Indebtedness under such Article; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or which is otherwise defective, or to make any other provisions
with respect to matters or questions arising under this Indenture as the
Company and the Trustee may deem necessary or desirable, provided such
action pursuant to this clause (9) shall not adversely affect the
interests of the Holders of Securities in any material respect.
Upon Company Request, accompanied by a Board Resolution authorizing
the execution of any such supplemental indenture, and subject to and upon
receipt by the Trustee of the documents described in Section 8.3 hereof,
the Trustee shall join with the Company in the execution of any
supplemental indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations
which may be therein contained.
SECTION 8.2 Supplemental Indentures with Consent of Holders of
Securities
With either (i) the written consent of the Holders of not less than
a majority in principal amount of the Outstanding Securities, by the Act
of said Holders delivered to the Company and the Trustee, or (ii) by the
adoption of a resolution, at a meeting of Holders of the Outstanding
Securities at which a quorum is present, by the Holders of at least
66-2/3% in principal amount of the Outstanding Securities represented at
such meeting, 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 of Securities under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent or affirmative vote of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
of, or the premium, if any, or the rate of interest payable thereon, or
reduce the amount payable upon a redemption or mandatory repurchase, or
change the place or currency of payment of the principal of, premium, if
any, or interest on any Security (including any payment of Liquidated
Damages or Redemption Price or Repurchase Price in respect of such
Security) or impair the right to institute suit for the enforcement of
any payment in respect of any Security on or after the Stated Maturity
thereof (or, in the case of redemption or any repurchase, on or after the
Redemption Date or Repurchase Date, as the case may be) or, except as
permitted by Section 12.11, adversely affect the right of Holders to
convert any Security as provided in Article XII, or modify the provisions
of this Indenture with respect to the subordination of the Securities in
a manner adverse to the Holders; or
(2) reduce the requirements of Section 9.4 for quorum or
voting, or reduce the percentage in principal amount of the Outstanding
Securities the consent of whose Holders is required for any such
supplemental indenture or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture; or
(3) modify the obligation of the Company to maintain an
office or agency in the Borough of Manhattan, The City of New York,
pursuant to Section 10.2; or
(4) modify any of the provisions of this Section or Section
5.13 or 10.13, except to increase any percentage contained herein or
therein 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; or
(5) adversely affect the right of Holders to require the
Company to repurchase any Note other than as provided in Article XIV; or
(6) modify any of the provisions of Section 10.9.
It shall not be necessary for any Act of Holders of Securities
under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
SECTION 8.3 Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be
entitled to receive, and (subject to Sections 6.1 and 6.3) shall be fully
protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by
this Indenture, and that such supplemental indenture has been duly
authorized, executed and delivered by the Company and constitutes a valid
and legally binding obligation of the Company enforceable against the
Company in accordance with its terms. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 8.4 Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder appertaining thereto shall be bound
thereby.
SECTION 8.5 Reference in Securities to Supplemental Indentures
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a 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 Company and the Trustee, 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 8.6 Notice of Supplemental Indentures
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 8.1, the
Company shall give notice to all Holders of Securities of such fact,
setting forth in general terms the substance of such supplemental
indenture, in the manner provided in Section 1.6. Any failure of the
Company to give such notice, or any defect therein, shall not in any way
impair or affect the validity of any such supplemental indenture.
ARTICLE IX
MEETINGS OF HOLDERS OF SECURITIES
SECTION 9.1 Purposes for Which Meetings May Be Called
A meeting of Holders of Securities may be called at any time and
from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or
other action provided by this Indenture to be made, given or taken by
Holders of Securities.
SECTION 9.2 Call, Notice and Place of Meetings
(1) The Trustee may at any time call a meeting of Holders
of Securities for any purpose specified in Section 9.1, to be held at
such time and at such place in the Borough of Manhattan, The City of New
York, as the Trustee shall determine. Notice of every meeting of Holders
of Securities, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall
be given, in the manner provided in Section 1.6, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities shall have requested the Trustee to call a meeting
of the Holders of Securities for any purpose specified in Section 9.1, by
written request setting forth in reasonable detail the action proposed to
be taken at the meeting, and the Trustee shall not have mailed the notice
of such meeting within 21 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities in the amount specified, as
the case may be, may determine the time and the place in the Borough of
Manhattan, The City of New York, for such meeting and may call such
meeting for such purposes by giving notice thereof as provided in
paragraph (1) of this Section.
SECTION 9.3 Persons Entitled to Vote at Meetings
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (i) a Holder of one or more Outstanding Securities on the
date of such meeting, or (ii) a Person appointed by an instrument in
writing as proxy for a Holder or Holders of one or more Outstanding
Securities by such Holder or Holders. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of
the Company and its counsel.
SECTION 9.4 Quorum; Action
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities, be
dissolved. In any other case, the meeting may be adjourned for a period
of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be further
adjourned for a period not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned
meeting (subject to repeated applications of this sentence). Notice of
the reconvening of any adjourned meeting shall be given as provided in
Section 9.2(1), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall
state expressly the percentage of the principal amount of the Outstanding
Securities which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting
adjourned for a lack of a quorum, the Persons entitled to vote 25% in
principal amount of the Outstanding Securities at the time shall
constitute a quorum for the taking of any action set forth in the notice
of the original meeting.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 8.2 and except to the extent Section
10.13 requires a different vote) shall be effectively passed and decided
if passed or decided by the lesser of (i) the Holders of not less than a
majority in principal amount of Outstanding Securities and (ii) the
Persons entitled to vote not less than 66-2/3% in principal amount of
Outstanding Securities represented and entitled to vote at such meeting.
Any resolution passed or decisions taken at any meeting of Holders
of Securities duly held in accordance with this Section shall be binding
on all the Holders of Securities whether or not present or represented at
the meeting. The Trustee shall, in the name and at the expense of the
Company, notify all the Holders of Securities of any such resolutions or
decisions pursuant to Section 1.6.
SECTION 9.5 Determination of Voting Rights; Conduct and Adjournment
of Meetings
(1) Notwithstanding any other provisions of this Indenture,
the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Holders of Securities in regard to proof of the
holding of Securities and of the appointment of proxies and in regard to
the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to
vote, and such other matters concerning the conduct of the meeting as it
shall deem appropriate. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner
specified in Section 1.4 and the appointment of any proxy shall be proved
in the manner specified in Section 1.4 or by having the signature of the
Person executing the proxy guaranteed by any bank, broker or other
eligible institution participating in a recognized medallion signature
guarantee program.
(2) The Trustee shall, by an instrument in writing, appoint
a temporary chairman (which may be the Trustee) of the meeting, unless
the meeting shall have been called by the Company or by Holders of
Securities as provided in Section 9.2(1), in which case the Company or
the Holders of Securities calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a
permanent secretary of the meeting shall be elected by vote of the
Persons entitled to vote a majority in principal amount of the
Outstanding Securities represented at the meeting.
(3) At any meeting, each Holder of a Security or proxy
shall be entitled to one vote for each U.S. $1,000 principal amount of
Securities held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to
be not Outstanding. The chairman of the meeting shall have no right to
vote, except as a Holder of a Security or proxy.
(4) Any meeting of Holders of Securities duly called
pursuant to Section 9.2 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal
amount of the Outstanding Securities represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 9.6 Counting Votes and Recording Action of Meetings
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by
proxy and the principal amounts at Stated Maturity and serial numbers of
the Outstanding Securities held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record,
at least in duplicate, of the proceedings of each meeting of Holders of
Securities shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors
of votes on any vote by ballot taken thereat and affidavits by one or
more Persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided
in Section 9.2 and, if applicable, Section 9.4. Each copy shall be signed
and verified by the affidavits of the permanent chairman and secretary of
the meeting and one such copy shall be delivered to the Company and
another to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest
The Company covenants and agrees that it will duly and punctually
pay the principal of and premium, if any, and interest (including
Liquidated Damages, if any) on the Securities in accordance with the
terms of the Securities and this Indenture. The Company will deposit or
cause to be deposited with the Trustee, no later than the opening of
business on the date of the Stated Maturity of any Security or no later
than the opening of business on the due date for any installment of
interest, all payments so due, which payments shall be in immediately
available funds on the date of such Stated Maturity or due date, as the
case may be.
SECTION 10.2 Maintenance of Offices or Agencies
The Company will maintain in the Borough of Manhattan, The City of
New York, an office or agency where the Securities may be surrendered for
registration of transfer or exchange or for presentation for payment or
for conversion, redemption or repurchase and where notices and demands to
or upon the Company in respect of the Securities and this Indenture may
be served. The Company will give prompt written notice to the Trustee of
the location, and any change in the location, of such office or agency
not designated or appointed by the Trustee. If at any time the Company
shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate
Trust Office or the office or agency of the Trustee in the Borough of
Manhattan, The City of New York, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may at any time and from time to time vary or terminate
the appointment of any such agent or appoint any additional agents for
any or all of such purposes; provided, however, that until all of the
Securities have been delivered to the Trustee for cancellation, or moneys
sufficient to pay the principal of, premium, if any, and interest on the
Securities have been made available for payment and either paid or
returned to the Company pursuant to the provisions of Section 10.3, the
Company will maintain in the Borough of Manhattan, The City of New York,
an office or agency where Securities may be presented or surrendered for
payment and conversion, which shall initially be the Trustee, where
Securities may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee, and notice to the Holders in accordance
with Section 1.6, of the appointment or termination of any such agents
and of the location and any change in the location of any such office or
agency.
The Company hereby initially designates the Trustee as Paying
Agent, Security Registrar and Conversion Agent, and each of the Corporate
Trust Office of the Trustee and the office or agency of the Trustee in
the Borough of Manhattan, The City of New York, located at 00 Xxxxx
Xxxxxx, Xxxx 000 Xxxxx, Xxxxxxxxx Trust Securities Window, Xxx Xxxx, Xxx
Xxxx 00000, attention: Exodus Communications, Inc. 5% Convertible
Subordinated Notes due March 15, 2006 one such office or agency of the
Company for each of the aforesaid purposes.
SECTION 10.3 Money for Security Payments to Be Held in Trust
If the Company shall act as its own Paying Agent, it will, on or
before each due date of the principal of, premium, if any, or interest on
any of the Securities, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal, premium,
if any, or interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and the Company will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
no later than the opening of business on each due date of the principal
of, premium, if any, or interest on any Securities, deposit with the
Trustee a sum in funds immediately payable on the payment date sufficient
to pay the principal, premium, if any, or interest so becoming due, such
sum to be held for the benefit of the Persons entitled to such principal,
premium, if any, or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of any failure so
to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the
principal of, premium, if any, or interest on Securities for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities) in the making of any payment
of principal, premium, if any, or interest; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to
be held by the Trustee upon the same trusts as those upon which such sums
were held by the Company or such Paying Agent; and, upon such payment by
any Paying Agent to the Trustee, such Paying Agent shall be released from
all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of,
premium, if any, or interest on any Security and remaining unclaimed for
two years after such principal, premium, if any, or interest has become
due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability
of the Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall thereupon cease.
SECTION 10.4 Existence
Subject to Article VII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such
right or franchise if the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 10.5 Maintenance of Properties
The Company will cause all properties used or useful in the conduct
of its business or the business of any Significant Subsidiary to be
maintained and kept in good condition, repair and working order and
supplied with all necessary equipment and will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that
the business carried on in connection therewith may be properly and
advantageously conducted at all times; provided, however, that nothing in
this Section shall prevent the Company from discontinuing the operation
or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or
the business of any Significant Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 10.6 Payment of Taxes and Other Claims
The Company will pay or discharge, or cause to be paid or
discharged, before the same may become delinquent, (i) all taxes,
assessments and governmental charges levied or imposed upon the Company
or any Significant Subsidiary or upon the income, profits or property of
the Company or any Significant Subsidiary, (ii) all claims for labor,
materials and supplies which, if unpaid, might by law become a lien or
charge upon the property of the Company or any Significant Subsidiary,
and (iii) all stamps and other duties, if any, which may be imposed by
the United States or any political subdivision thereof or therein in
connection with the issuance, transfer, exchange or conversion of any
Securities or with respect to this Indenture; provided, however, that, in
the case of clauses (i) and (ii), the Company shall not be required to
pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim (A) if the failure to do so will not, in the
aggregate, have a material adverse impact on the Company, or (B) if the
amount, applicability or validity is being contested in good faith by
appropriate proceedings.
SECTION 10.7 Registration and Listing
The Company (i) will effect all registrations with, and obtain all
approvals by, all governmental authorities that may be necessary under
any United States Federal or state law (including the Securities Act, the
Exchange Act and state securities and Blue Sky laws) before the shares of
Common Stock issuable upon conversion of Securities are issued and
delivered, and qualified or listed as contemplated by clause (ii) (it
being understood that the Company shall not be required to register the
Securities under the Securities Act, except pursuant to the Registration
Rights Agreement referred to in Section 10.11); and (ii) will qualify the
shares of Common Stock required to be issued and delivered upon
conversion of Securities, prior to such issuance or delivery, for
quotation on the Nasdaq National Market or, if the Common Stock is not
then quoted on the Nasdaq National Market, list the Common Stock on each
national securities exchange or quotation system on which outstanding
Common Stock is listed or quoted at the time of such delivery.
Nothing in this Section will limit the application of Section 10.11.
SECTION 10.8 Statement by Officers as to Default
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof, an
Officers' Certificate, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may
have knowledge.
The Company will deliver to the Trustee, forthwith upon becoming
aware of any default under this Indenture or any Event of Default, an
Officers' Certificate specifying with particularity such default or Event
of Default and further stating what action the Company has taken, is
taking or proposes to take with respect thereto. For the purpose of this
Section, the term "default" includes any event which is, or after
notice or lapse of time or both would become, an Event of Default.
Any notice required to be given under this Section 10.8 shall be
delivered to the Trustee at its Corporate Trust Office.
SECTION 10.9 Delivery of Certain Information
At any time when the Company is not subject to Section 13 or 15(d)
of the Exchange Act, upon the request of a Holder of a Restricted
Security or the holder of shares of Common Stock issued upon conversion
thereof, the Company will promptly furnish or cause to be furnished Rule
144A Information (as defined below) to such Holder of Restricted
Securities or such holder of shares of Common Stock issued upon
conversion of Restricted Securities, or to a prospective purchaser of any
such security designated by any such Holder or holder, as the case may
be, to the extent required to permit compliance by such Holder or holder
with Rule 144A under the Securities Act (or any successor provision
thereto) in connection with the resale of any such security; provided,
however, that the Company shall not be required to furnish such
information in connection with any request made on or after the date
which is two years from the later of (i) the date such a security (or any
such predecessor security) was last acquired from the Company or (ii) the
date such a security (or any such predecessor security) was last acquired
from an "affiliate" of the Company within the meaning of Rule 144 under
the Securities Act (or any successor provision thereto). "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).
SECTION 10.10 Resale of Certain Securities
During the period beginning on the last date of original issuance
of the Securities and ending on the date that is two years from such date
(or such shortened period under Rule 144(k) under the Securities Act or
any successor rule), the Company will not, and will use all reasonable
efforts to ensure that its "affiliates" (as defined under Rule 144
under the Securities Act or any successor provision thereto) do not,
resell (i) any Securities which constitute "restricted securities"
under Rule 144 or (ii) any securities into which the Securities have been
converted under this Indenture which constitute "restricted securities"
under Rule 144, that in either case have been reacquired by any of them.
The Trustee shall have no responsibility in respect of the Company's
performance of its agreement in the preceding sentence.
SECTION 10.11 Registration Rights
The Company agrees that the Holders from time to time of
Registrable Securities (as defined below) are entitled to the benefits of
a Registration Rights Agreement. Pursuant to the Registration Rights
Agreement, the Company has agreed for the benefit of the holders from
time to time of the Registrable Securities that it will, at its expense,
(i) within 90 days after the Issue Date (as defined below) of the
Securities, file a shelf registration statement (the "Shelf Registration
Statement") with the Commission with respect to resales of the
Registrable Securities, (ii) use all reasonable efforts to cause such
Shelf Registration Statement to be declared effective by the Commission
within 180 days after the Issue Date of the Securities, provided, however
that the Company may, upon written notice to all the Holders, postpone
having the Shelf Registration Statement declared effective if the Company
possesses material non-public information, the disclosure of which would
have a material adverse effect on the Company and its subsidiaries taken
as a whole and (iii) use all reasonable efforts to maintain such Shelf
Registration Statement effective under the Securities Act until the
second annual anniversary of the date it is declared effective or such
earlier date as is provided in the Registration Rights Agreement (the
"Effectiveness Period"). The Company will be permitted to suspend the
use of the prospectus which is a part of the Shelf Registration Statement
during certain periods of time as provided in the Registration Rights
Agreement.
If (i) on or prior to 90 days following the Issue Date of the
Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) subject to the Company's right to postpone
effectiveness as set forth in the immediately preceding paragraph, on or
prior to the 180th day following the Issue Date of the Securities, such
Shelf Registration Statement is not declared effective (each, a
"Registration Default"), additional interest ("Liquidated Damages")
will accrue on the Restricted Securities from and including the day
following such Registration Default to but excluding the day on which
such Registration Default has been cured. Liquidated Damages will be paid
semi-annually in arrears, with the first semi-annual payment due on the
first Interest Payment Date, as applicable, in respect of the Restricted
Securities following the date on which such Liquidated Damages begin to
accrue, and will accrue at a rate per annum equal to an additional
one-quarter of one percent (0.25%) of the principal amount of the
Restricted Securities to and including the 90th day following such
Registration Default and at a rate per annum equal to one-half of one
percent (0.50%) thereof from and after the 91st day following such
Registration Default. Pursuant to the Registration Rights Agreement, in
the event that the Shelf Registration Statement ceases to be effective
(or the Holders of Registrable Securities are otherwise prevented or
restricted by the Company from effecting sales pursuant thereto) (an
"Effective Failure") during the Effectiveness Period for more than 45
days, whether or not consecutive, during any 90 day period, or for more
than 90 days, whether or not consecutive, during any 12-month period,
then the interest rate borne by the Restricted Securities shall increase
by an additional one-half of one percent (0.50%) per annum from the 46th
day of the applicable 90 day period or the 91st day of the applicable
12-month period, as the case may be, until such time as the Effective
Failure is cured.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, premium, if any, or interest on, or in
respect of, any Security, such mention shall be deemed to include mention
of the payment of Liquidated Damages provided for in this Section to the
extent that, in such context, Liquidated Damages are, were or would be
payable in respect thereof pursuant to the provisions of this Section and
express mention of the payment of Liquidated Damages (if applicable) in
any provisions hereof shall not be construed as excluding Liquidated
Damages in those provisions hereof where such express mention is not
made.
For the purposes of the Registration Rights Agreement,
"Registrable Securities" means all or any portion of the Restricted
Securities issued from time to time under this Indenture and the shares
of Common Stock issuable upon conversion or repurchase of such Restricted
Securities, except any such Restricted Security or share of Common Stock
issuable upon conversion or repurchase thereof which (i) has been
effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k)
of such Rule 144 (or any successor provision thereto) or (iii) otherwise
has been transferred and a new Security or share of Common Stock not
subject to transfer restrictions under the Securities Act has been
delivered by or on behalf of the Company in accordance with Section 3.5
of this Indenture.
If a Security, or the shares of Common Stock issuable upon
conversion of a Security, is a Registrable Security, and the Holder
thereof elects to sell such Registrable Security pursuant to the Shelf
Registration Statement then, by its acceptance thereof, the Holder of
such Registrable Security will have agreed to be bound by the terms of
the Registration Rights Agreement relating to the Registrable Securities
which are the subject of such election.
For the purposes of the Registration Rights Agreement, the term
"Holder" includes any Person that has a beneficial interest in any
Restricted Global Security or any beneficial interest in a global
security representing shares of Common Stock issuable upon conversion of
a Security.
SECTION 10.12 Use of Proceeds
The Company shall use the net proceeds of the sale of the
Securities (other than $48.475 million) to finance the purchase or other
acquisition of any property, inventory, asset or business directly or
indirectly, by the Company or any Restricted Subsidiary used in, or to be
used in, the System and Network Management Business, or for such other
purposes as may be permitted by the 1998 Indenture (as defined in Section
6.5 hereof). "Restricted Subsidiary" shall mean any subsidiary of the
Company that has not been designated an "Unrestricted Subsidiary"
pursuant to the 1998 Indenture. "System and Network Management
Business" means: (i) server and other hardware hosting; (ii)
connectivity, data networking, telecommunications or content for computer
or data networks or systems; (iii) management of computer or data
networks or systems; (iv) technology services, equipment sales or leasing
or software licensing for computer or data networks or systems (including
Internet Protocol and any successor protocol(s) based networks); and (v)
businesses reasonably related, complementary or incidental thereto.
SECTION 10.13 Waiver of Certain Covenants
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.4 (other than with respect
to the existence of the Company (subject to Article VII)), 10.5 and 10.
6, inclusive (other than a covenant or condition which under Article VIII
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected), if before the time for such compliance
the Holders shall, through the written consent of not less than a
majority in principal amount of the Outstanding Securities, or the
adoption of a resolution at a meeting of Holders of the Outstanding
Securities at which a quorum is present by 66-2/3 % in principal amount
of Outstanding Securities represented and entitled to vote at such
meeting, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee or any Paying or
Conversion Agent in respect of any such covenant or condition shall
remain in full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption
The Securities may be redeemed in accordance with the provisions of
the form of Securities set forth in Section 2.2.
SECTION 11.2 Applicability of Article
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of the Securities or
this Indenture, shall be made in accordance with such provision and this
Article XI.
SECTION 11.3 Election to Redeem; Notice to Trustee
The election of the Company to redeem any Securities shall be
evidenced by a Board Resolution. In case of any redemption at the
election of the Company of any of the Securities, the Company shall, at
least 30 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee
in writing of such Redemption Date.
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected by the Trustee within five
Business Days after it receives the notice described in 11.3, from the
Outstanding Securities not previously called for redemption, by lot or by
such other method as the Trustee may deem fair and appropriate.
If any Security selected for partial redemption is converted in
part before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such
Security shall be deemed (so far as may be) to be the portion selected
for redemption. Securities which have been converted during a selection
of Securities to be redeemed may be treated by the Trustee as Outstanding
for the purpose of such selection. The Trustee shall promptly notify the
Company and each Security Registrar in writing of the securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
SECTION 11.5 Notice of Redemption
Notice of redemption shall be given in the manner provided in
Section 1.6 to the Holders of Securities to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date, and such notice shall
be irrevocable.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, and accrued interest (including
Liquidated Damages, if any), if any, to the Redemption Date,
(3) if less than all Outstanding Securities are to be
redeemed, the aggregate principal amount of Securities to be redeemed and
the aggregate principal amount of Securities which will be outstanding
after such partial redemption,
(4) that on the Redemption Date the Redemption Price, and
accrued interest (including Liquidated Damages, if any), if any, to the
Redemption Date, will become due and payable upon each such Security to
be redeemed, and that interest thereon shall cease to accrue on and after
said date,
(5) the Conversion Rate, the date on which the right to
convert the Securities to be redeemed will terminate and the places where
such Securities may be surrendered for conversion, and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price and accrued interest
(including Liquidated Damages, if any), if any, to the Redemption Date.
In case of a partial redemption, the notice shall specify the
serial and CUSIP numbers (if any) and the portions thereof called for
redemption and that transfers and exchanges may occur on or prior to the
Redemption Date.
Notice of redemption of Securities to be redeemed at the election
of the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name of and at the expense of the Company.
Notice of redemption of Securities to be redeemed at the election of the
Company received by the Trustee shall be given by the Trustee to each
Paying Agent in the name of and at the expense of the Company.
SECTION 11.6 Deposit of Redemption Price
On or prior to the Redemption Date, the Company shall deposit with
the Trustee (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.3) an amount of
money (which shall be in immediately available funds on such Redemption
Date) sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest
(including Liquidated Damages, if any) to the Redemption Date on, all the
Securities which are to be redeemed on that date other than any
Securities called for redemption on that date which have been converted
prior to the date of such deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or so segregated and held in trust for the
redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided
in the last paragraph of Section 3.7) be paid to the Company on Company
Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 11.7 Securities Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable
at the Redemption Price therein specified and from and after such date
(unless the Company shall default in the payment of the Redemption Price,
including accrued interest) such Securities shall cease to bear interest.
Upon surrender of any Security for redemption in accordance with said
notice such Security shall be paid by the Company at the Redemption Price
together with accrued and unpaid interest (including Liquidated Damages,
if any) to the Redemption Date; provided, however, that installments of
interest on Securities whose Stated Maturity is on or prior to the
Redemption Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such on the relevant
Record Date according to their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal amount of, premium, if
any, and, to the extent permitted by applicable law, accrued interest on
such Security shall, until paid, bear interest from the Redemption Date
at a rate of 7.0% per annum and such Security shall remain convertible
until the Redemption Price of such Security (or portion thereof, as the
case may be) shall have been paid or duly provided for.
Any Security which is to be redeemed only in part shall be
surrendered at the Corporate Trust Office or an office or agency of the
Company designated for that purpose pursuant to Section 10.2 (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of
the principal of the Security so surrendered.
SECTION 11.8 Conversion Arrangement on Call for Redemption
In connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities by an agreement
with one or more investment bankers or other purchasers (the
"Purchasers") to purchase such securities by paying to the Trustee in
trust for the Holders, on or before the Redemption Date, an amount not
less than the applicable Redemption Price, together with interest accrued
to the Redemption Date, of such Securities. Notwithstanding anything to
the contrary contained in this Article XI, the obligation of the Company
to pay the Redemption Price, together with interest accrued to the
Redemption Date, shall be deemed to be satisfied and discharged to the
extent such amount is so paid by such Purchasers. If such an agreement is
entered into (a copy of which shall be filed with the Trustee prior to
the close of business on the Business Day immediately prior to the
Redemption Date), any Securities called for redemption that are not duly
surrendered for conversion by the Holders thereof may, at the option of
the Company, be deemed, to the fullest extent permitted by law, and
consistent with any agreement or agreements with such Purchasers, to be
acquired by such Purchasers from such Holders and (notwithstanding
anything to the contrary contained in Article XII) surrendered by such
Purchasers for conversion, all as of immediately prior to the close of
business on the Redemption Date (and the right to convert any such
Securities shall be extended through such time), subject to payment of
the above amount as aforesaid. At the direction of the Company, the
Trustee shall hold and dispose of any such amount paid to it by the
Purchasers to the Holders in the same manner as it would monies deposited
with it by the Company for the redemption of Securities. Without the
Trustee's prior written consent, no arrangement between the Company and
such Purchasers for the purchase and conversion of any Securities shall
increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the
Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection
with any such arrangement for the purchase and conversion of any
Securities between the Company and such Purchasers, including the costs
and expenses, including reasonable legal fees, incurred by the Trustee in
the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
ARTICLE XII
CONVERSION OF SECURITIES
SECTION 12.1 Conversion Privilege and Conversion Rate
Subject to and upon compliance with the provisions of this Article,
at the option of the Holder thereof, any Security may be converted into
fully paid and nonassessable shares (calculated as to each conversion to
the nearest 1/100th of a share) of Common Stock of the Company at the
Conversion Rate, determined as hereinafter provided, in effect at the
time of conversion. Such conversion right shall commence on the date the
Securities are issued and expire at the close of business on the date of
Maturity, subject, in the case of conversion of any Global Security, to
any Applicable Procedures. In case a Security or portion thereof is
called for redemption at the election of the Company or the Holder
thereof exercises his right to require the Company to repurchase the
Security, such conversion right in respect of the Security, or portion
thereof so called, shall expire at the close of business on the Business
Day next preceding such Redemption Date or the Repurchase Date, as the
case may be, unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be (in each case subject as
aforesaid to any Applicable Procedures with respect to any Global
Security).
The rate at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Rate") shall be initially
10.9463 shares of Common Stock for each U.S.$1,000 principal amount of
Securities. The Conversion Rate shall be adjusted in certain instances as
provided in this Article XII.
SECTION 12.2 Exercise of Conversion Privilege
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security, duly endorsed in
blank, at any office or agency of the Company maintained for that purpose
pursuant to Section 10.2, accompanied by a duly signed conversion notice
substantially in the form set forth in Section 2.4 stating that the
Holder elects to convert such Security or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted. Each Security surrendered for conversion (in whole or in part)
during the Record Date Period shall (except in the case of any Security
or portion thereof which has been called for redemption on a Redemption
Date occurring within the period beginning on such Regular Record Date
and ending on the date three Business Days after the next succeeding
Interest Payment Date) be accompanied by payment in New York Clearing
House funds or other funds acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the principal
amount of such Security (or part thereof, as the case may be) being
surrendered for conversion. The interest so payable on such Interest
Payment Date with respect to any Security (or portion thereof, if
applicable) which is surrendered for conversion during the Record Date
Period shall be paid to the Holder of such Security as of such Regular
Record Date in an amount equal to the interest that would have been
payable on such Security if such Security had been converted as of the
close of business on such Interest Payment Date. Interest payable in
respect of any Security surrendered for conversion on or after an
Interest Payment Date shall be paid to the Holder of such Security as of
the next preceding Regular Record Date, notwithstanding the exercise of
the right of conversion. Except as provided in this paragraph, no cash
payment or adjustment shall be made upon any conversion on account of any
interest accrued from the Interest Payment Date next preceding the
conversion date, in respect of any Security (or part thereof, as the case
may be) surrendered for conversion, or on account of any dividends on the
Common Stock issued upon conversion. The Company's delivery to the Holder
of the number of shares of Common Stock (and cash in lieu of fractions
thereof, as provided in this Indenture) into which a Security is
convertible will be deemed to satisfy the Company's obligation to pay the
principal amount of the Security.
Securities shall be deemed to have been converted immediately prior
to the close of business on the day of surrender of such Securities for
conversion in accordance with the foregoing provisions, and at such time
the rights of the Holders of such Securities as Holders shall cease, and
the Person or Persons entitled to receive the Common Stock issuable upon
conversion shall be treated for all purposes as the record holder or
holders of such Common Stock at such time. As promptly as practicable on
or after the conversion date, the Company shall issue and deliver to the
Trustee, for delivery to the Holder, a certificate or certificates for
the number of full shares of Common Stock issuable upon conversion,
together with payment in lieu of any fraction of a share, as provided in
Section 12.3.
All shares of Common Stock delivered upon such conversion of
Restricted Securities shall bear restrictive legends substantially in the
form of the legends required to be set forth on the Restricted Securities
pursuant to Section 3.5 and shall be subject to the restrictions on
transfer provided in such legends. Neither the Trustee nor any agent
maintained for the purpose of such conversion shall have any
responsibility for the inclusion or content of any such restrictive
legends on such Common Stock; provided, however, that the Trustee or any
agent maintained for the purpose of such conversion shall have provided,
to the Company or to the Company's transfer agent for such Common Stock,
prior to or concurrently with a request to the Company to deliver such
Common Stock, written notice that the Securities delivered for conversion
are Restricted Securities.
In the case of any Security which is converted in part only, upon
such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the
Company, a new Security or Securities of authorized denominations in an
aggregate principal amount equal to the unconverted portion of the
principal amount of such Security. A Security may be converted in part,
but only if the principal amount of such Security to be converted is any
integral multiple of U.S. $1,000 and the principal amount of such
security to remain Outstanding after such conversion is equal to U.S.
$1,000 or any integral multiple of $1,000 in excess thereof.
If shares of Common Stock to be issued upon conversion of a
Restricted Security, or Securities to be issued upon conversion of a
Restricted Security in part only, are to be registered in a name other
than that of the beneficial owner of such Restricted Security, then such
Holder must deliver to the Conversion Agent a Surrender Certificate,
dated the date of surrender of such Restricted Security and signed by
such beneficial owner, as to compliance with the restrictions on transfer
applicable to such Restricted Security. Neither the Trustee nor any
Conversion Agent, Registrar or Transfer Agent shall be required to
register in a name other than that of the beneficial owner, shares of
Common Stock or Securities issued upon conversion of any such Restricted
Security not so accompanied by a properly completed Surrender
Certificate.
SECTION 12.3 Fractions of Shares
No fractional shares of Common Stock shall be issued upon
conversion of any Security or Securities. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the number
of full shares which shall be issuable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities
(or specified portions thereof) so surrendered. Instead of any fractional
share of Common Stock which would otherwise be issuable upon conversion
of any Security or Securities (or specified portions thereof), the
Company shall calculate and pay a cash adjustment in respect of such
fraction (calculated to the nearest 1/100th of a share) in an amount
equal to the same fraction of the Closing Price Per Share at the close of
business on the day of conversion.
SECTION 12.4 Adjustment of Conversion Rate
The Conversion Rate shall be subject to adjustments from time to
time as follows:
(1) In case the Company shall pay or make a dividend or
other distribution on shares of any class of Common Stock payable in
shares of Common Stock, the Conversion Rate in effect at the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such dividend or other distribution
shall be increased by dividing such Conversion Rate by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after the
opening of business on the day following the date fixed for such
determination. If, after any such date fixed for determination, any
dividend or distribution is not in fact paid, the Conversion Rate shall
be immediately readjusted, effective as of the date the Board of
Directors determines not to pay such dividend or distribution, to the
Conversion Rate that would have been in effect if such determination date
had not been fixed. For the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall not include shares
held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of
Common Stock. The Company will not pay any dividend or make any
distribution on shares of Common Stock held in the treasury of the
Company.
(2) In case the Company shall issue rights, options or
warrants to all holders of its Common Stock entitling them to subscribe
for or purchase shares of Common Stock at a price per share less than the
current market price per share (determined as provided in paragraph (8)
of this Section 12.4) of the Common Stock on the date fixed for the
determination of stockholders entitled to receive such rights, options or
warrants (other than any rights, options or warrants that by their terms
will also be issued to any Holder upon conversion of a Security into
shares of Common Stock without any action required by the Company or any
other Person), the Conversion Rate in effect at the opening of business
on the day following the date fixed for such determination shall be
increased by dividing such Conversion Rate by a fraction of which the
numerator shall be the number of shares of Common Stock outstanding at
the close of business on the date fixed for such determination plus the
number of shares of Common Stock which the aggregate of the offering
price of the total number of shares of Common Stock so offered for
subscription or purchase would purchase at such current market price and
the denominator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination plus
the number of shares of Common Stock so offered for subscription or
purchase, such increase to become effective immediately after the opening
of business on the day following the date fixed for such determination.
If, after any such date fixed for determination, any such rights, options
or warrants are not in fact issued, or are not exercised prior to the
expiration thereof, the Conversion Rate shall be immediately readjusted,
effective as of the date such rights, options or warrants expire, or the
date the Board of Directors determines not to issue such rights, options
or warrants, to the Conversion Rate that would have been in effect if the
unexercised rights, options or warrants had never been granted or such
determination date had not been fixed, as the case may be. For the
purposes of this paragraph (2), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any rights, options or warrants in respect of
shares of Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Rate in effect at the opening of business on the day following
the day upon which such subdivision becomes effective shall be
proportionately increased, and, conversely, in case outstanding shares of
Common Stock shall be combined into a smaller number of shares of Common
Stock, the Conversion Rate in effect at the opening of business on the
day following the day upon which such subdivision or combination becomes
effective shall be proportionately reduced, such increase or reduction,
as the case may be, to become effective immediately after the opening of
business on the day following the day upon which such subdivision or
combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of any class of capital stock or other assets
(including securities, but excluding (i) any rights, options or warrants
referred to in paragraph (2) of this Section, (ii) any dividend or
distribution paid exclusively in cash, (iii) any dividend or distribution
referred to in paragraph (1) of this Section and (iv) mergers or
consolidations to which Section 12.11 applies), the Conversion Rate shall
be adjusted so that the same shall equal the rate determined by dividing
the Conversion Rate in effect immediately prior to the close of business
on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall be
the current market price per share (determined as provided in paragraph
(8) of this Section 12.4) of the Common Stock on the date fixed for such
determination less the then fair market value (as determined by the Board
of directors, whose determination shall be conclusive and described in a
Board Resolution filed with the Trustee) of the portion of the assets,
shares or evidences of indebtedness so distributed applicable to one
share of Common Stock and the denominator shall be such current market
price per share of the Common Stock, such adjustment to become effective
immediately prior to the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive such
distribution. If after any such date fixed for determination, any such
distribution is not in fact made, the Conversion Rate shall be
immediately readjusted, effective as of the date of the Board of
Directors determines not to make such distribution, to the Conversion
Rate that would have been in effect if such determination date had not
been fixed.
(5) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed as part of a distribution referred to in paragraph
(4) of this Section or cash distributed upon a merger or consolidation to
which Section 12.11 applies) in an aggregate amount that, combined
together with (I) the aggregate amount of any other all-cash
distributions to all holders of its Common Stock made exclusively in cash
within the 12 months preceding the date of payment of such distribution
and in respect of which no adjustment pursuant to this paragraph (5) has
been made and (II) the aggregate of any cash plus the fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) of other consideration
payable in respect of any tender offer by the Company or any of its
Subsidiaries for all or any portion of the Common Stock concluded within
the 12 months preceding the date of payment of such distribution and in
respect of which no adjustment pursuant to paragraph (6) of this Section
12.4 has been made (the "combined cash and tender amount") exceeds 10%
of the product of the current market price per share (determined as
provided in paragraph (8) of this Section 12.4) of the Common Stock on
the date for the determination of holders of shares of Common Stock
entitled to receive such distribution times the number of shares of
Common Stock outstanding on such date (the "aggregate current market
price"), then, and in each such case, immediately after the close of
business on such date for determination, the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by dividing the
Conversion Rate in effect immediately prior to the close of business on
the date fixed for determination of the stockholders entitled to receive
such distribution by a fraction (i) the numerator of which shall be equal
to the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date fixed for
such determination less an amount equal to the quotient of (x) the excess
of such combined cash and tender amount over such aggregate current
market price divided by (y) the number of shares of Common Stock
outstanding on such date for determination and (ii) the denominator of
which shall be equal to the current market price per share (determined as
provided in paragraph (8) of this Section 12.4) of the Common Stock on
such date fixed for determination.
(6) In case a tender offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and
such tender offer (as amended upon the expiration thereof) shall require
the payment to stockholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market value
(as determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution) that combined together
with (I) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), as of the expiration of
such tender offer, of consideration payable in respect of any other
tender offer by the Company or any Subsidiary for all or any portion of
the Common Stock expiring within the 12 months preceding the expiration
of such tender offer and in respect of which no adjustment pursuant to
this paragraph (6) has been made and (II) the aggregate amount of any
cash distributions to all holders of the Common Stock within 12 months
preceding the expiration of such tender offer and in respect of which no
adjustment pursuant to paragraph (5) of this Section has been made (the
"combined tender and cash amount") exceeds 10% of the product of the
current market price per share of the Common Stock (determined as
provided in paragraph (8) of this Section 12.4) as of the last time (the
"Expiration Time") tenders could have been made pursuant to such tender
offer (as it may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration Time,
then, and in each such case immediately prior to the opening of business
on the day after the date of the Expiration Time, the Conversion Rate
shall be adjusted so that the same shall equal the rate determined by
dividing the Conversion Rate immediately prior to close of business on
the date of the Expiration Time by a fraction (i) the numerator of which
shall be equal to (A) the product of (I) the current market price per
share of the Common Stock (determined as provided in paragraph (8) of
this Section 12.4) on the date of the Expiration Time multiplied by (II)
the number of shares of Common Stock outstanding (including any tendered
shares) on the Expiration Time less (B) the combined tender and cash
amount, and (ii) the denominator of which shall be equal to the product
of (A) the current market price per share of the Common Stock (determined
as provided in paragraph (8) of this Section 12.4) as of the Expiration
Time multiplied by (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the number
of all shares validly tendered and not withdrawn as of the Expiration
Time (the shares deemed so accepted up to any such maximum, being
referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities
other than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 12.11 applies) shall be deemed
to involve (a) a distribution of such securities other than Common Stock
to all holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of stockholders entitled to receive such distribution" and
"the date fixed for such determination" within the meaning of paragraph
(4) of this Section), and (b) a subdivision or combination, as the case
may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such combination
becomes effective", as the case may be, and "the day upon which such
subdivision or combination becomes effective" within the meaning of
paragraph (3) of this Section 12.4).
(8) For the purpose of any computation under paragraphs
(2), (4), (5) or (6) of this Section 12.4, the current market price per
share of Common Stock on any date shall be calculated by the Company and
be the average of the daily Closing Prices Per Share for the five
consecutive Trading Days selected by the Company commencing not more than
10 Trading Days before, and ending not later than the earlier of the day
in question and the day before the "ex" date with respect to the
issuance or distribution requiring such computation. For purposes of this
paragraph, the term "'ex' date", when used with respect to any issuance
or distribution, means the first date on which the Common Stock trades
regular way in the applicable securities market or on the applicable
securities exchange without the right to receive such issuance or
distribution.
(9) No adjustment in the Conversion Rate shall be required
unless such adjustment (plus any adjustments not previously made by
reason of this paragraph (9)) would require an increase or decrease of at
least one percent in such rate; provided, however, that any adjustments
which by reason of this paragraph (9) are not required to be made shall
be carried forward and taken into account in any subsequent adjustment.
All calculations under this Article shall be made to the nearest cent or
to the nearest one-hundredth of a share, as the case may be.
(10) The Company may make such increases in the Conversion
Rate, for the remaining term of the Securities or any shorter term, in
addition to those required by paragraphs (1), (2), (3), (4), (5) and (6)
of this Section 12.4, as it considers to be advisable in order to avoid
or diminish any income tax to any holders of shares of Common Stock
resulting from any dividend or distribution of stock or issuance of
rights or warrants to purchase or subscribe for stock or from any event
treated as such for income tax purposes. The Company shall have the power
to resolve any ambiguity or correct any error in this paragraph (10) and
its actions in so doing shall, absent manifest error, be final and
conclusive.
(11) Notwithstanding the foregoing provisions of this
Section, no adjustment of the Conversion Rate shall be required to be
made (a) upon the issuance of shares of Common Stock pursuant to any
present or future plan for the reinvestment of dividends or (b) because
of a tender or exchange offer of the character described in Rule
13e-4(h)(5) under the Exchange Act or any successor rule thereto.
(12) To the extent permitted by applicable law, the Company
from time to time may increase the Conversion Rate by any amount for any
period of time if the period is at least twenty (20) days, the increase
is irrevocable during such period, and 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; provided, however,
that no such increase shall be taken into account for purposes of
determining (i) whether the Closing Price Per Share of the Common Stock
equals or exceeds 105% of the Conversion Price in connection with an
event which would otherwise be a Change of Control pursuant to Section
14.4, or (ii) whether the Closing Price Per Share of the Common Stock
exceeds 140% of the Conversion Price in connection with redemption of the
Securities in accordance with the provisions of the form of Securities
set forth in Section 2.2 hereof. Whenever the Conversion Rate is
increased pursuant to the preceding sentence, the Company shall give
notice of the increase to the Holders in the manner provided in Section
1.6 at least fifteen (15) days prior to the date the increased Conversion
Rate takes effect, and such notice shall state the increased Conversion
Rate and the period during which it will be in effect.
SECTION 12.5 Notice of Adjustments of Conversion Rate
Whenever the Conversion Rate is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Rate
in accordance with Section 12.4 and shall prepare a certificate signed by
the Chief Financial Officer of the Company setting forth the adjusted
Conversion Rate and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall promptly be filed
with the Trustee and with each Conversion Agent; and
(2) upon each such adjustment, a notice stating that the
Conversion Rate has been adjusted and setting forth the adjusted
Conversion Rate shall be required, and as soon as practicable after it is
required, such notice shall be provided by the Company to all Holders in
accordance with Section 1.6.
Neither the Trustee nor any Conversion Agent shall be under any
duty or responsibility with respect to any such certificate or the
information and calculations contained therein, except to exhibit the
same to any Holder of Securities desiring inspection thereof at its
office during normal business hours, and shall not be deemed to have
knowledge of any adjustment in the Conversion Rate unless and until a
Responsible Officer of the Trustee shall have received such a
certificate. Until a Responsible Officer of the Trustee receives such a
certificate, the Trustee and each Conversion Agent may assume without
inquiry that the last Conversion Rate of which the Trustee has knowledge
of remains in effect.
SECTION 12.6 Notice of Certain Corporate Action
In case:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) otherwise than exclusively
in cash or (ii) exclusively in cash in an amount that would require any
adjustment pursuant to Section 12.4; or
(2) the Company shall authorize the granting to all or
substantially all of the holders of its Common Stock of rights, options
or warrants to subscribe for or purchase any shares of capital stock of
any class or of any other rights that would require any adjustment
pursuant to Section 12.4; or
(3) of any reclassification of the Common Stock, or of any
consolidation, merger or share exchange to which the Company is a party
and for which approval of any stockholders of the Company is required, or
of the conveyance, sale, transfer or lease of all or substantially all of
the assets of the Company; or
(4) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
Then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to
Section 10.2, and shall cause to be provided to all Holders in accordance
with Section 1.6, at least 20 days (or 10 days in any case specified in
clause (1) or (2) above) prior to the applicable record or effective date
hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of such dividend, distribution, rights,
options or warrants, or, if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights, options or warrants are to be determined
or (y) the date on which such reclassification, consolidation, merger,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected
that holders of Common Stock of record shall be entitled to exchange
their shares of Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger,
conveyance, transfer, sale, lease, dissolution, liquidation or winding
up. Neither the failure to give such notice or the notice referred to in
the following paragraph nor any defect therein shall affect the legality
or validity of the proceedings described in clauses (1) through (4) of
this Section 12.6. If at the time the Trustee shall not be the conversion
agent, a copy of such notice shall also forthwith be filed by the Company
with the Trustee.
The Company shall cause to be filed at the Corporate Trust Office
and each office or agency maintained for the purpose of conversion of
Securities pursuant to Section 10.2, and shall cause to be provided to
all Holders in accordance with Section 1.6, notice of any tender offer by
the Company or any Subsidiary for all or any portion of the Common Stock
at or about the time that such notice of tender offer is provided to the
public generally.
SECTION 12.7 Company to Reserve Common Stock
The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of Securities, the full
number of shares of Common Stock then issuable upon the conversion of all
Outstanding Securities.
SECTION 12.8 Taxes on Conversions
Except as provided in the next sentence, the Company will pay any
and all taxes and duties that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of Securities pursuant
hereto. The Company shall not, however, be required to pay any tax or
duty which may be payable in respect of any transfer involved in the
issue and delivery of shares of Common Stock in a name other than that of
the Holder of the Security or Securities to be converted, and no such
issue or delivery shall be made unless and until the Person requesting
such issue has paid to the Company the amount of any such tax or duty, or
has established to the satisfaction of the Company that such tax or duty
has been paid.
SECTION 12.9 Covenant as to Common Stock
The Company agrees that all shares of Common Stock which may be
delivered upon conversion of Securities, upon such delivery, will have
been duly authorized and validly issued and will be fully paid and
nonassessable and, except as provided in Section 12.8, the Company will
pay all taxes, liens and charges with respect to the issue thereof.
SECTION 12.10 Cancellation of Converted Securities
All Securities delivered for conversion shall be delivered to the
Trustee or its agent to be canceled by or at the direction of the
Trustee, which shall dispose of the same as provided in Section 3.9.
SECTION 12.11 Provision in Case of Consolidation, Merger or Sale of Assets
In case of any consolidation or merger of the Company with or into
any other Person, any merger of another Person with or into the Company
(other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common
Stock of the Company) or any conveyance, sale, transfer or lease of all
or substantially all of the assets of the Company, the Person formed by
such consolidation or resulting from such merger or which acquires such
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 12.1, to convert
such Security only into the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, sale,
transfer or lease by a holder of the number of shares of Common Stock of
the Company into which such Security might have been converted
immediately prior to such consolidation, merger, conveyance, sale,
transfer or lease, assuming such holder of Common Stock of the Company
(i) is not (A) a Person with which the Company consolidated or merged
with or into or which merged into or with the Company or to which such
conveyance, sale, transfer or lease was made, as the case may be (a
"Constituent Person"), or (B) an Affiliate of a Constituent Person and
(ii) failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
consolidation, merger, conveyance, sale, transfer or lease (provided that
if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, conveyance, sale, transfer, or lease is
not the same for each share of Common Stock of the Company held
immediately prior to such consolidation, merger, conveyance, sale,
transfer or lease by others than a Constituent Person or an Affiliate
thereof and in respect of which such rights of election shall not have
been exercised ("Non-electing Share"), then for the purpose of this
Section 12.11 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, sale, transfer or
lease by the holders of each Non-electing Share shall be deemed to be the
kind and amount so receivable per share by a plurality of the
Non-electing Shares). Such supplemental indenture shall provide for
adjustments which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section 12.11 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases. Notice
of the execution of such a supplemental indenture shall be given by the
Company to the Holder of each Security as provided in Section 1.6
promptly upon such execution.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained
in any such supplemental indenture relating either to the kind or amount
of shares of stock or other securities or property or cash receivable by
Holders of Securities upon the conversion of their Securities after any
such consolidation, merger, conveyance, transfer, sale or lease or to any
such adjustment, but may accept as conclusive evidence of the correctness
of any such provisions, and shall be protected in relying upon, an
Opinion of Counsel with respect thereto, which the Company shall cause to
be furnished to the Trustee upon request.
SECTION 12.12 Rights Issued in Respect of Common Stock
Rights or warrants distributed by the Company to all holders of
Common Stock entitling the holders thereof to subscribe for or purchase
shares of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"):
(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 not be deemed distributed for purposes of Section 12.4(2) 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 Price shall be made
under this Section 12.4(4). If any such right or warrant, including any
such existing rights or warrants distributed prior to the date of this
Indenture, are subject to events, upon the occurrence of which such
rights or warrants become exercisable to purchase different securities,
evidences of indebtedness or other assets or different amounts of any of
the foregoing, or both, then the date of the occurrence of any 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 of
rights or warrants, or any Trigger Event with respect thereto, that shall
have resulted in an adjustment to the Conversion Rate under Section
12.4(2), (1) in the case of any such rights or warrants which shall all
have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder of
Common Stock with respect to such rights or warrants (assuming such
holder had retained such rights or warrants), made to all holders of
Common Stock as of the date of such redemption or repurchase, and (2) in
the case of any such rights or warrants all of which shall have expired
without exercise by any holder thereof, the Conversion Price shall be
readjusted as if such issuance had not occurred.
SECTION 12.13 Responsibility of Trustee for Conversion Provisions
The Trustee, subject to the provisions of Section 6.1, and any
Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts
exist which may require any adjustment of the Conversion Rate, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, herein or in any supplemental indenture
provided to be employed, in making the same, or whether a supplemental
indenture need be entered into. Neither the Trustee, subject to the
provisions of Section 6.1, nor any Conversion Agent shall be accountable
with respect to the validity or value (or the kind or amount) of any
Common Stock, or of any other securities or property or cash, which may
at any time be issued or delivered upon the conversion of any Security;
and it or they do not make any representation with respect thereto.
Neither the Trustee, subject to the provisions of Section 6.1, nor any
Conversion Agent shall be responsible for any failure of the Company to
make or calculate any cash payment or to issue, transfer or deliver any
shares of Common Stock or share certificates or other securities or
property or cash upon the surrender of any Security for the purpose of
conversion; and the Trustee, subject to the provisions of Section 6.1,
and any Conversion Agent shall not be responsible for any failure of the
Company to comply with any of the covenants of the Company contained in
this Article.
ARTICLE XIII
SUBORDINATION OF SECURITIES
SECTION 13.1 Securities Subordinate to Senior Indebtedness
The Company covenants and agrees, and each Holder of a Security, by
its acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article (subject
to the provisions of Article IV), the indebtedness represented by the
Securities and the payment of the principal of, or premium, if any, or
interest (including Liquidated Damages, if any) on, each and all of the
Securities (including, but not limited to, the Redemption Price with
respect to the Securities to be called for redemption in accordance with
Article XI or the Repurchase Price with respect to Securities submitted
for repurchase in accordance with Article XIV), are hereby expressly made
subordinate and subject in right of payment to the prior payment in full
of all Senior Indebtedness.
SECTION 13.2 No Payment in Certain Circumstances, Payment over of
Proceeds upon Dissolution, Etc
No payment shall be made with respect to the principal of, or
premium, if any, or interest (including Liquidated Damages, if any) on
the Securities (including, but not limited to, the Redemption Price with
respect to the Securities to be called for redemption in accordance with
Article XI or the Repurchase Price with respect to Securities submitted
for repurchase in accordance with Article XIV), except payments and
distributions made by the Trustee as permitted by Section 13.9, if:
(1) a default in the payment of principal, premium, if any,
or interest (including a default under any repurchase or redemption
obligation) or other amounts with respect to any Designated Senior Debt
occurs and is continuing (or, in the case of Designated Senior Debt 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 Debt) unless and until such
default shall have been cured or waived or shall have ceased to exist; or
(2) any other event of default occurs and is continuing
with respect to Designated Senior Debt that then permits holders of such
Designated Senior Debt to accelerate its maturity and the Trustee
receives a notice of the default (a "Payment Blockage Notice") from a
Representative or holder of Designated Senior Debt or the Company.
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 (A) at least 365
days shall have elapsed since the initial effectiveness of the
immediately prior Payment Blockage Notice, and (B) all scheduled payments
of principal, premium, if any, and interest 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 shall be, or be made, the basis for a subsequent
Payment Blockage Notice.
The Company may and shall resume payments on and distributions in
respect of the Securities upon the earlier of:
(3) 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
(4) in the case of a default referred to in clause (ii)
above, the date upon which the default is cured or waived or ceases to
exist or 179 days pass after notice is received if the maturity of such
Designated Senior Debt has not been accelerated.
Unless this Article XIII otherwise prohibits the payment or
distribution at the time of such payment or distribution.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other
similar case or proceeding in connection therewith, relative to the
Company or to its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any
other marshaling of assets and liabilities of the Company, then and in
any such event the holders of Senior Indebtedness shall be entitled to
receive payment in full of all amounts due or to become due on or in
respect of all Senior Indebtedness in cash before the Holders of the
Securities are entitled to receive any payment on account of principal of
(or premium, if any) or interest (including any Liquidated Damages) on
the Securities or on account of the purchase, redemption or other
acquisition of Securities, and to that end the holders of Senior
Indebtedness shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in
cash, property or securities, which may be payable or deliverable in
respect of the Securities in any such case, proceeding, dissolution,
liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received
any payment or distribution of assets of the Company of any kind or
character, whether in cash, securities or other property, before all
Senior Indebtedness is paid in full, and if such fact shall, at or prior
to the time of such payment or distribution, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other Person making payment or distribution of assets
of the Company for application to the payment of all Senior Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness
in full, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of capital 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, which shares of stock or securities are subordinated in
right of payment to all then outstanding Senior Indebtedness to
substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following
the conveyance or transfer of its properties and assets substantially as
an entirety to another Person upon the terms and conditions set forth in
Article VII shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshaling of
assets and liabilities of the Company for the purposes of this Section if
the Person formed by such consolidation or into which the Company is
merged or which acquires by conveyance or transfer such properties and
assets substantially as an entirety, as the case may be, shall, as a part
of such consolidation, merger, conveyance or transfer, comply with the
conditions set forth in Article VII.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at
or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company, in the case of
the Trustee, or the Trustee, in the case of such Holder.
SECTION 13.3 Prior Payment to Senior Indebtedness upon Acceleration
of Securities
In the event of the acceleration of the Securities because of an
Event of Default, no payment or distribution shall be made to the Trustee
or any holder of Securities in respect of the principal of, premium, if
any, or interest (including Liquidated Damages, if any) on the Securities
(including, but not limited to, the Redemption Price with respect to the
Securities called for redemption in accordance with Article XI or the
Repurchase Price with respect to the Securities submitted for repurchase
in accordance with Article XIV), except payments and distributions made
by the Trustee as permitted by Section 13.9, 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 the
Securities is accelerated because of an Event of Default, the Company
shall promptly notify holders of Senior Indebtedness of the acceleration.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at
or prior to the time of such payment, have been made known to the Trustee
or, as the case may be, such Holder, then and in such event such payment
shall be paid over and delivered forthwith to the Company, in the case of
the Trustee, or the Trustee, in the case of such Holder.
SECTION 13.4 Payment Permitted If No Default
Nothing contained in this Article or elsewhere in this Indenture or
in any of the Securities shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors
or other marshaling of assets and liabilities of the Company referred to
in Section 13.2, or during the circumstances referred to in the first
paragraph of Section 13.2, or under the conditions described in Section
13.3, from making payments at any time of principal of (and premium, if
any) or interest on the Securities, or (b) the application by the Trustee
of any money deposited with it hereunder to the payment of or on account
of the principal of (and premium, if any) or interest on the Securities
or the retention of such payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 13.5 Subrogation to Rights of Holders of Senior Indebtedness
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (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 such Senior
Indebtedness to receive payments and distributions of cash, property and
securities applicable to the Senior Indebtedness until the principal of
(and premium, if any) and interest on the Securities shall be paid in
full. For 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, and no payments over
pursuant to the provisions of this Article to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among
the Company, its creditors other than holders of Senior Indebtedness and
the Holders of the Securities, be deemed to be a payment or distribution
by the Company to or on account of the Senior Indebtedness.
SECTION 13.6 Provisions Solely to Define Relative Rights
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities
on the one hand and the holders of Senior Indebtedness on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in
the Securities is intended to or shall (i) impair, as among the Company,
its creditors other than holders of Senior Indebtedness and the Holders
of the Securities, the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the principal of
(and premium, if any) and interest (including Liquidated Damages, if any)
on the Securities as and when the same shall become due and payable in
accordance with their terms; or (ii) affect the relative rights against
the Company of the Holders of the Securities and creditors of the Company
other than the holders of Senior Indebtedness; or (iii) 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 of the holders of
Senior Indebtedness to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 13.7 Trustee to Effectuate Subordination
Each Holder of a Security by its acceptance thereof authorizes and
directs the Trustee on its behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article
and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 13.8 No Waiver of Subordination Provisions
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 non-compliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or the
Holders of the Securities, without incurring responsibility to the
Holders of the Securities and without impairing or releasing the
subordination provided in this Article or the obligations hereunder of
the Holders of the Securities to the holders of Senior Indebtedness, do
any one or more of the following: (i) change the manner, place or terms
of payment or extend the time of payment of, or renew or alter, Senior
Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under
which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for
the collection of Senior Indebtedness; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 13.9 Notice to Trustee
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article 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 to or by the Trustee in
respect of the Securities, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a
Representative or a holder of Senior Indebtedness (including, without
limitation, a holder of Designated Senior Debt) and, prior to the receipt
of any such written notice, the Trustee, subject to the provisions of
Section 6.1, shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 13.9 at least two
Business Days prior to the date upon which by the terms hereof any money
may become payable for any purpose (including, without limitation, the
payment of the principal of (and premium, if any) or interest (including
Liquidated Damages, if any) on any Security), then, anything herein
contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such money and to apply the same to the
purpose for which such money was received and shall not be affected by
any notice to the contrary which may be received by it within one
Business Day prior to such date.
Notwithstanding anything in this Article XIII to the contrary,
nothing shall prevent any payment by the Trustee to the Holders of monies
deposited with it pursuant to Section 4.1, and any such payment shall not
be subject to the provisions of Section 13.2 or 13.3.
Subject to the provisions of Section 6.1, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a Representative or a holder of Senior
Indebtedness (including, without limitation, a holder of Designated
Senior Debt) to establish that such notice has been given by a
Representative or a holder of Senior Indebtedness (including, without
limitation, a holder of Designated Senior Debt). In the event that the
Trustee determines in good faith that further evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article, 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, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
SECTION 13.10 Reliance on Judicial Order or Certificate of
Liquidating Agent
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section
6.1, and the Holders of the Securities shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which
such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the Persons
entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
SECTION 13.11 Trustee Not Fiduciary for Holders of Senior Indebtedness
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such
holders if it shall in good faith mistakenly pay over or distribute to
Holders of Securities or to the Company or to any other Person cash,
property or securities to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article or otherwise.
SECTION 13.12 Reliance by Holders of Senior Indebtedness on
Subordination Provisions
Each Holder by accepting a Security acknowledges and agrees that
the foregoing subordination provisions are, and are intended to be, an
inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after
the issuance of the Securities, to acquire and continue to hold, or to
continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in
continuing to hold, such Senior Indebtedness, and no amendment or
modification of the provisions contained herein shall diminish the rights
of such holders of Senior Indebtedness unless such holders shall have
agreed in writing thereto.
SECTION 13.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be 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.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 6.7.
SECTION 13.14 Article Applicable to Paying Agents
In case 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 in such case (unless the
context otherwise requires) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition
to or in place of the Trustee; provided, however, that Section 13.13
shall not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
SECTION 13.15 Certain Conversions and Repurchases Deemed Payment
For the purposes of this Article only, (i) the issuance and
delivery of junior securities upon conversion of Securities in accordance
with Article XII or upon the repurchase of Securities in accordance with
Article XIV shall not be deemed to constitute a payment or distribution
on account of the principal of or premium or interest (including
Liquidated Damages, if any) on Securities or on account of the purchase
or other acquisition of Securities, and (ii) the payment, issuance or
delivery of cash (except in satisfaction of fractional shares pursuant to
Section 12.3), property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account
of the principal of such Security. For the purposes of this Section, the
term "junior securities" means (a) shares of any stock of any class of
the Company and securities into which the Securities are convertible
pursuant to Article XII and (b) securities of the Company which are
subordinated in right of payment to all Senior Indebtedness which may be
outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article. Nothing
contained in this Article 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 of
the Securities, the right, which is absolute and unconditional, of the
Holder of any Security to convert such Security in accordance with
Article XII or to exchange such Security for Common Stock in accordance
with Article XIV if the Company elects to satisfy the obligations under
Article XIV by the delivery of Common Stock.
ARTICLE XIV
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE IN CONTROL
SECTION 14.1 Right to Require Repurchase
In the event that a Change in Control (as hereinafter defined)
shall occur, then each Holder shall have the right, at the Holder's
option, but subject to the provisions of Section 14.2, to require the
Company to repurchase, and upon the exercise of such right the Company
shall repurchase, all of such Holder's Securities not theretofore called
for redemption, or any portion of the principal amount thereof that is
equal to any integral multiple of U.S. $1,000 (provided that no single
Security may be repurchased in part unless the portion of the principal
amount of such Security to be Outstanding after such repurchase is equal
to U.S. $1,000 or integral multiples of U.S. $1,000 in excess thereof),
on the date (the "Repurchase Date") specified by the Company that is
not less than 40 nor more than 60 days after the date of the Offer to
Purchase (as defined in Section 14.3) at a purchase price equal to 100%
of the principal amount of the Securities to be repurchased plus interest
accrued to the Repurchase Date (the "Repurchase Price"); provided,
however, that installments of interest on Securities whose Stated
Maturity is on or prior to the Repurchase Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Record Date according to their terms
and the provisions of Section 3.7. Such right to require the repurchase
of the Securities shall not continue after a discharge of the Company
from its obligations with respect to the Securities in accordance with
Article IV, unless a Change in Control shall have occurred prior to such
discharge. At the option of the Company, the Repurchase Price may be paid
in cash or, subject to the fulfillment by the Company of the conditions
set forth Section 14.2, by delivery of shares of Common Stock having a
fair market value equal to the Repurchase Price. Whenever in this
Indenture (including Sections 2.2, 3.1 , 5.1(1) and 5.8) there is a
reference, in any context, to the principal of any Security as of any
time, such reference shall be deemed to include reference to the
Repurchase Price payable in respect of such Security to the extent that
such Repurchase Price is, was or would be so payable at such time, and
express mention of the Repurchase Price in any provision of this
Indenture shall not be construed as excluding the Repurchase Price in
those provisions of this Indenture when such express mention is not made;
provided, however, that for the purposes of Article XIII such reference
shall be deemed to include reference to the Repurchase Price only to the
extent the Repurchase Price is payable in cash.
SECTION 14.2 Conditions to the Company's Election to Pay the
Repurchase Price in Common Stock
The Company may elect to pay the Repurchase Price by delivery of
shares of Common Stock pursuant to Section 14.1 if and only if the
following conditions shall have been satisfied:
(1) The shares of Common Stock deliverable in payment of
the Repurchase Price shall have a fair market value as of the Repurchase
Date of not less than the Repurchase Price. For purposes of Section 14.1
and this Section 14.2, the fair market value of shares of Common Stock
shall be determined by the Company and shall be equal to 95% of the
average of the Closing Prices Per Share of the Common Stock for the five
consecutive Trading Days immediately preceding and including the third
Trading Day prior to the Repurchase Date;
(2) The Repurchase Price shall be paid only in cash in the
event any shares of Common Stock to be issued upon repurchase of
Securities hereunder (i) require registration under any federal
securities law before such shares may be freely transferable without
being subject to any transfer restrictions under the Securities Act upon
repurchase and if such registration is not completed or does not become
effective prior to the Repurchase Date, and/or (ii) require registration
with or approval of any governmental authority under any state law or any
other federal law before such shares may be validly issued or delivered
upon repurchase and if such registration is not completed or does not
become effective or such approval is not obtained prior to the Repurchase
Date;
(3) Payment of the Repurchase Price may not be made in
Common Stock unless such stock is, or shall have been, approved for
quotation on the Nasdaq National Market or listed on a national
securities exchange, in either case, prior to the Repurchase Date; and
(4) All shares of Common Stock which may be issued upon
repurchase of Securities will be issued out of the Company's authorized
but unissued Common Stock and, will upon issue, be duly and validly
issued and fully paid and non-assessable and free of any preemptive or
similar rights.
If all of the conditions set forth in this Section 14.2 are not
satisfied in accordance with the terms thereof, the Repurchase Price
shall be paid by the Company only in cash.
SECTION 14.3 Notices; Method of Exercising Repurchase Right, Etc.
(1) Unless the Company shall have theretofore called for
redemption all of the Outstanding Securities, on or before the 30th day
after the occurrence of a Change in Control, the Company or, at the
request and expense of the Company on or before the 15th day after such
occurrence, the Trustee, shall give to all Holders of Securities, in the
manner provided in Section 1.6, notice (the "Offer to Purchase") of the
occurrence of the Change of Control and of the repurchase right set forth
herein arising as a result thereof. The Company shall also deliver a
copy of such Offer to Purchase to the Trustee.
Each notice of a repurchase right shall state:
(i) the Repurchase Date,
(ii) the date by which the repurchase right must
be exercised pursuant to Section 14.3(2),
(iii) the Repurchase Price, and whether the
Repurchase Price shall be paid by the Company in cash or by delivery of
shares of Common Stock,
(iv) a description of the procedure which a
Holder must follow to exercise a repurchase right, and the place or
places where such Securities are to be surrendered for payment of the
Repurchase Price and accrued interest (including Liquidated Damages, if
any), if any to the Repurchase Date,
(v) that on the Repurchase Date the Repurchase
Price, and accrued interest (including liquidated Damages, if any), if
any to the Repurchase Date, will become due and payable upon each such
Security designated by the Holder to be repurchased, and that interest
thereon shall cease to accrue on and after said date,
(vi) the Conversion Rate then in effect, the
date on which the right to convert the principal amount of the Securities
to be repurchased will terminate and the place or places where such
Securities may be surrendered for conversion, and
(vii) the place or places that the Security
certificate with the Election of Holder to Require Repurchase as
specified in Section 2.2 shall be delivered, and if the Security is a
Restricted Securities Certificate the place or places that the Surrender
Certificate required by Section 14.3(9) shall be delivered.
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder' s right to exercise a repurchase right or
affect the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of this
Article XIV are inconsistent with applicable law, such law shall govern.
(2) To exercise a repurchase right, a Holder shall deliver
to the Trustee on or before the date that is five Business Days prior to
the Repurchase Date of the Offer to Purchase (i) written notice of the
Holder's exercise of such right, which notice shall set forth the name of
the Holder, the principal amount of the Securities to be repurchased
(and, if any Security is to repurchased in part, the serial number
thereof, the portion of the principal amount thereof to be repurchased
and the name of the Person in which the portion thereof to remain
Outstanding after such repurchase is to be registered) and a statement
that an election to exercise the repurchase right is being made thereby,
and, in the event that the Repurchase Price shall be paid in shares of
Common Stock, the name or names (with addresses) in which the certificate
or certificates for shares of Common Stock shall be issued, and (ii) the
Securities with respect to which the repurchase right is being exercised.
Such written notice shall be irrevocable, except that the right of the
Holder to convert the Securities with respect to which the repurchase
right is being exercised shall continue until the close of business on
the Repurchase Date.
(3) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to be
paid to the Trustee the Repurchase Price in cash or shares of Common
Stock, as provided above, for payment to the Holder on the Repurchase
Date or, if shares of Common Stock are to be paid, as promptly after the
Repurchase Date as practicable, together with accrued and unpaid interest
to the Repurchase Date payable with respect to the Securities as to which
the repurchase right has been exercised; provided, however, that
installments of interest that mature on or prior to the Repurchase Date
shall be payable in cash to the Holders of such Securities, or one or
more Predecessor Securities, registered as such at the close of business
on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date, the principal
amount of such Security (or portion thereof, as the case may be) shall,
until paid, bear interest to the extent permitted by applicable law from
the Repurchase Date at the rate of 7.0% per annum, and each Security
shall remain convertible into Common Stock until the principal of such
Security (or portion thereof, as the case may be) shall have been paid or
duly provided for.
(5) Any Security which is to be repurchased only in part
shall be surrendered to the Trustee (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or his attorney duly authorized in writing), and the
Company shall execute, and the Trustee shall authenticate and make
available for delivery to the Holder of such Security without service
charge, a new Security or Securities, containing identical terms and
conditions, each in an authorized denomination in aggregate principal
amount equal to and in exchange for the unrepurchased portion of the
principal of the Security so surrendered.
(6) Any issuance of shares of Common Stock in respect of
the Repurchase Price shall be deemed to have been effected immediately
prior to the close of business on the Repurchase Date and the Person or
Persons in whose name or names any certificate or certificates for shares
of Common Stock shall be issuable upon such repurchase shall be deemed to
have become on the Repurchase Date the holder or holders of record of the
shares represented thereby; provided, however, that any surrender for
repurchase on a date when the stock transfer books of the Company shall
be closed shall constitute the Person or Persons in whose name or names
the certificate or certificates for such shares are to be issued as the
record holder or holders thereof for all purposes at the opening of
business on the next succeeding day on which such stock transfer books
are open. No payment or adjustment shall be made for dividends or
distributions on any Common Stock issued upon repurchase of any Security
declared prior to the Repurchase Date.
(7) No fractions of shares shall be issued upon repurchase
of Securities. If more than one Security shall be repurchased from the
same Holder and the Repurchase Price shall be payable in shares of Common
Stock, the number of full shares which shall be issuable upon such
repurchase shall be computed on the basis of the aggregate principal
amount of the Securities so repurchased. Instead of any fractional share
of Common Stock which would otherwise be issuable on the repurchase of
any Security or Securities, the Company will deliver to the applicable
Holder its check for the current market value of such fractional share.
The current market value of a fraction of a share is determined by
multiplying the current market price of a full share by the fraction, and
rounding the result to the nearest cent. For purposes of this Section,
the current market price of a share of Common Stock is the Closing Price
Per Share of the Common Stock on the Trading Day immediately preceding
the Repurchase Date.
(8) Any issuance and delivery of certificates for shares of
Common Stock on repurchase of Securities shall be made without charge to
the Holder of Securities being repurchased for such certificates or for
any tax or duty in respect of the issuance or delivery of such
certificates or the securities represented thereby; provided, however,
that the Company shall not be required to pay any tax or duty which may
be payable in respect of (i) income of the Holder or (ii) any transfer
involved in the issuance or delivery of certificates for shares of Common
Stock in a name other than that of the Holder of the Securities being
repurchased, and no such issuance or delivery shall be made unless and
until the Person requesting such issuance or delivery has paid to the
Company the amount of any such tax or duty or has established, to the
satisfaction of the Company, that such tax or duty has been paid.
(9) If shares of Common Stock to be delivered upon
repurchase of a Security are to be registered in a name other than that
of the beneficial owner of such Security, then such Holder must deliver
to the Trustee a Surrender Certificate, dated the date of surrender of
such Restricted Security and signed by such beneficial owner, as to
compliance with the restrictions on transfer applicable to such
Restricted Security. Neither the Trustee nor any Registrar or Transfer
Agent or other agents shall be required to register in a name other than
that of the beneficial owner shares of Common Stock issued upon
repurchase of any such Restricted Security not so accompanied by a
properly completed Surrender Certificate.
(10) All Securities delivered for repurchase shall be
delivered to the Trustee to be canceled at the direction of the Trustee,
which shall dispose of the same as provided in Section 3.9.
SECTION 14.4 Certain Definitions
For purposes of this Article XIV,
(1) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3, as in effect on the date of the original
execution of this Indenture, promulgated by the Commission pursuant to
the Exchange Act;
(2) a "Change in Control" shall be deemed to have
occurred at the time, after the original issuance of the Securities, of:
(i) the acquisition by any Person (including
any syndicate or group deemed to be a "person" under Section 13(d)(3)
of the Exchange Act) of beneficial ownership, directly or indirectly,
through a purchase, merger or other acquisition transaction or series of
transactions, of shares of capital stock of the Company entitling such
person to exercise 50% or more of the total voting power of all shares of
capital stock of the Company entitled to vote generally in the elections
of directors, other than any such acquisition by the Company, any
subsidiary of the Company or any employee benefit plan of the Company; or
(ii) any consolidation of the Company with, or
merger of the Company into, any other Person, any merger of another
Person into the Company, or any conveyance, sale, transfer or lease of
all or substantially all of the assets of the Company to another Person
(other than (a) any such transaction (x) which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of capital stock of the Company and (y) pursuant to which the
holders of the Common Stock immediately prior to such transaction have
the entitlement to exercise, directly or indirectly, 50% or more of the
total voting power of all shares of capital stock entitled to vote
generally in the election of directors of the continuing or surviving
corporation immediately after such transaction and (b) any merger which
is effected solely to change the jurisdiction of incorporation of the
Company and results in a reclassification, conversion or exchange of
outstanding shares of Common Stock into solely shares of common stock);
provided, however, that a Change in Control shall not be deemed to have
occurred if (I) the Closing Sales Price Per Share of the Common Stock for
any five Trading Days within the period of 10 consecutive Trading Days
ending immediately after the later of the Change in Control or the public
announcement of the Change in Control (in the case of a Change in Control
under clause (i) above) or the period of 10 consecutive Trading Days
ending immediately before the Change in Control (in the case of a Change
in Control under clause (ii) above) shall equal or exceed 105% of the
Conversion Price of the Securities in effect on each such Trading Day, or
(II) all of the consideration (excluding cash payments for fractional
shares and cash payments made pursuant to dissenters' appraisal rights)
in a merger or consolidation constituting a Change of Control consists of
shares of common stock traded on a national securities exchange or on the
Nasdaq National Market (or will be so traded or quoted immediately
following the Change of Control).
(3) the term "Conversion Price" shall equal U.S.$1,000
divided by the Conversion Rate (rounded to the nearest cent); and
(4) for purposes of Section 14.4(2)(i), the term "Person"
shall include any syndicate or group which would be deemed to be a
"person" under Section 13(d)(3) of the Exchange Act, as in effect on
the date of the original execution of this Indenture.
SECTION 14.5 Consolidation, Merger, etc.
In the case of any merger, consolidation, conveyance, sale,
transfer or lease of all or substantially all of the assets of the
Company to which Section 12.11 applies, in which the Common stock of the
Company is changed or exchanged as a result into the right to receive
shares of stock and other securities or property or assets (including
cash) which includes shares of Common Stock of the Company or common
stock of another Person that are, or upon issuance will be, traded on a
United States national securities exchange or approved for trading on an
established automated over-the-counter trading market in the United
States and such shares constitute at the time such change or exchange
becomes effective in excess of 50% of the aggregate fair market value of
such shares of stock and other securities, property and assets (including
cash) (as determined by the Company, which determination shall be
conclusive and binding), then the Person formed by such consolidation or
resulting from such merger or combination or which acquires the
properties or assets (including cash) of the Company, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of
execution of such supplemental indenture) modifying the provisions of
this Indenture relating to the right of Holders to cause the Company to
repurchase the Securities following a Change in Control, including
without limitation the applicable provisions of this Article XIV and the
definitions of the Common Stock and Change in Control, as appropriate,
and such other related definitions set forth herein as determined in good
faith by the Company (which determination shall be conclusive and
binding), to make such provisions apply in the event of a subsequent
Change in Control to the common stock and the issuer thereof if different
from the Company and Common Stock of the Company (in lieu of the Company
and the Common Stock of the Company).
ARTICLE XV
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY; NON-RECOURSE
SECTION 15.1 Company to Furnish Trustee Names and Addresses of Holders
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after the Regular
Record Date, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of Securities as of such
Regular Record Date, and
(2) at such other times as the Trustee may reasonably
request in writing, within 30 days after the receipt by the Company of
any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
provided, however, that no such list need be furnished so long as the
Trustee is acting as Security Registrar.
SECTION 15.2 Preservation of Information
(1) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 15.1
and the names and addresses of Holders received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list, if any,
furnished to it as provided in Section 15.1 upon receipt of a new list so
furnished.
(2) After this Indenture has been qualified under the Trust
Indenture Act, the rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Securities, and the corresponding rights, and duties of the Trustee,
shall be as provided by the Trust Indenture Act.
(3) Every Holder of Securities, 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 15.3 Reserved
SECTION 15.4 Reports by Trustee
(1) After this Indenture has been qualified under the Trust
Indenture Act, 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.
(2) After this Indenture has been qualified under the Trust
Indenture Act, a copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when the Securities are
listed on any stock exchange or any delisiting thereof.
SECTION 15.5 Reports by Company
After this Indenture has been qualified under the Trust Indenture
Act, the Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934 shall be filed with the Trustee within 15
days after the same is so required to be filed with the Commission.
ARTICLE XVI
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 16.1 Indenture and Securities Solely Corporate Obligations
No recourse for the payment of the principal of or premium, if any,
or interest on any Security and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any
supplemental indenture or in any Security, or because of the creation of
any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer, or director or
subsidiary, as such, past, present or future, of the Company or of any
successor corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that all such liability is
hereby waived and released as a condition of, and as a consideration for,
the execution of this Indenture and the issue of the Securities.
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed all as of the day and year first above written.
EXODUS COMMUNICATIONS, INC.
By:_________________________________
Name:
Title:
CHASE MANHATTAN BANK AND TRUST
COMPANY, NATIONAL ASSOCIATION,
as Trustee
By:_________________________________
Name:
Title:
[Signature Page to Indenture]
ANNEX A -- Form of Restricted Securities Certificate
RESTRICTED SECURITIES CERTIFICATE (For transfers pursuant to
Section 3.5(2)(ii) and (iii) of the Indenture)
Chase Manhattan Bank and Trust Company, National Association
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx XX 00000.
Re: 5% CONVERTIBLE SUBORDINATED NOTES DUE MARCH 15, 2006 OF
EXODUS COMMUNICATIONS, INC. (THE "SECURITIES")
Reference is made to the Indenture, dated as of March 1, 1999 (the
"Indenture"), from Exodus Communications, Inc. (the "Company") to
Chase Manhattan Bank and Trust Company, National Association, as Trustee.
Terms used herein and defined in the Indenture or Rule 144 under the U.S.
Securities Act of 1933 (the "Securities Act") are used herein as so
defined.
This certificate relates to U.S. $________ principal amount of
Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No._______________
CERTIFICATE No(s).__________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole
beneficial owner of the Specified Securities or (ii) it is acting on
behalf of all the beneficial owners of the Specified Securities and is
duly authorized by them to do so. Such beneficial owner or owners are
referred to herein collectively as the "Owner". If the Specified
Securities are represented by a Global Security, they are held through
the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented
by a Global Security, they are registered in the name of the Undersigned,
as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
transferred to a person (the "Transferee") who will take delivery in
the form of a Restricted Security. In connection with such transfer, the
Owner hereby certifies that, unless such transfer is being effected
pursuant to an effective registration statement under the Securities Act,
it is being effected in accordance with Rule 144A or Rule 144 under the
Securities Act and all applicable securities laws of the states of the
United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as:
(1) RULE 144A TRANSFERS. If the transfer is being effected in
accordance with Rule 144A:
(A) the Specified Securities are being transferred to a
person that the Owner and any person acting on its behalf reasonably
believe is a "qualified institutional buyer" within the meaning of Rule
144A, acquiring for its own account or for the account of a qualified
institutional buyer; and
(B) the Owner and any person acting on its behalf have
taken reasonable steps to ensure that the Transferee is aware that the
Owner may be relying on Rule 144A in connection with the transfer; and
(2) RULE 144 TRANSFERS. If the transfer is being effected
pursuant to Rule 144:
(A) the transfer is occurring after a holding period of at
least one year (computed in accordance with paragraph (d) of Rule 144)
has elapsed since the date the Specified Securities were acquired from
the Company or from an affiliate (as such term is defined in Rule 144) of
the Company, whichever is later, and is being effected in accordance with
the applicable amount, manner of sale and notice requirements of
paragraphs (e), (f) and (h) of Rule 144; or
(B) the transfer is occurring after a period of at least
two years has elapsed since the date the Specified Securities were
acquired from the Company or from an affiliate (as such term is defined
in Rule 144) of the Company, whichever is later, and the Owner is not,
and during the preceding three months has not been, an affiliate of the
Company.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchasers.
Dated:
Print the name of the Undersigned, as such term is defined in the
second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the
title of the person signing on behalf of the Undersigned must be stated.)
ANNEX B -- Form of Unrestricted Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Restricted Securities Legend pursuant to Section 3.5(3))
Chase Manhattan Bank and Trust Company, National Association
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxx Xxxxxxxxx, XX 00000.
RE: 5% CONVERTIBLE SUBORDINATED NOTES DUE MARCH 15,
2006 OF EXODUS COMMUNICATIONS, INC. (THE
"SECURITIES")
Reference is made to the Indenture, dated as of March
1, 1999 (the "Indenture"), from Exodus Communications, Inc. (the
"Company") to Chase Manhattan Bank and Trust Company, National
Association, as Trustee. Terms used herein and defined in the Indenture
or in Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S.$_______________
principal amount of Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No._______________
CERTIFICATE No(s).__________
The person in whose name this certificate is executed
below (the "Undersigned") hereby certifies that either (i) it is the
sole beneficial owner of the Specified Securities or (ii) it is acting on
behalf of all the beneficial owners of the Specified Securities and is
duly authorized by them to do so. Such beneficial owner or owners are
referred to herein collectively as the "Owner". If the Specified
Securities are represented by a Global Security, they are held through
the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented
by a Global Security, they are registered in the name of the Undersigned,
as or on behalf of the Owner.
The Owner has requested that the Specified Securities
be exchanged for Securities bearing no Restricted Securities Legend
pursuant to Section 3.5(3) of the Indenture. In connection with such
exchange, the Owner hereby certifies that the exchange is occurring after
a period of at least two years has elapsed since the date the Specified
Securities were acquired from the Company or from an "affiliate" (as
such term is defined in Rule 144) of the Company, whichever is later, and
the Owner is not, and during the preceding three months has not been, an
affiliate of the Company. The Owner also acknowledges that any future
transfers of the Specified Securities must comply with all applicable
securities laws of the states of the United States and other
jurisdictions.
This certificate and the statements contained herein
are made for your benefit and the benefit of the Company and the Initial
Purchasers.
Dated:
(Print the name of the Undersigned, as such term is defined in the
second paragraph of this certificate.)
By:
Name:
Title:
(If the Undersigned is a corporation, partnership or fiduciary, the
title of the person signing on behalf of the Undersigned must be stated.)
ANNEX C -- Form of Surrender Certificate
In connection with the certification contemplated by
Section 12.2 or 14.3(9) relating to compliance with certain restrictions
relating to transfers of Restricted Securities, such certification shall
be provided substantially in the form of the following certificate, with
only such changes thereto as shall be approved by the Company and
Xxxxxxx, Xxxxx & Co.:
CERTIFICATE
EXODUS COMMUNICATIONS, INC.
5% CONVERTIBLE NOTES DUE MARCH 15, 2006
This is to certify that as of the date hereof with
respect to U.S. $______ principal amount of the above-captioned
securities surrendered on the date hereof (the "Surrendered
Securities") for registration of transfer, or for conversion or
repurchase where the securities issuable upon such conversion or
repurchase are to be registered in a name other than that of the
undersigned Holder (each such transaction being a "transfer"), the
undersigned Holder (as defined in the Indenture) certifies that the
transfer of Surrendered Securities associated with such transfer complies
with the restrictive legend set forth on the face of the Surrendered
Securities for the reason checked below:
The transfer of the Surrendered Securities complies
with Rule 144 under the United States Securities Act of 1933,
as amended (the "Securities Act"); or
The transfer of the Surrendered Securities complies
with Rule 144A under the Securities Act; or
The transfer of the Surrendered Securities has been
made to an institution that is an "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under
the Securities Act in a transaction exempt from the
registration requirements of the Securities Act.
[Name of Holder]
Dated:
*To be dated the date of surrender