Exhibit 4
_________________________________________________________
FISCAL AGENCY AGREEMENT
among
THERMO CARDIOSYSTEMS INC.,
as Issuer,
THERMO ELECTRON CORPORATION,
as Guarantor
and
BANKERS TRUST COMPANY,
as Fiscal Agent
______________________
Dated as of May 14, 1997
______________________
U.S. $70,000,000 Principal Amount
4-3/4% Convertible Subordinated Debentures Due 2004
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PAGE
CONTENTS
Heading Page
1. The Securities 1
2. Appointment of Agents and Security Registrar 4
3. Registration of Transfer and Exchange; Restrictions
on Transfer 5
4. Closing Date; Exchange of Regulation S Global Security 11
5. Payment 13
6. Redemption 16
7. Conversion of Securities 18
8. Surrendered Securities 26
9. Mutilated, Destroyed, Stolen or Lost Securities 27
10. Signatures 27
11. Agreements Concerning Agents 27
12. Offices, Resignation, Successors, Etc. of Agents, Paying,
Conversion and Transfer Agencies 30
13. Taxes 33
14. Meetings and Votes of Holders 33
15. Merger, Consolidation or Sale of Assets 36
16. Governing Law 37
17. Amendments 37
18. Agent for Service of Process 38
19. Notices 38
20. Counterparts 39
PAGE
Exhibit A- Form of Registered Security
Form of Bearer Security
Exhibit B- Form of Regulation S Global Security
Exhibit C- Form of Certificate to be given by the
Euroclear Operator or Cedel with respect to the exchange of all
or a portion of the Regulation S Global Security for Bearer
Securities
Exhibit D- Form of Certificate of Beneficial Ownership
for Bearer Securities to be provided to the Euroclear Operator or
Cedel
Exhibit E- Form of Certificate of Beneficial Ownership
for Registered Securities to be provided to the Euroclear
Operator or Cedel
Exhibit F- Form of Certificate to be given by the
Euroclear Operator or Cedel with respect to the exchange of all
or a portion of the Regulation S Global Security for Registered
Regulation S Securities
Exhibit G- Form of Transferee Letter
PAGE
FISCAL AGENCY AGREEMENT, dated as of May 14, 1997 (this
"Agreement"), among Thermo Cardiosystems Inc., a corporation duly
organized and validly existing under the laws of the Commonwealth
of Massachusetts (the "Company"), Thermo Electron Corporation, a
corporation duly organized and validly existing under the laws of
the State of Delaware (the "Guarantor"), and Bankers Trust
Company, a banking corporation duly organized and validly
existing under the laws of the State of New York (the "Fiscal
Agent").
1. The Securities.
(a) The Company has, by a Subscription Agreement,
dated May 9, 1997 (the "Subscription Agreement"), among the
Company, the Guarantor and the managers named therein (the
"Managers"), agreed to issue and sell to the Managers U.S.
$70,000,000 aggregate principal amount of its 4-3/4% Convertible
Subordinated Debentures Due 2004 (hereinafter referred to as the
"Securities"). The amount of Securities that may be issued
hereunder may be increased by agreement among ▇▇▇▇▇▇ Brothers
International (Europe) (the "Lead Manager"), the Company, the
Guarantor and the Fiscal Agent, and such additional securities
shall be "Securities" hereunder. The due and punctual payment of
principal, premium, if any, and interest and Additional Amounts
(as defined in Section 2 of the Securities) on the Securities
when and as the same shall become due and payable, whether at
maturity, upon redemption or otherwise, are unconditionally
guaranteed on a subordinated basis by the Guarantor. Interest on
the Securities shall be calculated on the basis of a 360 day year
comprised of twelve 30-day months.
(b) Pursuant to the Subscription Agreement, the
Managers (or their affiliates) may sell the Securities to (i)
persons who are not "U.S. Persons" (as such term is defined in
Regulation S promulgated by the United States Securities and
Exchange Commission (the "SEC") pursuant to the Securities Act of
1933, as amended (the "Securities Act")) in transactions that
meet the requirements of Regulation S, (ii) "qualified
institutional buyers" (as such term is defined in Rule 144A
promulgated by the SEC pursuant to the Securities Act and
hereinafter referred to as "QIBs") in reliance on Rule 144A (the
Securities that are resold by the Managers pursuant to Rule 144A
being hereinafter referred to as the "Rule 144A Securities") and
(iii) a limited number of "institutional accredited investors"
(within the meaning of Rule 501(a)(1), (2), (3) or (7)
promulgated by the SEC pursuant to the Securities Act)
("Institutional Accredited Investors") that, prior to their
purchase of any Securities, deliver to the Managers a letter
containing certain representations and agreements (the Securities
that are resold by the Managers to institutional accredited
investors being referred to as the "Accredited Investor
Securities").
(c) A portion of the Securities will initially be
issued in the form of a temporary global debenture in bearer form
PAGE
without coupons or conversion rights having endorsed thereon the
guarantee of the Guarantor (the "Guarantee"), which will be
deposited with a depository in London for Cedel and Euroclear for
the accounts of the subscribers of such Securities on the Closing
Date (as defined herein). Upon deposit of the temporary global
debenture, Cedel or Euroclear, as the case may be, will credit
each subscriber with a principal amount of Securities equal to
the principal amount thereof for which it has subscribed and paid
in the aggregate principal amount of the entire issue of
Securities less the aggregate principal amount of the Rule 144A
Securities and Accredited Investor Securities concurrently
issued, substantially in the form of Exhibit B hereto (the
"Regulation S Global Security"). As hereinafter provided, the
Regulation S Global Security may subsequently be exchanged for
Securities (i) in printed definitive form with the Guarantees
endorsed thereon either as (a) bearer Securities ("Bearer
Securities") in denominations of U.S. $1,000 and U.S. $10,000 and
with interest coupons attached thereto, representing the
semi-annual interest payable thereon, or (b) fully registered
Securities ("Registered Regulation S Securities") in
denominations of U.S. $1,000 and integral multiples thereof,
without coupons, or (ii) if permitted by Cedel or Euroclear, as
the case may be, a beneficial interest in the Rule 144A Global
Security (as defined below), in accordance with the provisions of
Section 3(c). Bearer Securities shall be substantially in the
form of Exhibit A hereto, including the coupons set forth
therein. Registered Regulation S Securities also shall be
substantially in the form of Exhibit A hereto. The Securities
which are not Bearer Securities or the Regulation S Global
Security are hereinafter collectively referred to as the
"Registered Securities."
(d) The Rule 144A Securities will initially be issued
in the form of a global Security in the aggregate principal
amount of the Rule 144A Securities, which Security shall be in
substantially the form of Exhibit A hereto, having endorsed
thereon a Guarantee, and is hereinafter referred to as the "Rule
144A Global Security." Such Rule 144A Global Security shall be
duly executed by the Company and authenticated by the Fiscal
Agent (as defined below) as hereinafter provided and will be
deposited on the Closing Date with, or on behalf of, The
Depositary Trust Company ("DTC") and registered in the name of
Cede & Co., as nominee of DTC. The aggregate principal amount of
the Rule 144A Global Security may from time to time be increased
or reduced by adjustments made in the Security Register.
Transfers of interests in the Rule 144A Global Security will be
subject to certain restrictions set forth therein and described
in Section 3 hereof.
(e) The Accredited Investor Securities will initially
be issued in fully registered form in minimum denominations of
U.S. $50,000 and integral multiples of U.S. $1,000 in excess
thereof, which Securities shall be in substantially the form of
Exhibit A hereto, having endorsed thereon a Guarantee, and are
hereinafter collectively referred to as "Registered Accredited
Investor Securities." Such Registered Accredited Investor
Securities shall be in definitive, fully registered certificated
PAGE
form only and registered in the names of such Institutional
Accredited Investors or their nominees. Such Institutional
Accredited Investors may not elect to hold Registered Accredited
Investor Securities through DTC, Euroclear or Cedel. As provided
herein, such Registered Accredited Investor Securities may
subsequently be exchanged for Registered Accredited Investor
Securities in denominations of $1,000 and integral multiples
thereof. The aggregate principal amount of the Registered
Accredited Investor Securities may be increased or reduced by
adjustments made in the Security Register. Transfers of
Registered Accredited Investor Securities will be subject to
certain restrictions set forth therein and described in Section 3
hereof.
(f) During the period beginning on the Closing Date
and ending on the date which is two years (or the then
applicable holding period under Rule 144(k) under the Securities
Act (or successor provision)) after the later of the date of
original issuance thereof and the last date on which the Company
or any affiliate of the Company was the owner thereof (or any
predecessor), all Rule 144A Securities, all Accredited Investor
Securities, all other Registered Securities and all Securities
issued upon registration of transfer of or in exchange for such
Securities, shall be "Restricted Securities" and shall be subject
to the restrictions on transfer in Section 3 hereof; provided,
however, that the term "Restricted Securities" shall not include
Registered Securities as to which such restrictions on transfer
have been terminated in accordance with Section 3(g) hereof. All
Restricted Securities shall bear the legend required by Section
3(f) hereof.
(g) The Securities will be convertible as provided in
Section 4 of the Registered Securities and the Bearer Securities
and Section 7 hereof. The Securities may be redeemed by the
Company as provided in Section 3 of the Registered Securities and
the Bearer Securities and Section 6 hereof. The Securities will
be subordinated as provided in Section 7 of the Registered
Securities and the Bearer Securities. The Registered Securities,
the Bearer Securities and the Regulation S Global Security shall
contain such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Agreement
and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as
may, consistent herewith, be determined by the officer of the
Company executing such Securities, as evidenced by his execution
of such Securities.
(h) The Company in issuing the Securities shall use
CUSIP numbers, and the Fiscal Agent may use such CUSIP numbers in
any notice of redemption with respect to the Securities. The
Company shall obtain one CUSIP number for the Rule 144A
Securities, one for the Accredited Investor Securities and one
for the Registered Regulation S Securities. In addition, the
Company shall obtain an ISIN number and a Common Code for the
Regulation S Global Security, the Bearer Securities and the
Registered Regulation S Securities.
PAGE
(i) Pursuant to the Subscription Agreement, the
Managers (or their affiliates) may sell the Securities to persons
who are not persons within the United States or its possessions
or "United States persons" as defined in the Internal Revenue
Code except as provided in U.S. Treasury Regulation Section
1.163-5 (c) (2) (i) (D). In compliance with United States tax
laws and regulations, Bearer Securities may not be offered or
sold during the 40-day period beginning on the Closing Date, or
at any time if part of a Manager's unsold allotment, to a person
who is within the United States or its possessions or to a United
States person other than (a) foreign branches of United States
financial institutions if such institutions agree in writing to
comply with the requirements of Section 165(j)(3)(A), (B), or (C)
of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder, (b) United States offices of exempt
distributors, or (c) United States offices of international
organizations or foreign central banks. United States tax laws
and regulations also require that Bearer Securities not be
delivered within the United States or its possessions.
(j) The Company will use its reasonable best efforts
to have the Securities approved for listing on the Luxembourg
Stock Exchange or such other exchange as shall be agreed upon by
the Managers and the Company, as soon as practicable after the
date hereof.
2. Appointment of Agents and Security Registrar.
(a) The Company and the Guarantor hereby appoint
Bankers Trust Company, at present having an office at Four Albany
Street, New York, New York 10006 (The "Fiscal Agent"), as their
fiscal agent in respect of the Securities and the Guarantees upon
the terms and subject to the conditions herein set forth.
(Bankers Trust Company and its successor or successors as such
fiscal agent qualified and appointed in accordance with Section
12 hereof are herein called the "Fiscal Agent.") The Fiscal Agent
shall have the powers and authority granted to and conferred upon
it herein and in the Securities, and such further powers and
authority, acceptable to it, to act on behalf of the Company and
the Guarantor as the Company and the Guarantor may hereafter
grant to or confer upon it.
(b) The Company and the Guarantor hereby appoint
Bankers Trust Company, having an office at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ as principal paying agent (the
"Principal Paying Agent"), in respect of the Securities and the
Guarantees upon the terms and subject to the conditions herein
set forth. (The Fiscal Agent and Principal Paying Agent and
their successor or successors as such paying agent qualified and
appointed in accordance with Section 12 hereof are herein called
the "Paying Agent.") The Paying Agent shall have the powers and
authority granted to and conferred upon it herein and in the
Securities, and such further powers and authority, acceptable to
it, to act on behalf of the Company and the Guarantor as the
Company and the Guarantor may hereafter grant to or confer upon
it. As used herein, "paying agencies" shall mean paying agencies
maintained by the Company as provided in Section 12(f) hereof.
PAGE
(c) The Company hereby appoints the Fiscal Agent as
its conversion agent in respect of the Securities upon the terms
and subject to the conditions herein set forth. (The Fiscal Agent
and its successor or successors as such conversion agent
qualified and appointed in accordance with Section 12 hereof are
herein called the "Principal Conversion Agent," and the Paying
Agent, the Principal Paying Agent, the Principal Conversion
Agent, the Transfer Agents (as herein defined) and the Fiscal
Agent are sometimes herein referred to severally as an "Agent"
and, collectively, as the "Agents"). The Principal Conversion
Agent shall have the powers and authority granted to and
conferred upon it herein and in the Securities, and such further
powers and authority, acceptable to it, to act on behalf of the
Company as the Company may hereafter grant to or confer upon it.
As used herein, "conversion agencies" shall mean conversion
agencies maintained by the Company as provided in Section 12(f)
hereof.
(d) The Company shall cause to be kept at the office
of the Fiscal Agent a register (the registers maintained in such
office and in any other office or agency designated for such
purpose (which office shall be located outside of the United
Kingdom) being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable
regulations as the Fiscal Agent may prescribe, the Company shall
provide for the registration of Registered Securities and of
transfers of Registered Securities. The Fiscal Agent is hereby
appointed "Security Registrar" for the purpose of registering
Registered Securities and transfers of Registered Securities as
herein provided.
(e) With respect to the Securities issuable or issued
in whole or in part in the form of the Rule 144A Global Security,
the Company and the Guarantor hereby appoint DTC, at present
located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, as the
depository for the Rule 144A Global Security upon the terms and
conditions herein set forth. DTC and its successor or successors
as such depository are herein called the "Depository."
3. Registration of Transfer and Exchange; Restrictions on
Transfer.
(a) Upon surrender for registration of transfer of any
Registered Security at any office or agency designated for such
purpose by the Company pursuant to Section 12(g) hereof, the
Company shall execute, and the Fiscal Agent shall authenticate,
register and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of any
authorized denominations and of a like aggregate principal
amount, having endorsed thereon a Guarantee duly executed by the
Guarantor, and bearing such restrictive legends as may be
required by this Agreement; provided, however, that, with respect
to any Registered Security that is a Restricted Security, the
Fiscal Agent shall not register the transfer of such Security
unless the conditions in Sections 3(b) hereof shall have been
satisfied. The holder of each Restricted Security, by such
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holder's acceptance thereof, agrees to be bound by the transfer
restrictions set forth herein and in the legend on such
Restricted Security.
(b) Whenever any Restricted Security is presented or
surrendered for registration of transfer or exchange for a
Registered Security registered in a name other than that of the
holder, no registration of transfer or exchange shall be made
unless:
(i) The registered holder presenting such Restricted
Security for transfer shall have certified to the Fiscal Agent by
checking box (a) of the Transfer Notice attached to such
Restricted Security that such registered holder is transferring
such Restricted Security to a QIB in compliance with the
exemption from registration under the Securities Act provided by
Rule 144A thereunder (or a successor provision);
(ii) The registered holder presenting such Restricted
Security for transfer shall have certified to the Fiscal Agent
that the registered holder is transferring such Restricted
Security outside the United States in a transaction meeting the
requirements of Rule 904 of Regulation S under the Securities Act
by checking box (b) of the Transfer Notice attached to such
Restricted Security;
(iii) (A) The registered holder presenting such
Restricted Security for transfer shall have certified to the
Fiscal Agent that such registered holder is transferring such
Restricted Security to an _institutional accredited investor_
(within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act) in a transaction that is exempt from the
registration requirements of the Securities Act by checking box
(c) of the Transfer Notice attached to such Restricted Security;
and (B) a broker or dealer registered under Section 15 of the
Securities Exchange Act of 1934, as amended, shall have certified
to the Fiscal Agent in writing that: (x) each person who will
become a beneficial owner of the Restricted Security upon
transfer is an institutional _accredited investor_ (as such term
is defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act); (y) no general solicitation or general
advertising was made or used by such broker or dealer in
connection with the offer and sale of such Restricted Security to
such person(s); and (z) such institutional accredited investor
has been informed that the Securities have not been registered
under the Securities Act and are subject to the restrictions on
transfer set forth in the Securities and this Agreement;
(iv) The registered holder presenting such Restricted
Security for transfer shall have certified to the Fiscal Agent
that the registered holder is transferring the Registered
Security to the Company by checking box (d) of the Transfer
Notice attached to such Restricted Security; or
(v) The Fiscal Agent has received transfer
documentation indicating, and a written opinion of U.S. counsel
acceptable in form and substance to the Company and the Fiscal
PAGE
Agent, that the transfer is being made pursuant to an exemption
from, or a transaction not otherwise subject to, the registration
requirements of the Securities Act.
(vi) In the event the Securities are issued as a Rule
144A Global Security with the Depository: (A) the Fiscal Agent
may deal with the Depository as the authorized representative of
the holders; (B) the rights of the holders shall be exercised
only through the Depository and shall be limited to those
established by law and agreement between the holders and the
Depository and/or direct participants of the Depository and (C)
the direct participants of the Depository shall have no rights
under this Agreement under or with respect to any of the
Securities hold on their behalf by the Depository, and the
Depository may be treated by the Fiscal Agent and its agents,
employees, officers and directors as the absolute owner of the
Securities for all purposes whatsoever.
In the case of transfer pursuant to the foregoing clauses
(ii), (iii) or (v) above, the Company and the Fiscal Agent may
require that the registered holder deliver an opinion of counsel,
certifications or other information acceptable to them in form
and substance. The Fiscal Agent shall notify the Company upon
receipt of such Transfer Notice and the Company shall immediately
advise the Fiscal Agent as to whether an opinion of counsel,
certifications or other information as described herein shall be
required for such transfer. In addition, in the case of a
transfer pursuant to the foregoing clause (iii) above, the
transferor shall be required to deliver a letter from the
transferee substantially in the form of Exhibit G hereto.
(c) Bearer Securities may, at the option of the holder
thereof, (with all unmatured coupons appertaining thereto and
matured defaulted coupons appertaining thereto), be exchanged at,
subject to applicable laws and regulations, the offices of the
Principal Paying Agent and, if the Securities are listed on the
Luxembourg Stock Exchange and so long as listed thereon,
Luxembourg or as designated by the Company for such purposes
pursuant to Section 12(g), for an equal aggregate principal
amount of Registered Securities in denominations of $1,000 and
integral multiples thereof without coupons and/or Bearer
Securities of authorized denominations. If such holder is unable
to produce any such unmatured coupon or coupons or matured coupon
or coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such
missing coupon or coupons or the surrender of such missing coupon
or coupons may be waived by the Company and the Guarantor if
there be furnished to them and the Fiscal Agent such security or
indemnity as they may require to save each of them, the Fiscal
Agent, the Paying Agent, any paying agency and any of their
respective officers, directors, employees or agents harmless. If
thereafter the holder of such Security shall surrender to any
paying agency any such missing coupon in respect of which such a
payment shall have been made, such holder shall be entitled to
receive the amount of such payment from the Company; provided,
however, that, except as otherwise provided in the form of Bearer
PAGE
Security set forth in Exhibit A hereto, interest represented by
coupons shall be payable only upon presentation and surrender of
those coupons outside of the United States, its territories and
its possessions. Bearer Securities and coupons are transferable
upon delivery.
Registered Securities may, at the option of the holder
thereof, be exchanged at the office of the Fiscal Agent, or
subject to applicable laws and regulations, the offices of the
Principal Paying Agent and, if the Securities are listed on the
Luxembourg Stock Exchange and so long as listed thereon, a paying
agency in Luxembourg or as designated by the Company for such
purposes pursuant to Section 12(g), for an equal aggregate
principal amount of Registered Securities of different
denominations. Registered Securities shall not be exchangeable
for Bearer Securities. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the
Fiscal Agent shall authenticate and deliver, the Registered
Securities which the holder making the exchange is entitled to
receive, having endorsed thereon a Guarantee duly executed by the
Guarantor. If the holder thereof requests in writing that such
Registered Security be exchanged for an interest in the Rule 144A
Global Security, such Registered Security will be exchangeable
into an equal aggregate principal amount of beneficial interest
in the Rule 144A Global Security; provided, however, that, if
such Registered Security is a Restricted Security, such exchange
may only be made if such holder certifies to the Fiscal Agent in
writing that such holder is a QIB by checking box (a) of the
Transfer Notice on the reverse of such Security. Upon any
exchange as provided in the immediately preceding sentence, the
Fiscal Agent shall cancel such Registered Security and cause, or
direct any custodian for the Rule 144A Global Security to cause,
in accordance with the standing instructions and procedures
existing between the Depository and any such custodian, the
aggregate principal amount of Securities represented by the Rule
144A Global Security to be increased accordingly. If no Rule
144A Global Securities are then outstanding, the Company shall
issue and the Fiscal Agent shall authenticate a new Rule 144A
Global Security in the appropriate principal amount, having
endorsed thereon a Guarantee duly executed by the Guarantor.
Any person having a beneficial interest in a Rule 144A
Global Security may upon request exchange such beneficial
interest for a Registered Security only as provided in this
paragraph. Upon receipt by the Company and the U.S. Agent of (i)
written or electronic instructions from the Depository or its
nominee (or such other form of instructions as is customary) on
behalf of any person having a beneficial interest in a Rule 144A
Global Security and upon receipt by the Fiscal Agent of a written
order of such person containing registration instructions and
(ii) in the case of a Restricted Security, the following
additional information and documents (all of which may be
submitted by facsimile):
(A) if such beneficial interest is being
transferred to the person designated as being the beneficial
owner, a certification to that effect from such person; or
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(B) if such beneficial interest is being
transferred to a person other than the person designated as being
the beneficial owner, the provisions of Section 3(b) hereof have
been satisfied;
in which case the Fiscal Agent or any custodian for the Rule 144A
Global Security, at the direction of the Fiscal Agent, shall, in
accordance with the standing instructions and procedures existing
between the Depository and such custodian, cause the aggregate
principal amount of the Rule 144A Global Security to be reduced
accordingly and, following such reduction, the Company shall
execute and the Fiscal Agent shall authenticate and deliver to
such person or the transferee, as the case may be, a Registered
Security in the appropriate principal amount, having endorsed
thereon a Guarantee duly executed by the Guarantor and, if such
Registered Security is a Restricted Security, including the
appropriate legend. Registered Securities issued in exchange for
a beneficial interest in the Rule 144A Global Security pursuant
to this paragraph shall be registered in such names and such
authorized denominations as shall be instructed to the Fiscal
Agent. The Fiscal Agent shall deliver such Registered Securities
to the persons in whose names such Securities are so registered.
(d) Notwithstanding any other provision of this
Agreement (other than the provisions set forth in Section 3(e)
hereof), the Rule 144A Global Security may not be transferred as
a whole except by the Depository to a nominee of the Depository
or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or any such
nominee to a successor Depository or a nominee of such successor
Depository.
(e) If at any time either (i) the Depository for the
Rule 144A Global Security notifies the Company and the Guarantor
that the Depository is unwilling or unable to continue as
Depository for the Rule 144A Global Security and a successor
Depository for the Rule 144A Global Security is not appointed by
the Company and the Guarantor within 90 days after delivery of
such notice, or (ii) the Company and the Guarantor, at their sole
discretion, notify the Fiscal Agent in writing that the Company
elects to cause the issuance of Registered Securities under this
Agreement, then the Company shall execute, and the Fiscal Agent
shall authenticate and deliver, Registered Securities in an
aggregate principal amount equal to the principal amount of the
Rule 144A Global Security in exchange for such Rule 144A Global
Security.
(f) Each certificate evidencing Restricted Securities
shall bear a legend in substantially the following form:
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED WITHIN THE "UNITED STATES" OR TO
"U.S. PERSONS" (AS DEFINED IN REGULATION S UNDER THE SECURITIES
PAGE
ACT) IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, REPRESENTS, ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF
THE COMPANY THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY
WHICH HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT; (II) IT
WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO
THE DATE WHICH IS TWO YEARS (OR THE THEN APPLICABLE HOLDING
PERIOD UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR SUCCESSOR
PROVISION))AFTER THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR ANY PREDECESSOR),
EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED STATES IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501 (A)(1),(2),
(3) OR (7) UNDER THE SECURITIES ACT OR (F) PURSUANT TO ANOTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE.
ANY OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING
CLAUSES (II)(D), (E) OR (F) IS SUBJECT TO THE RIGHT OF THE ISSUER
OF THIS SECURITY AND THE FISCAL AGENT FOR SUCH ISSUER TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER
INFORMATION ACCEPTABLE TO THEM IN FORM AND SUBSTANCE.
(g) The restrictions imposed by Section 3(b) upon the
transferability of any particular Restricted Security shall cease
and terminate when such Restricted Security has been sold
pursuant to an effective registration statement under the
Securities Act or transferred pursuant to Rule 144 under the
Securities Act (or any successor provision thereto), unless the
holder is an affiliate of the Company within the meaning of said
Rule 144 (or such successor provision). Any Restricted Security
as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon
surrender of such Restricted Security for exchange to the Fiscal
Agent in accordance with the provisions of this Section 3(g)
(accompanied, in the event that such restrictions on transfer
have terminated by reason of a transfer pursuant to Rule 144 (or
any successor provision), by an opinion of counsel reasonably
acceptable to the Company, addressed to the Company and the
Fiscal Agent and in form and scope satisfactory to the Company,
to the effect that the transfer of such Restricted Security has
been made in compliance with Rule 144 (or such successor
provision)), be exchanged for a new Registered Security, of like
PAGE
tenor and aggregate principal amount, which shall not bear the
restrictive legend required by Section 3(f) hereof. The Company
shall promptly inform the Fiscal Agent in writing of the
effective date of any registration statement registering the
Securities under the Securities Act.
(h) The transfer and exchange of the Rule 144A Global
Security or beneficial interests therein shall be effected
through the Depository, in accordance with this Agreement and the
procedures of the Depository therefor, which shall include
restrictions on transfer comparable to those set forth herein to
the extent required by the Securities Act.
(i) At such time as all beneficial interests in the
Rule 144A Global Security have either been exchanged for
Registered Securities, redeemed, repurchased or canceled, the
Rule 144A Global Security shall be returned to or retained and
canceled by the Fiscal Agent. At any time prior to such
cancellation, if any beneficial interest in the Rule 144A Global
Security is exchanged for Registered Securities, redeemed,
repurchased or canceled, the principal amount of Securities
represented by the Rule 144A Global Security shall be reduced
accordingly and an endorsement shall be made on the Rule 144A
Global Security, by the Fiscal Agent or any custodian therefor,
at the direction of the Fiscal Agent, to reflect such reduction.
(j) All Securities issued upon any registration of
transfer or exchange of Securities shall be the valid obligations
of the Company, and the Guarantees endorsed thereon shall be the
valid obligations of the Guarantor, evidencing the same
obligations, and entitled to the same benefits under this
Agreement, as the Securities surrendered upon such registration
of transfer or exchange.
(k) Every Registered Security presented for
registration of transfer or surrendered for exchange shall be
duly endorsed, and shall include the certification referred to in
Section 3(c)(A). The registration of the transfer of a
Registered Security by the Security Registrar shall be deemed to
be the written acknowledgment of such transfer on behalf of the
Company.
(1) No service charge shall be made for any
registration of transfer or exchange (other than the cost of
delivery), but the Company or the Transfer Agent 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 4 hereof or not involving any
registration of transfer.
(m) Neither the Company nor the Fiscal Agent nor any
of the offices or agencies designated for the purposes specified
in Section 12(f) nor any Transfer Agent shall be required (i) to
exchange Bearer Securities for Registered Securities during the
period between the close of business on any Record Date (as
defined in Section 5(c) hereof) and the opening of business on
PAGE
the next succeeding interest payment date, (ii) to exchange any
Bearer Security (or portion thereof) for a Registered Security if
the Company shall determine and inform the Principal Paying Agent
in writing that, as a result thereof, the Company would incur
adverse consequences under the United States Federal income tax
laws at the time of such exchange, or (iii) in the event of a
redemption in part, (A) to register the transfer of Registered
Securities or to exchange any Bearer Securities for Registered
Securities for a period of 15 days immediately preceding the date
notice is given pursuant to Section 3(f) of the Registered
Securities and the Bearer Securities identifying the serial
numbers of any Securities to be redeemed, or (B) to register the
transfer of or exchange of any Registered Security so selected
for redemption in whole or in part, except portions not being
redeemed of Securities being redeemed in part, or (C) to exchange
any Bearer Security called for redemption; provided, however,
that a Bearer Security called for redemption may be exchanged, on
the terms and conditions set forth above, for a Registered
Security that is simultaneously surrendered, with written
instruction for payment on the date fixed for redemption, unless
the redemption date is after a Record Date and on or before the
next succeeding interest payment date, in which case such
exchange may be made only prior to the Record Date immediately
preceding the redemption date.
4. Closing Date; Exchange of Regulation S Global Security.
(a) At any time and from time to time after the
execution and delivery of this Agreement, the Company may deliver
Securities executed by the Company in accordance with this
Agreement bearing the Guarantees of the Guarantor endorsed
thereon to the Fiscal Agent, in the case of Registered
Securities, and to the Principal Paying Agent, in the case of
Bearer Securities or the Regulation S Global Security for
authentication together with an officer's certificate of the
Company directing such authentication, and the Fiscal Agent or
Principal Paying Agent shall thereupon authenticate and make such
Securities available for delivery upon and in accordance with the
written order of the Company. No Security shall be valid or
enforceable for any purpose unless and until the certificate of
authentication thereon shall have been manually signed by a duly
authorized signatory of the Fiscal Agent or Principal Paying
Agent and such duly executed certificate of authentication on any
Security shall be conclusive evidence that the Security has been
duly authenticated and delivered hereunder. The Regulation S
Global Security, the Rule 144A Global Security and the Registered
Accredited Investor Securities will be issued upon payment to the
Company or its order in United States dollars in same-day funds
by check or wire transfer to a United States dollar account
designated by the Company, at 2:00 p.m., London time, on May 14,
1997, or at such other time on the same or such other date, not
later than 5:00 p.m., London time, on the fourth Business Day (as
such term is defined in Section 5(h) hereof) in London
thereafter, as the Managers and the Company may agree (the
"Closing Date"). Such payment will be made (1) upon
authorization from the Managers, (2) against delivery as provided
in Section 4(b) hereof of the amount, if any, of Rule 144A
PAGE
Securities and Registered Accredited Investor Securities as the
Managers may request and as they shall direct, and (3) against
delivery of the Regulation S Global Security for the balance of
the Securities to Bankers Trust Company, London office, as
depositary (the "Common Depositary") for ▇▇▇▇▇▇ Guaranty Trust
Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), and Cedel Bank
societe anonyme ("Cedel"). The Regulation S Global Security
shall be held on deposit with the Common Depositary for the
accounts of the Euroclear Operator and Cedel, for credit to the
Managers' respective Securities Clearance Accounts (or to such
other accounts as the Lead Manager may have specified) with the
Euroclear Operator or Cedel.
(b) On the Closing Date, the Company shall execute and
deliver to (i) the Managers, at the office of an affiliate of the
Lead Manager (as defined in the Subscription Agreement) in New
York, Registered Accredited Investor Securities bearing the
Guarantees of the Guarantor endorsed thereon (which shall have
been duly authenticated by the Fiscal Agent and which may be in
typewritten form) in respect of the Accredited Investor
Securities and (ii) the Depositary or its custodian, at its
office in New York, the Rule 144A Global Security bearing the
Guarantee of the Guarantor endorsed thereon (which shall have
been duly authenticated by the Fiscal Agent and which may be in
typewritten form) in respect of the Rule 144A Securities.
(c) On or before the Exchange Date, the Company will
execute and deliver to the Principal Paying Agent, at its office
in London, or the Paying Agent, at its office in Luxembourg,
definitive Registered Regulation S Securities and Bearer
Securities bearing the Guarantees of the Guarantor endorsed
thereon in the aggregate principal amount outstanding in the
Regulation S Global Security and in such proportion of Registered
Regulation S Securities to Bearer Securities as the Principal
Paying Agent may specify. "Exchange Date" means the date
following the expiration of the 40-day period commencing on the
Closing Date. On or after the Exchange Date, the Regulation S
Global Security may be surrendered to the Principal Paying Agent
to be exchanged, as a whole or in part, for definitive Bearer
Securities without charge, and the Principal Paying Agent, or its
agent, shall authenticate and deliver, in exchange for such
Regulation S Global Security or the portions thereof to be
exchanged, an equal aggregate principal amount of definitive
Bearer Securities, but only upon presentation to the Principal
Paying Agent at its office in London of a certificate of the
Euroclear Operator or Cedel with respect to the Regulation S
Global Security or portions thereof being exchanged,
substantially in the form of Exhibit C hereto, to the effect that
it has received a certificate or certificates in substantially
the form set forth in Exhibit D hereto dated no earlier than 15
days prior to the Exchange Date and signed by the person
appearing in its records as the owner of the Regulation S Global
Security or portions thereof being exchanged. Similarly, on or
after the Exchange Date, portions of the Regulation S Global
Security may be exchanged for an equal aggregate principal amount
of definitive Registered Regulation S Securities upon
PAGE
presentation to the Principal Paying Agent of a certificate
substantially in the form of Exhibit F hereto, to the effect that
it has received a certificate or certificates in substantially
the form set forth in Exhibit E hereto dated no earlier than 15
days prior to the Exchange Date and signed by the person
appearing in its records as the owner of the Regulation S Global
Security or portions thereof being exchanged. In addition, if
permitted by Cedel or Euroclear, as the case may be, on or after
the Exchange Date, (or if permitted by the Company and the Fiscal
Agent, before the Exchange Date), portions of the Regulation S
Global Security may be exchanged for a beneficial interest in an
equal aggregate principal amount of the Rule 144A Global Security
(which portion shall be a Restricted Security) upon
certifications acceptable to the Company and to the Fiscal Agent
to the effect that the person(s) beneficially owning such portion
of the Rule 144A Global Security are QIBs that acquired such
interest in transaction(s) that complied with the exemption from
registration under the Securities Act provided by Rule 144A
thereunder (or a successor provision).
(d) The definitive Securities and coupons shall be
printed, lithographed or engraved or produced by any combination
of these methods or may be produced in any other manner permitted
by the rules of any securities exchange on which the Securities
may be listed, all as determined by the officers executing such
Securities and coupons, as evidenced by such execution.
(e) Only Bearer Securities may be issued upon receipt
by the Euroclear Operator or Cedel of a certificate or
certificates in the form of Exhibit D hereto. Bearer Securities
will be delivered only outside the United States, its territories
and its possessions. Only Registered Securities may be issued
upon receipt by the Euroclear Operator or Cedel of a certificate
or certificates in the form of Exhibit E hereto.
(f) The delivery to the Principal Paying Agent by the
Euroclear Operator or Cedel of any certificate referred to above
may be relied upon by the Company and the Principal Paying Agent
as conclusive evidence that a corresponding certificate or
certificates has or have been delivered to the Euroclear Operator
or Cedel pursuant to the terms of this Agreement. The Principal
Paying Agent shall receive such certificate on behalf of the
Company and shall promptly deliver the original certificate to
the Company, retaining a copy of such certificate for its
records.
(g) Upon any such exchange of a portion of the
Regulation S Global Security for a definitive Bearer Security or
Securities or a definitive Registered Regulation S Security or
Securities or a beneficial interest in the Rule 144A Global
Security or an Accredited Investor Security or Securities, the
Regulation S Global Security shall be endorsed by the Principal
Paying Agent to reflect the reduction of its principal amount by
an amount equal to the aggregate principal amount of such
definitive Security or Securities. Until so exchanged in full,
the Regulation S Global Security shall in all respects be
PAGE
entitled to the same benefits under this Agreement as definitive
Securities authenticated and delivered hereunder.
5. Payment.
(a) The Company will pay, or cause to be paid, to the
Paying Agent, at its office in New York, the amounts, at the
times and for the purposes, set forth herein and in the text of
the Securities, and the Company hereby authorizes and directs the
Paying Agent to make payment, or to cause payment to be made, at
the Agencies set forth in Section 12(f), of the principal of,
premium, if any, and interest on and Additional Amounts (as
defined in Section 2 of the Registered Securities and the Bearer
Securities), if any, on the Securities from such payments.
(b) At least 15 days prior to the date on which any
payment of Additional Amounts shall be required to be made
pursuant to Section 2 of the Registered Securities and the Bearer
Securities, the Company will furnish the Paying Agent, at its
office in New York, each other paying agency of the Company, the
Fiscal Agent and the Principal Paying Agent with a certificate of
one of its duly authorized officers instructing the Paying Agent
and each other paying agency of the Company as to the amounts
required (i) to be deducted or withheld for or on account of any
taxes described in Section 2 of the Registered Securities and the
Bearer Securities from a payment to be made on that date and (ii)
to be paid to each holder of Securities or coupons as Additional
Amounts pursuant to that Section. If the foregoing amounts are
not uniform for all holders, then the Company's certificate shall
specify by country of residence or other factor the amounts
required to be deducted or withheld and to be paid as Additional
Amounts for each holder or class of holders of the Securities or
coupons. In the absence of its receipt of any such certificate
from the Company, the Paying Agent may make payment without
deduction or withholding. The Company and the Guarantor hereby
agree to indemnify the Paying Agent, each other paying agency of
the Company and the Fiscal Agent and their respective officers,
directors, employees and agents, for, and to hold them harmless
against, any loss, liability or expense reasonably incurred
without gross negligence or bad faith on their part, arising out
of or in connection with actions taken or omitted by any of them
in reliance on any certificate furnished pursuant to this
Section.
(c) Interest on any Registered Security that 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 is registered at the close of business on the
October 31 or April 30 immediately preceding such interest
payment date (each a "Record Date"), even if such Registered
Security is canceled, upon redemption, conversion or otherwise,
after such Record Date. In case a Bearer Security is surrendered
for exchange for a Registered Security after the close of
business on any Record Date and before the opening of business on
the next succeeding interest payment date, the Fiscal Agent shall
not be required to perform such transfer or exchange of such
Security.
PAGE
(d) Interest on any Registered Security that is
payable upon conversion in accordance with Section 7(a) hereof
shall be paid to the person in whose name that Security is
registered immediately prior to the conversion, provided that if
a Registered Security is converted after the close of business on
a Record Date and before the opening of business on the next
succeeding interest payment date, accrued interest shall be paid
on the next succeeding interest payment date to the person in
whose name that Security is registered at the close of business
on that Record Date.
(e) Any interest on any Registered Security that is
payable, but is not punctually paid or duly provided for, on any
interest payment date shall forthwith cease to be payable to the
registered holder thereof on the relevant regular record date by
virtue of having been such holder, and such defaulted interest
may be paid by the Company to the registered holder of such
registered Security on a subsequent record date established by
the Company in any lawful manner if, after notice given by the
Company to the Principal Paying Agent of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Principal Paying Agent.
(f) Subject to the foregoing provisions of this
Section 5, each Security delivered under this Agreement upon
registration of transfer of or in exchange for or in lieu of any
other Security shall carry all the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Security.
(g) In order to provide for the payment of the
principal of, premium, if any, and interest on the Securities as
the same shall become due and payable, the Company shall pay to
the Paying Agent at its office in New York, in such coin or
currency of the United States of America as at the time of
payment is legal tender for the payment of public and private
debts therein, and in same day funds, the following amounts (and
the Company shall give notice to the Principal Paying Agent at
least two full Business Days prior to the date payment is due to
the Paying Agent as to the means of such payment), to be held and
applied by the Paying Agent as hereinafter set forth:
(i) The Company shall pay to the Paying Agent, at its
office in New York, on the Business Day immediately prior to each
interest payment date in same day funds an amount sufficient to
pay the interest due (and Additional Amounts, if any) on all the
Securities outstanding on such interest payment date and the
Paying Agent shall apply the amounts paid to it to the payment of
such interest (and Additional Amounts, if any) on such interest
payment date.
(ii) Upon presentment for conversion of any Securities
pursuant to Section 7(a) hereof (except as described in the
proviso to Section 5(d)), the Paying Agent shall promptly notify
the Company of the amount of any accrued interest due and owing
thereon. Within four Business Days of such notification, the
Company shall pay to the Paying Agent, at its office in New York,
PAGE
an amount sufficient to pay the accrued interest due on such
Securities (and Additional Amounts, if any, thereon), and the
Paying Agent shall apply the amounts so paid to it to the payment
of such accrued interest (and Additional Amounts, if any,
thereon) in accordance with the terms of the Securities.
(iii) If the Company shall elect, or shall be
required, to redeem the Securities in accordance with Section 6
hereof, the Company will pay to the Paying Agent, at its office
in New York, not later than 10:00 a.m. New York time on the date
fixed for redemption thereof in same day funds an amount
sufficient (with any amount then held by the Paying Agent and
available for the purpose) to pay the redemption price of the
Securities called for redemption on the redemption date or
entitled to be redeemed, together with accrued interest thereon
(and Additional Amounts, if any, thereon) to the date fixed for
redemption and not paid pursuant to clause (g)(i) of this Section
5, and the Paying Agent shall apply such amount to the payment of
the redemption price and accrued interest thereon (and Additional
Amounts, if any, thereon) in accordance with the terms of the
Securities.
(iv) Not later than 10:00 a.m. New York time on the
maturity date of the Securities, the Company shall pay to the
Paying Agent, at its office in New York, in same day funds an
amount which, together with any amounts then held by the Paying
Agent, and available for payment thereof, shall be equal to the
entire amount of principal and interest (and Additional Amounts,
if any) to be due on such maturity date on all the Securities
then outstanding, and the Paying Agent shall apply such amount to
each payment of the principal of and interest on (and Additional
Amounts, if any, on) the Securities in accordance with the terms
of the Securities.
(h) Notwithstanding anything in this Section to the
contrary, if any payment of interest or premium or principal (or
Additional Amounts, if any) is due on a day that is not a
Business Day, payment shall be made on the next succeeding
Business Day, with the same effect as if made on the day such
payment was due, and no interest shall accrue for the period
after such date. A _Business Day_ is defined, with respect to
any act to be performed pursuant hereto or to the Securities, as
any day which is not (i) a Saturday, Sunday, or (ii) a day on
which banking institutions in (x) the place where such act is to
occur and (y) New York are authorized or obligated by applicable
law, regulation or executive order to close.
6. Redemption.
(a) If, under the circumstances described in Section 3
of the Registered Securities and Bearer Securities, the Company
shall elect or be required to redeem outstanding Securities, the
following provisions shall be applicable:
(i) The Company shall, at least 45 days in the case of
a redemption in whole or 75 days in the case of a redemption in
part (or such shorter period as shall be reasonably acceptable to
PAGE
the Fiscal Agent) before the date designated for such redemption,
give written notice to the Agents of its election to redeem the
Securities on the redemption date specified in such notice and
state in such notice that the conditions precedent to such
redemption have occurred and describe them, and in case of
redemptions pursuant to Section 3(b) of the Registered Securities
and the Bearer Securities, shall provide to the Fiscal Agent an
opinion of counsel satisfactory to the Fiscal Agent stating that
the legal conditions precedent to the right of the Company to
effect such redemption have occurred, and shall request the
Fiscal Agent to arrange for publication and mailing of the notice
specified in clause (a) (ii) below.
(ii) In case the Company shall give notice to the
Fiscal Agent of its election to redeem the Securities, the Fiscal
Agent shall cause to be published on behalf of and at the expense
of the Company a notice of redemption in accordance with the
provisions of Section 3 of the Registered Securities and Bearer
Securities and shall mail by first-class mail a copy of the
notice to each holder of a Registered Security at the address of
such holder as it shall appear in the Security Register. The
Fiscal Agent shall send a copy of such notice of redemption to
the Company, the Guarantor, the Paying Agent (if different from
the Fiscal Agent) and each other paying agency of the Company.
(iii) Such notice shall be published on behalf and
at the expense of the Company in an Authorized Newspaper (as
defined in Section 19 hereof) on a Business Day in New York City
and in London and, if the Securities are listed on the Luxembourg
Stock Exchange and so long as listed thereon, in an Authorized
Newspaper in Luxembourg, or, if publication in either London or
Luxembourg is not practical, in an Authorized Newspaper in any
country in Western Europe, as set forth in Section 19 of this
Agreement and Section 3 of the Registered Securities and Bearer
Securities. In the case of a redemption in whole, notice will be
given once not more than 60 nor less than 30 days prior to the
date fixed for redemption. In the case of partial redemption,
notice will be given twice, the first such notice to be given not
more than 75 nor less than 60 days prior to the date fixed for
redemption and the second such notice to be given not more than
60 and not less than 30 days prior to the date fixed for
redemption. The Fiscal Agent shall notify the Company promptly
of the portions of outstanding Securities to be called for
redemption as determined pursuant to Section 3(a) of the
Registered Securities and Bearer Securities.
(b) Under the circumstances described in Section 3(d)
of the Registered Securities and Bearer Securities concerning the
redemption of outstanding Securities at the option of the holders
thereof, the following provisions shall be applicable:
(i) The Company shall give notice to the Fiscal Agent
of the occurrence of a Redemption Event (as defined below)
immediately upon the occurrence of such Redemption Event. For
purposes hereof a _Redemption Event_ shall have occurred if the
Company's Common Stock (or other equity securities into which the
Securities are then convertible) is neither listed for trading on
PAGE
a United States national securities exchange nor approved for
trading on an established automated over-the-counter trading
market in the United States. Such notice shall state:
(A) The nature of the Redemption Event;
(B) The Holder Redemption Date (as defined in
Section 3(d) of the Registered Securities and Bearer Securities)
in respect of such Redemption Event; and
(C) The redemption price as set forth in Section
3(d) of the Registered Securities and Bearer Securities.
(ii) The Fiscal Agent shall cause to be published on
behalf of the Company a notice of entitlement to redeem in
accordance with the provisions of Section 3 of the Registered
Securities and Bearer Securities and shall mail by first-class
mail a copy of such notice to each holder of a Registered
Security at the address of such holder as it shall appear in the
Security Register. The Fiscal Agent shall send a copy of such
notice of entitlement to redeem to the Company, the Guarantor,
the Paying Agent (if different from the Fiscal Agent) and each
other paying agency of the Company hereunder. Such notice shall
be published on behalf and at the expense of the Company in
Authorized Newspapers on a Business Day in New York City and in
London and, if the Securities are listed on the Luxembourg Stock
Exchange and so long as listed thereon, in an Authorized
Newspaper in Luxembourg, or, if either publication in London or
Luxembourg is not practical, in an Authorized Newspaper in any
country in Western Europe, as set forth in Section 19 of this
Agreement. Notice shall be given not later than 10 days after
the later of the Exchange Date or the date of the occurrence of a
Redemption Event.
(iii) Upon the deposit of any of the Registered
Securities or Bearer Securities with the agency designated by the
Company as the place for payment of the Registered Securities and
Bearer Securities together with a duly signed and completed
redemption notice in the form set forth on the reverse of the
Bearer Securities and Registered Securities, all in accordance
with the provisions of Section 3 of the Registered Securities and
Bearer Securities, the holder of such Registered Security and
Bearer Security shall be entitled to receive a non-transferable
receipt evidencing such deposit.
(iv) The Fiscal Agent shall notify the Company on each
Business Day in the five Business Days prior to the Holder
Redemption Date for outstanding Securities to be redeemed under
this Section 6(b) of the amount required to redeem such
Securities.
7. Conversion of Securities.
(a) Subject to and upon compliance with the provisions
of this Section 7, at the option of the holder thereof, any
outstanding Registered Security or Bearer Security or, in the
case of any outstanding Registered Security or Bearer Security of
PAGE
a denomination other than $1,000, any portion of the principal
amount thereof which is $1,000 or an integral multiple of $1,000,
may be converted into shares of the Company's common stock, par
value $.10 per share ("Common Stock"), issuable upon conversion
of the Securities, at the principal amount thereof, or of such
portion thereof, into fully paid and nonassessable shares of
Common Stock ("Conversion Shares") as set forth in the Registered
Securities and Bearer Securities. Such Registered Securities or
Bearer Securities may be converted on or after the date which is
the later of: (i) the Exchange Date, and (ii) the date of the
effectiveness of the Registration Statement to be filed by the
Company under the Securities Act relating to the Common Stock
issuable upon conversion of the Restricted Securities (the
"Registration Date"), and in any event prior to redemption or
maturity. The right to convert Securities called for redemption
will terminate at the close of business on the fifteenth day next
preceding the date fixed for redemption (or if such date is not a
Business Day, then the next succeeding Business Day), and will be
lost if not exercised prior to that time. No payment or
adjustment shall be made upon any conversion on account of any
dividends on the Common Stock issued upon conversion. Accrued
interest from the immediately preceding interest payment date
until the conversion date (and Additional Amounts, if any,
thereon) will be paid to the holder, through the Paying Agent, in
the same manner as payments of interest, within five Business
Days after the conversion date, provided that if a Registered
Security is converted after the close of business on a Record
Date and before the opening of business on the next succeeding
interest payment date, accrued interest shall be paid on the next
succeeding interest payment date to the person in whose name that
Security is registered at the close of business on that Record
Date. The price at which Conversion Shares shall be delivered
upon conversion (herein called the "Conversion Price") shall be
initially U.S. $31.415 per share of Common Stock. The Conversion
Price shall be adjusted in certain instances as provided in
paragraphs (c)(i), (ii), (iii), (iv), (vi) and (vii) of Section 4
of the Registered Securities and Bearer Securities.
In lieu of issuing shares of Common Stock upon such
conversion of the Securities, the Company may elect, in its sole
discretion, to pay cash in respect of all or a portion of the
shares of Common Stock otherwise issuable upon such conversion.
The amount of cash to be so delivered shall be equal to the
number of shares of Common Stock as to which cash is being paid
in lieu of issuance of shares of Common Stock multiplied by the
Market Price of a share of Common Stock, subject to appropriate
adjustment in the event the Conversion Price is adjusted as
provided in the Definitive Securities. The Company shall inform
each Conversion Agent and Paying Agent of the Market Price.
_Market Price_ means the Weighted Average Price of the
Common Stock on the last Stock Trading Day preceding the
applicable conversion date, appropriately adjusted to reflect
events giving rise to an adjustment to the Conversion Price as
provided in the Definitive Securities.
PAGE
_Stock Trading Day_ means each day on which the securities
exchange or quotation system which is used to determine the
Weighted Average Price is open for trading or quotation and on
which at least one trade of the Common Stock has occurred.
_Weighted Average Price_ of a share of Common Stock on any
Stock Trading Day means the weighted average per share sale price
for all sales of shares of Common Stock on such Stock Trading Day
(or, if the information necessary to calculate such weighted
average per share sale price is not available, the average of the
high and low sale prices or, if no sales prices are reported, the
average of the bid and asked prices or, if more than one in
either case, the average of the average bid and average asked
prices) as reported in the composite transactions for the
American Stock Exchange, or if the Common Stock is not listed or
admitted to trading on a United States national or regional
securities exchange, as reported by the National Association of
Securities Dealers Inc. Automated Quotation System or by the
National Quotation Bureau Incorporated; provided that, in the
absence of such quotations, the Company shall be entitled to
determine the Weighted Average Price on the basis of such
quotations as it considers appropriate.
(b) In order to exercise the conversion privilege, the
holder of any Security to be converted shall surrender such
Security, or, if less than the entire principal amount of a
Registered Security or Bearer Security of a denomination other
than $1,000 is to be converted, the portion thereof to be
converted, together with all unmatured coupons and any matured
coupons in default appertaining thereto, at any applicable office
or agency of the Company maintained for that purpose pursuant to
Section 12(f) hereof, accompanied by a duly signed and completed
Conversion Notice, in substantially the form set forth in the
Registered Securities and Bearer Securities, to the Company, at
such office or agency that the holder elects to convert such
Security (or specified portion thereof).
Upon presentment for conversion of any Securities pursuant
to this Section, the Principal Conversion Agent shall immediately
that day notify the Company of such presentment. Within two
business days (as defined in the Securities) after the conversion
date, the Company shall deliver to the Paying Agent written
notice of whether such Debenture shall be converted into shares
of Common Stock or cash or a combination of shares of Common
Stock and cash (specifying the amounts of each) (the "Company
Conversion Notice"). The Company shall deliver to such holder no
later than the fifth business day following the conversion date,
through the Paying Agent, in respect of the portion of the
converted security to be settled in cash, and as promptly as
practicable on or following the conversion date in respect of the
portion of the Converted Security as to which shares of Common
Stock are to be issued, the amount of cash and certificates
representing the number of shares of Common Stock to be
delivered, and cash in lieu of any fractional shares. No payment
or adjustment shall be made upon any conversion on account of any
dividends on the Common Stock issued upon conversion. Accrued
interest from the immediately preceding interest payment date
PAGE
until the conversion date (and Additional Amounts, if any,
thereon) will be paid to the holder, through the Paying Agent, in
the same manner as payments of interest, within five business
days (as defined in the Securities) after the conversion date,
provided that if a Registered Security is converted after the
close of business on a Record Date and before the opening of
business on the next succeeding interest payment date, accrued
interest shall be paid on the next succeeding interest payment
date to the person in whose name that security is registered at
the close of business on that Record Date.
(c) 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
cause to be issued or delivered at such office or agency a
certificate or certificates for the number of full shares of
Common Stock issuable or deliverable upon conversion, together
with payment, in lieu of any fraction of a share, as provided
below. The Paying Agent shall, within five Business Days after
the conversion date, make a payment, or cause payment to be made,
at the Agencies set forth in Section 12(f), for the accrued
interest thereon (and Additional Amounts, if any, thereon),
except as otherwise provided in this Section 7.
In the event that payment by the Company of cash in lieu of
issuing shares of Common Stock upon conversion of a Security
shall require any withholding for or on account of any present or
future tax, assessment or other governmental charge imposed upon
or as a result of such cash payment by the United States or any
political subdivision or taxing authority thereof or therein,
then the Company will be required to pay Additional Amounts with
respect thereto in the same manner and to the same extent as is
provided for in Section 2 of the Definitive Securities.
In the event that payment by the Company of cash in lieu of
issuing shares of Common stock upon conversion of a Security
shall require any certification, identification or information
reporting requirement of United States law or regulation with
regard to the nationality, residence or identity of a beneficial
owner of a Bearer Security who is a United States Alien (as
defined in Section 2 hereof) (other than a requirement (a) which
would not be applicable to a payment made (i) directly to the
beneficial owner or (ii) to a custodian, nominee or other agent
of the beneficial owner, or (b) which could be satisfied by the
holder, custodian, nominee or other agent certifying that the
beneficial owner is a United States Alien, provided, however, in
each case referred to in clauses (a) (ii) and (b) payment by such
custodian, nominee or agent to the beneficial owner is not
otherwise subject to any requirement referred to in this
sentence), the Company may not elect to make the cash payment
unless such certification, identification or information
PAGE
reporting requirement would be fully satisfied by payment of
United States withholding, backup withholding or similar taxes
and the Company pays such Additional Amounts (without regard to
Section 2 hereof) as are necessary in order that, following the
effective date of such requirement, every net payment made
outside the United States by the Company or a related paying
agent of the cash payment on a Bearer Security to a holder who is
a United States Alien (without regard to a certification,
identification or information reporting requirement as to the
nationality, residence or identity of such holder), after
deduction for United States withholding, backup withholding or
similar taxes (other than withholding, backup withholding or
similar taxes (i) which would not be applicable in the
circumstances referred to in the parenthetical clauses above or
(ii) are imposed as a result of presentation of such Bearer
Security for payment more than 10 days after the date on which
such payment becomes due and payable or on which payment thereof
is duly provided for, whichever is later), will not be less than
the amount provided in the Bearer Security to be then due and
payable.
(d) In the case of any Registered Security or Bearer
Security of a denomination other than $1,000 which is converted
in part only, upon such conversion the Company shall execute and
the Fiscal Agent shall authenticate and deliver to the holder
thereof, at the expense of the Company, a new Security or
Securities of any authorized kind or denomination as requested by
such holder, in aggregate principal amount equal to the
unconverted portion of the principal amount of such Security,
having endorsed thereon a Guarantee duly executed by the
Guarantor.
(e) No fractional shares of Common Stock shall be
issued or delivered upon conversion of Securities. If more than
one Security shall be surrendered for conversion at one time by
the same holder, the number of full shares of Common Stock which
shall be issuable or deliverable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the
Securities (or, in the case of Registered Securities or Bearer
Securities of a denomination other than $1,000, specified
portions thereof) so surrendered. Instead of any fractional
share of Common Stock which would otherwise be issuable or
deliverable upon conversion of any Security or Securities (or, in
the case of Registered Securities or Bearer Securities of a
denomination other than $1,000, specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction
in an amount equal to the same fraction of the Closing Price (as
defined in Section 4(c)(v) of the Registered Securities and
Bearer Securities) for a share of Common Stock at the close of
business on the day preceding the day of conversion.
(f) Whenever the Conversion Price is adjusted as
provided in the Registered Securities and Bearer Securities:
(i) the Company shall compute the adjusted
Conversion Price in accordance with the terms of the Registered
Securities and Bearer Securities and shall prepare a certificate
PAGE
signed by the President, any Vice President or the Treasurer of
the Company setting forth the adjusted Conversion Price and
showing in reasonable detail the facts upon which such adjustment
is based, and such certificate shall forthwith be filed with the
Principal Conversion Agent and at each office or agency
maintained for the purpose of conversion of Securities pursuant
to Section 12(f) hereof; and
(ii) a notice stating that the Conversion Price
has been adjusted and setting forth the adjusted Conversion Price
shall forthwith be prepared, and, as soon as practicable after it
is prepared, the Company shall promptly cause a notice setting
forth the adjusted Conversion Price to be given to the holders of
the Securities. Such notice shall be published on behalf and at
the expense of the Company in Authorized Newspapers on a Business
Day in New York City and in London and, if the Securities are
listed on the Luxembourg Stock Exchange and so long as listed
thereon, in an Authorized Newspaper in Luxembourg, or, if
publication in either London or Luxembourg is not practical, in
an Authorized Newspaper in any country in Western Europe, as set
forth in Section 19 of this Agreement and Section 4 of the
Registered Securities and Bearer Securities.
(g) In case:
(i) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than in
cash out of its retained earnings (excluding dividends payable in
stock for which adjustment is made pursuant to the terms of the
Registered Securities and Bearer Securities); or
(ii) the Company shall authorize the granting to
the holders of its Common Stock of rights or warrants to
subscribe for or purchase any shares of capital stock of any
class or of any other rights; or
(iii) of any reclassification of the Common
Stock of the Company (other than a subdivision or combination of
its outstanding shares of Common Stock), or of any consolidation
with, or merger of the Company into, any other corporation, or of
any merger of another corporation 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 of any sale or transfer of all or substantially
all of the assets of the Company (which shall not include the
sale or transfer, in one or more transactions, of any portion of
the assets of the Company to any corporation or corporations if
each of such corporations immediately following such transfer is
at least 51% owned, directly or indirectly, by the Company,
provided that such sale or transfer does not result in the
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company); or
(iv) of the involuntary dissolution, liquidation
or winding up of the Company; or
PAGE
(v) the Company shall take any other action which
would require an adjustment of the Conversion Price pursuant to
the Registered Securities and Bearer Securities;
then the Company shall cause to be filed with the Principal
Conversion Agent and at each office or agency maintained for the
purpose of conversion of Securities a notice setting forth the
adjusted Conversion Price and shall cause notice to be given as
provided in Section 19 except that notice need be given once at
least 20 days (or 10 days in any case specified in clause (i) or
(iii) above) prior to the applicable record date hereinafter
specified, stating (x) the date on which a record is to be taken
for the purpose of such dividend, distribution, rights or
warrants or, if a record is not to be taken, the date as of which
the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants is to be determined,
or (y) the date on which a reclassification, consolidation,
merger, sale, transfer, 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 the securities, cash
or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation
or winding up. The failure to give notice required by this
Section or any defect therein shall not affect the legality or
validity of any dividend, distribution, rights, warrants,
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up, or the vote on any such
action.
(h) The Company shall, at all times, have reserved and
available, free from preemptive rights, out of its authorized but
unissued shares of Common Stock, for the purpose of effecting the
conversion of Securities, the full number of Conversion Shares
then issuable upon the conversion of all Securities (based on the
aggregate principal amount of Securities outstanding).
(i) The Company shall file, as soon as practicable
following the Closing Date, a shelf registration statement with
the United States Securities and Exchange Commission covering the
resale of shares of Common Stock issuable upon conversion of the
Securities (_Registrable Securities_); provided that any holder
of any Securities shall not sell any shares pursuant to such
registration statement unless and until it provides to the
Company such information as the Company may reasonably request
for use in connection with the identification of such holder as a
selling stockholder in such registration statement, or any
prospectus included therein, and no such sale shall be made by
such holder pursuant to such registration statement unless and
until such information is included by the Company in such
registration statement or prospectus. The Company shall in good
faith use its best efforts and at its cost to cause such
registration statement to be declared effective as promptly as
practicable thereafter and to include in such registration
statement the information provided by a holder as a selling
stockholder and shall notify the Fiscal Agent of the
effectiveness thereof and agrees to use its best efforts to (i)
PAGE
cause all registrations with, and to obtain any approvals by, any
governmental authority under any Federal or state law of the
United States that may be required in connection with the
conversion of the Securities into Common Stock and the resale
thereof, (ii) maintain the effectiveness of such registrations
until the earlier of the date that Rule 144(k) under the
Securities Act (or successor provision) is available for the
resale of the shares of Common Stock issuable upon conversion of
the Restricted Securities (or other securities issuable upon
conversion of the Securities) and (iii) to list the shares of
Common Stock required to be issued or delivered upon conversion
of Securities (or other securities issuable upon conversion of
the Securities) prior to such issue or delivery on such national
securities exchange or automated over-the-counter trading market
where such Common Stock is listed or traded at the time of such
delivery. The Company and the Guarantor, jointly and severally,
shall, without limitation as to time, indemnify and hold
harmless, to the fullest extent permitted by law, each holder of
Registrable Securities, the officers, directors and agents and
employees of each of them, each person who controls such holder
(within the meaning of Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended)
and the officers, directors, agents and employees of any such
controlling person, from and against all losses, claims, damages,
liabilities, costs (including, without limitation, the costs of
preparation and attorneys' fees) and expenses (collectively,
"Losses"), as incurred, arising out of or based upon any untrue
or alleged untrue statement of a material fact contained in any
such registration statement, or related prospectus or in any
amendment or supplement thereto, or arising out of or based upon
any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are based
solely upon information, if any, furnished in writing to the
Company by such holder expressly for use therein; provided, that
the Company shall not be liable to any holder of Registrable
Securities to the extent that any such Losses arise out of or are
based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any preliminary prospectus
if either (A)(i) such holder failed to send or deliver a copy of
the final prospectus with or prior to the delivery of written
confirmation of the sale by such holder of a Registrable Security
to the person asserting the claim from which such Losses arise
and (ii) the prospectus would have completely corrected such
untrue statement or alleged untrue statement or such omission or
alleged omission; or (B)(i) such untrue statement or alleged
untrue statement, omission or alleged omission is completely
corrected in an amendment or supplement to the prospectus and
(ii) having previously been furnished by or on behalf of the
Company with copies of the prospectus as so amended or
supplemented, such holder thereafter fails to deliver such
prospectus as so amended or supplemented, prior to or
concurrently with the sale of a Registrable Security to the
person asserting the claim from which such Losses arise.
Promptly after receipt by an indemnified party under this
Paragraph (i) of notice of any claim or the commencement of any
action, the indemnified party shall, if a claim in respect
PAGE
thereof is to be made against the Company or the Guarantor under
this Paragraph (i) notify the Company and the Guarantor in
writing of the claim or the commencement of that action;
provided, however, that the failure to notify the Company or the
Guarantor shall not relieve it from any liability which it may
have to an indemnified party otherwise than under this Paragraph
(i). If any such claim or action shall be brought against an
indemnified party, the Company and the Guarantor shall be
entitled to participate therein and, to the extent that they
wish, to assume the defense thereof. After notice from the
Company or the Guarantor to the indemnified party of its election
to assume the defense of such claim or action, neither the
Company nor the Guarantor shall be liable to the indemnified
party under this Paragraph (i) for any legal or other expenses
subsequently incurred by the indemnified party in connection with
the defense thereof; provided, however, if the defendants in any
such action include both an indemnified party and the Company or
the Guarantor and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and
for other indemnified parties that are different from or
additional to those available to the Company or the Guarantor,
the indemnified party or parties under this Paragraph (i) shall
have the right to employ not more than one counsel to represent
them and, in that event, the reasonable fees and expenses of not
more than one such separate counsel shall be paid by the Company
or the Guarantor. Neither the Company nor the Guarantor shall be
liable for any settlement effected without its written consent of
any claim or action.
(j) The Company covenants that all shares of Common
Stock which may be issued or delivered upon conversion of
Securities (or other securities issuable upon conversion of the
Securities) will upon issuance be fully paid and nonassessable
and, except as provided in Section 13 hereof, the Company will
pay all stamp, excise or similar taxes or duties, liens and
charges with respect to the issue thereof.
(k) The Fiscal Agent shall cause the converted
securities to be cancelled and destroyed in accordance with its
policy for disposal of canceled securities or as otherwise
directed by the Company. Converted Securities shall not be
transferred. The Principal Conversion Agent shall give the
Company prompt notice of all Securities which have been
converted, and if the Fiscal Agent is not also the Principal
Conversion Agent, the Company will promptly give, or cause to be
given, written notice to the Fiscal Agent of the serial numbers
of all Securities which have been converted.
(1) In case of any consolidation with, or merger of
the Company into, any other corporation, or in case of any merger
of another corporation 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 in case of any sale or transfer, in one or more
transactions, of all or substantially all of the assets of the
Company (which shall not include the sale or transfer of any
portion of the assets of the Company to any corporation or
PAGE
corporations if each of such corporations immediately following
such transfer is at least 51% owned, directly or indirectly, by
the Company, provided that such sale or transfer does not result
in the reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company), the
corporation 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 Fiscal Agent an amendment to the
Fiscal Agency Agreement providing that the holder of each
Registered Security and Bearer Security shall have the right
during the period such Security shall be convertible as specified
in the Registered Securities and Bearer Securities to convert
such Security only into the kind and amount of securities, cash
and other property receivable upon such consolidation, merger,
sale or transfer 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, sale
or transfer, assuming, if such consolidation, merger, sale or
transfer is prior to the period such Security shall be
convertible as specified in the Registered Securities and Bearer
Securities, that the Securities were convertible at such time at
the initial Conversion Price as adjusted pursuant to the terms of
the Registered Securities and Bearer Securities. Such amendment
shall provide for adjustments which, for events subsequent to the
effective date of such amendment, shall be as nearly equivalent
as may be practicable to the adjustments provided for in the
Registered Securities and the Bearer Securities. The above
provisions of this Section shall similarly apply to successive
consolidations, mergers, sales or transfers.
(m) Subject to Section 11(j) hereof, neither the
Fiscal Agent nor the Conversion Agent or conversion agency
appointed by the Company shall 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 Price, or with respect to the nature or extent of any
such adjustment when made, or with respect to the method
employed, or herein or in the Registered Securities and Bearer
Securities provided to be employed, in making the same. Neither
the Fiscal Agent nor the Conversion Agent or conversion agency
appointed by the Company shall be accountable with respect to the
validity or value (or the kind or amount) of any shares of Common
Stock or of any securities or property which may at any time be
issued or delivered upon the conversion of any Security; and
neither the Fiscal Agent nor the Conversion Agent or conversion
agency appointed by the Company makes any representation with
respect thereto. Neither the Fiscal Agent nor the Conversion
Agent or conversion agency appointed by the Company shall be
responsible for any acts or omissions of the Company including
without limitation any failure of the Company to issue, transfer
or deliver any certificates representing shares of Common Stock
or other securities or property or to make any cash payment upon
the delivery of any Security for the purpose of conversion or to
comply with any of the covenants contained in this Section 7.
(n) Any Common Stock issued upon conversion of a
Restricted Security ("Restricted Common Stock") at any time prior
PAGE
to the date which is two years (or the then applicable holding
period under Rule 144(k) under the Securities Act (or successor
provision)) after the date of original issuance of such
Restricted Security and the last date on which the Company or any
affiliate of the Company was the owner thereof (or any
predecessor), and when a registration statement in respect of
such Common Stock is not effective under the Securities Act,
shall be subject to the restrictions on transfer set forth in
Section 3 hereof to the same extent as such Restricted Securities
which were so converted. All shares of Restricted Common Stock
shall bear the legend and transfer requirements set forth in
Section 3(f) hereof, with such modifications thereto as the
Company shall deem appropriate.
8. Surrendered Securities.
All Securities, together with any coupons appertaining
thereto, surrendered for payment, redemption, retirement,
transfer or exchange and all coupons paid through the application
of interest installments and all Securities purchased by the
Company or any subsidiary shall be delivered to the Fiscal Agent
in the case of Registered Securities, and to the Principal Paying
Agent in the case of Bearer Securities and the Regulation S
Global Security. In any such case such Principal Paying Agent
shall cancel all Securities and coupons not previously canceled
and destroy all such Securities and coupons so delivered and
shall furnish to the Company and the Guarantor a certificate with
respect to such destruction. Such certificate shall state, in
the case of destruction of the Regulation S Global Security, that
all certificates of the Euroclear Operator or Cedel as to
beneficial ownership required by Section 4 hereof have been duly
presented by the Euroclear Operator or Cedel.
9. Mutilated, Destroyed, Stolen or Lost Securities.
The Fiscal Agent in the case of Registered Securities, and
to the Principal Paying Agent, in the case of Bearer Securities
and the Regulation S Global Security is hereby authorized, in
accordance with the provisions of the Securities and this
Section, from time to time to authenticate and deliver Securities
in exchange for or in lieu of Securities that become mutilated,
destroyed, stolen or lost, upon receipt of indemnity and such
other documents or proof as may be required in form and substance
satisfactory to the Principal Paying Agent and Fiscal Agent, the
Company and the Guarantor. Every Security authenticated and
delivered in exchange for or in lieu of any such Security shall
have endorsed thereon a Guarantee and shall be considered
obligations of the Company and the Guarantor and shall carry all
rights to interest accrued and unpaid and to accrue which were
carried by such Security, and notwithstanding anything to the
contrary herein contained, any new Bearer Security shall have
attached thereto such coupons that neither gain nor loss in
interest shall result from such exchange or substitution.
10. Signatures.
PAGE
(a) Securities shall be executed on behalf of the
Company by its President, its Secretary, any Vice President or
its Treasurer, any of whose signatures may be manual or in
facsimile, and any coupons appertaining thereto shall be executed
on behalf of the Company by the facsimile signature of its
President, its Secretary, any Vice President or its Treasurer.
Any signature in facsimile may be imprinted or otherwise
reproduced on the Securities. The Company may adopt and use the
signature or facsimile signature of any person who shall be a
President, Secretary, Vice President or Treasurer at the time of
the execution of the Securities, notwithstanding the fact that at
the time the Securities shall be authenticated and delivered, or
disposed of, such person shall have ceased to have held such
office by virtue of which such person so executed such security.
(b) The Guarantees shall be executed on behalf of the
Guarantor by its President, any Vice President, or its Treasurer,
manually or in facsimile, and a facsimile of its corporate seal
shall be impressed, imprinted or engraved thereon and shall be
attested by its Secretary or one of its Assistant Secretaries,
whose signature may be manual or in facsimile, prior to the
authentication of the Securities on which they are endorsed. Any
signature in facsimile may be imprinted or otherwise reproduced
on the Guarantees. The Guarantor may adopt and use the signature
or facsimile signature of any person who shall be any such
officer of the Guarantor at the time of the execution of the
Guarantee, notwithstanding the fact that at the time the
Securities shall be authenticated and delivered, or disposed of,
such person shall have ceased to be such officer of the
Guarantor.
11. Agreements Concerning Agents.
Each of the Agents accepts its obligations herein and in the
Securities, upon the terms and conditions hereof and thereof,
including the following, to all of which the Company and the
Guarantor agree and to all of which the rights hereunder of the
holders from time to time of the Securities and coupons shall be
subject:
(a) Each of the Agents shall be entitled to reasonable
compensation for all services rendered by such Agent, as
separately agreed by the Company and the Agent, and the Company
and the Guarantor agree promptly to pay such compensation and to
reimburse each of the Agents for the reasonable out-of-pocket
fees, charges and expenses (including, but not limited to,
counsel fees and expenses) incurred by such Agent in connection
with the services rendered by it hereunder. The Company and the
Guarantor also agree to indemnify each of the Agents and their
officers, directors, employees and agents and each other paying
agency and conversion agency of the Company for, and to hold it
harmless against, any loss, liability or expense (including the
costs and expenses of defending against any claim of liability)
incurred without negligence or bad faith on the part of such
Agent or other paying agency and conversion agency of the Company
hereunder. The obligations of the Company and the Guarantor
under this clause (a) shall survive payment of the Securities or
PAGE
the resignation or removal of any Agent or paying agency or
conversion agency and the termination of this Agreement.
(b) In acting under this Agreement and in connection
with the Securities, each of the Agents and each other paying
agency and conversion agency of the Company is acting solely as
agent of the Company, and does not assume any obligation, or
relationship of agency or trust, for or with any of the owners or
holders of the Securities or coupons, except that all funds held
by the Paying Agent or any other paying agency of the Company for
payment of principal of, premium, if any, or interest on (or
Additional Amounts, if any, on) the Securities shall be held in
trust but need not be segregated from other funds except as
required by law and as set forth herein and in the Securities,
and shall be applied as set forth herein and in the Securities;
provided, however, that monies paid by the Company or the
Guarantor to the Paying Agent or any other paying agency of the
Company for the payment of principal of or interest on (or
Additional Amounts, if any, on) Securities remaining unclaimed at
the end of two years after such principal or interest (or
Additional Amounts, if any) shall have become due and payable
shall be repaid to the Company or the Guarantor, as provided and
in the manner set forth in the Securities, whereupon the
aforesaid trust shall terminate and all liability of the Paying
Agent or such other paying agency or the Company with respect
thereto shall cease and the holders of Securities shall
thereafter have recourse only to the Company and the Guarantor.
(c) Each of the Agents and each other paying agency
and conversion agency of the Company may consult with one or more
counsel satisfactory to it (including counsel to the Company or
the Guarantor), and the advice or written opinion of such counsel
shall be full and complete authorization and protection in
respect of any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the opinion of such counsel.
(d) Each of the Agents and each other paying agency
and conversion agency of the Company shall be protected and shall
incur no liability for or in respect of any action taken, omitted
or suffered by it in reliance upon any Security, Guarantee or
coupon, notice, direction, consent, certificate, affidavit,
statement or other paper or document believed in good faith by
such Agent or such other paying agency and conversion agency of
the Company to be genuine and to have been signed by the proper
parties.
(e) Each of the Agents and each other paying agency
and conversion agency of the Company, its officers, directors and
employees may become the owner of, or acquire any interest in,
any Securities or coupons, with the same rights that it or they
would have if it were not an Agent or such other paying agency of
the Company hereunder, and may engage or be interested in any
financial or other transaction with the Company, the Guarantor
and their affiliates and may act on, or as depositary, trustee or
agent for, any committee or body of holders of Securities or
other obligations of the Company or the Guarantor, as freely as
PAGE
if it were not an Agent or a paying agency or conversion agency
of the Company hereunder.
(f) Neither the Paying Agent nor any other paying
agency of the Company shall be under any liability for interest
on any monies at any time received by it pursuant to any of the
provisions of this Agreement or of the Securities.
(g) The recitals contained herein and in the
Securities (except in the Fiscal Agent's certificates of
authentication), shall be taken as the statements of the Company
or the Guarantor, as the case may be, and the Agents assume no
responsibility for the correctness of the same. None of the
Agents makes any representation as to the validity or sufficiency
of this Agreement, the Offering Circular relating to the
Securities or the Securities or the coupons or the Guarantees,
except for such Agent's due authorization to execute this
Agreement. Neither the Agents nor any other paying agency or
conversion agency of the Company shall be accountable for the use
or application by the Company of the proceeds of any Securities
authenticated and delivered by the Fiscal Agent in conformity
with the provisions of this Agreement.
(h) The Agents and each other paying agency and
conversion agency of the Company shall be obligated to perform
such duties and only such duties as are herein and in the
Securities specifically set forth and no implied duties or
obligations shall be read into this Agreement or the Securities
against the Agents or any other paying agency of the Company.
The Agents shall not be under any obligation to take any action
hereunder which may tend to involve them in any expense or
liability, the payment of which, within a reasonable time, is
not, in their reasonable opinion, assured to them and for which
they have not received an indemnity satisfactory to them.
(i) Unless herein or in the Securities otherwise
specifically provided, any order, certificate, notice, request,
direction, or other communication, from the Company or the
Guarantor made by or given by it under any provision of this
Agreement shall be sufficient and may be conclusively relied upon
by any Agent, if signed by the President, the Secretary, any Vice
President or the Treasurer of the Company or the Guarantor, as
the case may be.
(j) Anything in this Agreement to the contrary
notwithstanding, none of the Agents shall incur any liability
hereunder, except as a result of negligence or bad faith
attributable to it or its officers or employees, and shall incur
no liability for the negligence or bad faith of its agents
appointed by it with due care; provided that the Agent shall
notify the Company and the Guarantor of the appointment of any
such agents.
(k) The Agents shall not be liable for any loss caused
by events beyond the reasonable control of the Agents, including
any malfunction, interruption of or error in the transmission of
information caused by any machines or systems or interruption of
PAGE
communication facilities, abnormal operating conditions or acts
of God. The Agents shall have no liability whatsoever for any
consequential, special, indirect or speculative losses or
damages.
12. Offices, Resignation, Successors, Etc. of Agents,
Paying, Conversion and Transfer Agencies.
(a) The Company agrees that, until none of the
Securities and coupons are outstanding or until monies for the
payment of all principal of premium, if any, and interest on (and
Additional Amounts, if any, on) all outstanding Securities shall
have been made available at the office of the Paying Agent and
shall have been returned to the Company as provided in the
Securities, there shall at all times be a Fiscal Agent in the
Borough of Manhattan, New York City, which shall be a bank or
trust company organized and doing business under the laws of the
United States of America or of any State of the United States of
America, in good standing and authorized under such laws to
exercise corporate trust powers, a Paying Agent, a Principal
Conversion Agent and a Transfer Agent having offices in New York
City, which shall be a bank or trust company organized, in good
standing and doing business under the laws of the United States
of America or of any State of the United States of America, and a
Principal Paying Agent, a paying agency, a conversion agency and
a transfer agency in at least one city in Western Europe, which
shall include Luxembourg if the Securities are listed on the
Luxembourg Stock Exchange and so long as listed thereon.
(b) Each of the Agents may at any time resign as such
Agent by giving written notice to the Company and to the
Guarantor of such intention on its part, specifying the date on
which its desired resignation shall become effective; provided,
however, that such date shall not be less than 90 days after
receipt of such notice by the Company and the Guarantor unless
the Company and the Guarantor agree to accept less notice. Each
of the Agents hereunder may be removed at any time by the filing
with it of any instrument in writing signed on behalf of the
Company and the Guarantor and specifying such removal and the
date when it is intended to become effective. Such resignation
or removal shall take effect upon the date of the appointment by
the Company and the Guarantor, as hereinafter provided, of a
successor Fiscal Agent, Principal Conversion Agent or Principal
Paying Agent, as the case may be, and the acceptance of such
appointment by such successor Agent. Upon its resignation or
removal, each of the Agents shall be entitled to the payment by
the Company and the Guarantor of its compensation for the
services rendered hereunder and to the reimbursement of all
reasonable out-of-pocket expenses incurred in connection with the
services rendered hereunder by such Agent.
(c) In case at any time any of the Agents shall
resign, or shall be removed, or shall be incapable of acting, or
shall file a voluntary petition as a debtor under Chapter 7 or 11
of Title 11 of the United States Code or have an order for relief
entered against it as a debtor under Chapter 7 or 11 of Title 11
of the United States Code or make an assignment for the benefit
PAGE
of its creditors or consent to the appointment of a receiver of
all or any substantial part of its property, or shall admit in
writing its inability to pay or meet its debts as they mature, or
if an order of any court shall be entered approving any petition
filed by or against the Fiscal Agent under any legislation
similar to the provisions of Title 11 of the United States Code
or against any of the Agents under the provisions of any
legislation similar to the provisions of Title 11 of the United
States Code, or if a receiver of it or of all or any substantial
part of its property shall be appointed, or if any public officer
shall take charge or control of it or of its property or affairs,
for the purpose of rehabilitation, conservation or liquidation, a
successor Agent, qualified as aforesaid, shall be appointed by
the Company and the Guarantor by an instrument in writing. Upon
the appointment as aforesaid of a successor Agent and acceptance
by it of such appointment, the Agent so superseded shall cease to
be such Agent hereunder. If no successor Agent shall have been
so appointed by the Company and the Guarantor and shall have
accepted appointment as hereinafter provided, any holder of a
Security, on behalf of itself and all others similarly situated,
or any Agent may petition any court of competent jurisdiction for
the appointment of a successor Agent and shall promptly notify
the Company and the Guarantor of such action.
(d) Any successor Fiscal Agent, Principal Conversion
Agent, Transfer Agent or Principal Paying Agent appointed
hereunder shall execute, acknowledge and deliver to its
predecessor and to the Company and the Guarantor an instrument
accepting such appointment hereunder, and thereupon such
successor Agent, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers,
trusts, immunities, duties and obligations of such predecessor
with like effect as if originally named as such Agent hereunder,
and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Agent shall be
entitled to receive, all monies, securities or other property on
deposit with or held by such predecessor, as such Agent
hereunder.
(e) Any corporation or bank into which any of the
Agents hereunder may be merged or converted, or any corporation
or bank with which such Agent may be consolidated, or any
corporation or bank resulting from any merger, conversion or
consolidation to which such Agent shall be a party, or any
corporation or bank to which such Agent shall sell or otherwise
transfer all or substantially all the assets and business of such
Agent, or any corporation to which the Fiscal Agent shall sell or
otherwise transfer all or substantially all of its corporate
trust business, provided that it shall be qualified as aforesaid,
shall be the successor to such Agent under this Agreement without
the execution or filing of any document or any further act on the
part of any of the parties hereto.
(f) So long as there shall be a Fiscal Agent and
Paying Agent hereunder, the Company shall maintain agencies (i)
where Registered Securities (but not Bearer Securities or
PAGE
coupons) may be presented for surrender for payment (and for the
payment of Additional Amounts on the Registered Securities, if
any) and where Securities may be surrendered for conversion in
the Borough of Manhattan, New York City, and (ii) where Bearer
Securities and coupons may be surrendered for payment (and for
the payment of Additional Amounts (pursuant to Section 2 of the
Bearer Securities) on Bearer Securities, if any) and where Bearer
Securities may be surrendered for conversion in at least one city
in Western Europe, which shall be Luxembourg if the Securities
are listed on the Luxembourg Stock Exchange and so long as listed
thereon. The Company now intends to maintain additional agencies
(subject to applicable laws and regulations) where Bearer
Securities may be surrendered for payment (and for the payment of
Additional Amounts (pursuant to Section 2 of the Bearer
Securities) on Bearer Securities, if any), where Registered
Securities may be surrendered for payment and where Securities
may be surrendered for conversion in London, England and, if the
Securities are listed on the Luxembourg Stock Exchange and so
long as listed thereon, Luxembourg, and during such period to
keep the Agents advised of the names and locations of such
agencies. Unless the Company shall otherwise notify each of the
Agents in writing, the sole such paying agencies and conversion
agencies shall be the agencies specified in the Securities. The
Company authorizes the Paying Agent to pay to or to the order of
the aforesaid agencies, upon written demand by such agencies,
funds for the payment of the principal of, premium, if any, and
interest on (and Additional Amounts pursuant to Section 2 of the
Registered Securities and Bearer Securities, if any, on) the
Securities. Except as otherwise arranged by the Company, the
Fiscal Agent shall arrange for the payment of the compensation of
such paying agencies for their services as such, and the Company
and the Guarantor shall pay to the Fiscal Agent from time to time
sufficient funds to make such payments.
(g) So long as there shall be a Fiscal Agent, Paying
Agent and Conversion Agent hereunder, the Company shall maintain
a Security Registrar and additional transfer agencies (the
"Transfer Agents") (i) where Registered Securities may be
surrendered for exchange for other Registered Securities in New
York City and (ii) in at least one city in Western Europe, which
shall be Luxembourg if the Securities are listed on the
Luxembourg Stock Exchange and so long as listed thereon, where
Bearer Securities may be delivered in exchange for Bearer
Securities or for Registered Securities. Consistent with
applicable laws and regulations, including the provisions of the
federal income tax laws of the United States, such agencies may
be the same agencies as or different agencies from those
maintained by the Company pursuant to Section 12(f).
The Company hereby appoints, subject to the listing of the
Securities on the Luxembourg Stock Exchange, Bankers Trust
Luxembourg, S.A. ▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ as Transfer Agent for such exchanges. The transfer,
exchange and registration of transfer or exchange of Registered
Securities shall be made by the Fiscal Agent in New York City.
13. Taxes.
PAGE
The Company will pay all stamp taxes and other similar
duties, if any, that may be imposed by the United States of
America or the United Kingdom, or any state or political
subdivision thereof or taxing authority therein, with respect to
the execution or delivery of this Agreement, or the issuance of
the Regulation S Global Security or the Guarantees, or the
exchange from time to time of the Regulation S Global Security
for Registered Securities and Bearer Securities, or with respect
to the issue or delivery of shares of Common Stock on conversion
of Securities; provided, however, that the Company shall not be
required to pay any tax or duty which may be payable in respect
of any transfer involved in the issue or 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; and further provided that the
Company shall not be required to pay any tax or duty that may be
payable in respect of any accrued interest paid in connection
with the conversion of the Securities.
14. Meetings and Votes of Holders.
(a) A meeting of holders of Securities may be called
at any time and from time to time pursuant to this Section for
any of the following purposes: (i) to give any notice to the
Company, to the Guarantor or to the Fiscal Agent, or to give any
directions to the Fiscal Agent, or to consent to the waiving of
any default hereunder or under the Registered Securities and
Bearer Securities and its consequences, or to take any other
action authorized to be taken by holders of Securities pursuant
to Section 9 of the Registered Securities and Bearer Securities;
or (ii) to take any other action authorized to be taken by or on
behalf of the holders of any specified aggregate principal amount
of the Securities under any other provision of this Agreement,
the Registered Securities and Bearer Securities or under
applicable law.
(b) Meetings of holders of Securities may be held at
such place or places in New York City or London as the Fiscal
Agent or, in case of its failure to act, the Company, the
Guarantor or the holders calling the meeting shall from time to
time determine.
(c) The Fiscal Agent may at any time call a meeting of
holders of Securities to be held at such time and at such place
in any of the locations designated in Section 14(b) hereof as the
Fiscal Agent shall determine. Notice of every meeting of holders
shall be made as specified in Section 19 hereof, except that such
notice shall set forth the time and the place of such meeting, in
general terms the action proposed to be taken at such meeting and
a general description of regulations applicable to such meeting,
and shall be published at least three times in the publications
specified in such Section 19, the first publication to be not
PAGE
less than 21 nor more than 180 days prior to the date fixed for
the meeting.
(d) In case at any time the Company, the Guarantor or
the holders of at least 25% in aggregate principal amount of the
Securities shall have requested the Fiscal Agent to call a
meeting of the holders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Fiscal Agent shall not have given the first 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, the Guarantor or the holders
of Securities in the amount above specified may determine the
time and the place in either of the locations designated in
Section 14(b) hereof for such meeting and may call such meeting
to take any action authorized in Section 14(a) hereof by giving
notice thereof as provided in Section 14(c) hereof.
(e) To be entitled to vote at any meeting of holders
of Securities, a person shall be (i) a holder of one or more
Securities, or (ii) a person appointed by an instrument in
writing as proxy for a holder or holders of Securities by such
holder or holders, which proxy need not be a holder of
Securities. 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 and any
representatives of the Fiscal Agent and its counsel and any
representatives of the Company and its counsel and any
representatives of the Guarantor and its counsel.
(f) The persons entitled to vote a majority in
principal amount of the outstanding Securities shall constitute a
quorum for the transaction of all business specified in Section
14(a) hereof. No business shall be transacted in the absence of a
quorum unless a quorum is represented when the meeting is called
to order. 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 the holders of Securities (as provided
in Section 14(d) hereof), be dissolved. In any other case the
meeting shall 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 adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in Section
14(c) hereof except that such notice need be published only once
but must be given not less than five days prior to the date on
which the meeting is scheduled to be reconvened. 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 Securities outstanding shall constitute a quorum for the
taking of any action set forth in the notice of the original
meeting. Notice of the reconvening of an adjourned meeting shall
state expressly the percentage of the aggregate principal amount
of the Securities that shall constitute a quorum. 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 Section 9 of the Registered Securities and Bearer
Securities) shall be effectively passed and decided if passed or
PAGE
decided by the persons entitled to vote a majority in principal
amount of the Securities represented and voting at such meeting,
provided that such amount shall be not less than 25% in principal
amount of the Securities outstanding. Any holder of a Security
who has executed an instrument in writing appointing a person as
his proxy shall be deemed to be present for the purposes of
determining a quorum and be deemed to have voted; provided,
however, that such holder shall be considered as present or
voting only with respect to the matters covered by such
instrument in writing. Any resolution passed or decision taken
at any meeting of the holders of Securities duly held in
accordance with this Section 14 shall be binding on all the
holders of Securities whether or not present or represented at
the meeting.
(g) Notwithstanding any other provision of this
Agreement, the Fiscal Agent 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 Bearer
Securities shall be proved by the production of the Bearer
Securities or by a certificate executed, as depositary, by, and
the appointment of any proxy shall be proved by having the
signature of the person executing the proxy witnessed or
guaranteed by, in each case, any trust company, bank or banker
satisfactory to the Fiscal Agent. Such regulations may provide
that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof
specified herein or other proof. The holding of Registered
Securities shall be proved by the registry books maintained in
accordance with Section 2(d) hereof or by a certificate or
certificates of the Fiscal Agent in its capacity as Company's
agent for the maintenance of such books.
(h) The Fiscal Agent shall, by an instrument in
writing, appoint a temporary chairperson and a temporary
secretary of the meeting, unless the meeting shall have been
called by the Company, the Guarantor or by the holders of
Securities or the Fiscal Agent at the request of the Company, the
Guarantor or the holders of Securities as provided in Section
14(d) hereof and in the Securities, in which case the Company,
the Guarantor or the holders calling the meeting, as the case may
be, shall in like manner appoint a temporary chairperson and a
temporary secretary. A permanent chairperson and a permanent
secretary of the meeting shall be elected by vote of the holders
of a majority in principal amount of the Securities represented
at the meeting and entitled to vote.
(i) At any meeting each holder 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
PAGE
Securities challenged as not outstanding and ruled by the
chairperson of the meeting to be not outstanding. The
chairperson of the meeting shall have no right to vote, except as
a holder or proxy.
(j) Any meeting of holders of Securities duly called
pursuant to Section 14(c) or 14(d) hereof at which a quorum is
present may be adjourned from time to time by vote of the holders
(or proxies for the holders) of a majority in principal amount of
the Securities represented at the meeting and entitled to vote;
and the meeting may be held as so adjourned without further
notice.
(k) 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 serial
number or numbers of the Securities held or represented by them.
The permanent chairperson 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
triplicate of all votes cast at the meeting. A record, at least
in triplicate, 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 published as provided in Section 14(c) or
14(d) hereof and, if applicable, Section 14(f) hereof. Each copy
shall be signed and verified by the affidavits of the permanent
chairperson and secretary of the meeting, and one such copy shall
be delivered to the Company, another to the Guarantor and another
to the Fiscal Agent to be preserved by the Fiscal Agent, the copy
delivered to the Fiscal Agent 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.
15. Merger, Consolidation or Sale of Assets.
(a) If at any time there shall be a merger,
consolidation, sale or conveyance of assets or assumption of
obligations to which any of the covenants contained in Section 6
of the Registered Securities and Bearer Securities or Section 3
of the Guarantees, is applicable, then in any such event the
successor or assuming corporation referred to therein will
promptly deliver to the Fiscal Agent:
(i) a certificate signed by an executive officer of
such successor or assuming corporation stating that as of the
time immediately after the effective date of any such
transaction, the covenants of the Company or the Guarantor, as
the case may be, contained in the Registered Securities and
Bearer Securities or the Guarantees, as applicable, have been
complied with and the successor or assuming corporation is not in
PAGE
default under the provisions of this Agreement or the Securities
or the Guarantees, as applicable; and
(ii) a written opinion of legal counsel (who may be an
employee of or counsel to the successor or assuming corporation)
stating that, in such counsel's opinion, such covenants have been
complied with and that any instrument or instruments executed in
the performance of such covenants comply with the requirements
thereof.
In case of any such merger, consolidation, sale, conveyance
or assumption, such successor or assuming corporation shall
succeed to and be substituted for the Company or the Guarantor,
as the case may be, with the same effect, subject to (in the case
of a merger to which the Company is a party) Section 6(b) of the
Registered Securities and Bearer Securities, as if such successor
or assuming corporation had been named herein and in the
Registered Securities and Bearer Securities or the Guarantees, as
applicable, as the Company or the Guarantor, as the case may be;
the Company or the Guarantor, as the case may be, shall thereupon
be relieved of any further obligation or liability hereunder or
upon the Securities or the Guarantees, as applicable, provided
that any successor or assuming corporation shall have the right
to redeem the Securities, pursuant to Section 3(b) of the
Registered Securities and Bearer Securities, only as a result of
circumstances which occur subsequent to such merger,
consolidation, sale, conveyance or assumption and as a result of
which the Company would have had such right if the Company had
remained the obligor on the Securities. The Company or the
Guarantor, as the case may be, as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up or
liquidated. If applicable, such successor or assuming
corporation thereupon may cause to be signed, and may issue
either in its own name or in the name of the Company any or all
of the Securities issuable hereunder which theretofore shall not
have been executed on behalf of the Company and delivered to the
Fiscal Agent; and, upon the order of such successor or assuming
corporation, instead of the Company, and subject to all the
terms, conditions and limitations in this Agreement prescribed,
the Fiscal Agent shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered
by the officers of the Company to the Fiscal Agent for
authentication, and any Securities which such successor or
assuming corporation thereafter shall cause to be signed and
delivered to the Fiscal Agent for that purpose. If applicable,
such successor or assuming corporation may cause to be endorsed
either in its own name or in the name of the Guarantor,
Guarantees on any or all of the Securities issuable hereunder
which theretofore shall not have been so endorsed and delivered
to the Fiscal Agent. All the Securities so issued shall in all
respects have the same legal rank and benefit under this
Agreement as the Securities theretofore or thereafter issued in
accordance with the terms of this Agreement as though all of such
Securities had been issued at the date of the execution hereof.
In case of any merger, consolidation, sale, conveyance or
assumption, such changes in phraseology and form (but not in
PAGE
substance) may be made in the Securities or the Guarantees
thereafter to be issued as may be appropriate.
(b) The Fiscal Agent may rely on the documents
delivered pursuant to this Agreement by any successor or assuming
corporation pursuant to this Section 15 as conclusive evidence
that any such merger, consolidation, sale, conveyance or
assumption complies with the provisions of this Section and the
Securities.
16. Governing Law.
THIS AGREEMENT, THE SECURITIES AND ANY COUPONS APPERTAINING
THERETO AND THE GUARANTEES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES
OF AMERICA, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES.
17. Amendments.
This Agreement may be amended by the parties hereto, and
certain provisions hereof may be waived, in the manner provided
in Section 9 of the Registered Securities and Bearer Securities.
This Agreement may also be amended by the parties hereto, without
the consent of the holder of any Security, for the purposes set
forth in Section 9 of the Registered Securities and Bearer
Securities and for the purpose of curing any ambiguity, or of
curing, correcting or supplementing any defective provision
contained herein or in any manner that the parties may mutually
deem necessary or desirable, and that shall not materially
adversely affect the interests of the holders of the Securities.
18. Agent for Service of Process.
As long as any of the Securities or coupons appertaining
thereto remain outstanding, the Company and the Guarantor will at
all times have an authorized agent in the City of New York, upon
whom process may be served in any legal action or proceeding
arising out of or relating to this Agreement or any Security or
any coupons appertaining thereto or any Guarantee. Service of
process upon such agent and written notice of such service mailed
or delivered to the Company or the Guarantor, as the case may be,
shall to the extent permitted by law be deemed in every respect
effective service of process upon the Company or the Guarantor,
as the case may be, in any such legal action or proceeding. Each
of the Company and the Guarantor hereby appoints the Fiscal Agent
as its agent for such purpose, and covenants and agrees that
service of process in any legal action or proceeding may be made
upon it at the office of such agent located at Four ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (or such other address in the
City of New York, as may be the principal corporate trust office
of such agent), unless and until the Company or the Guarantor, as
the case may be, shall designate another agent for such purpose
by written notice to the Fiscal Agent. If the Fiscal Agent
receives any such service of process, it shall promptly notify
the Company and the Guarantor of such service.
19. Notices.
PAGE
All notices hereunder shall be deemed to have been given
when deposited in the mail as first-class mail, registered or
certified, return receipt requested, postage prepaid, addressed
to any party hereto as follows:
The Company: ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to the
Guarantor and the
General Counsel of
the Guarantor
The Guarantor: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Secretary,
with a copy to the General Counsel
The Fiscal Agent: Bankers Trust Company
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Trust and Agency Group
The Principal Paying Agent:
Bankers Trust Company
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attn: Corporate Trust and Agency Group
The Transfer Agent1: Bankers Trust Luxembourg, S.A.
▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇,
▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Attn: Corporate Trust and Agency Group
or at any other address of which any of the foregoing shall have
notified the others in writing.
Notices to holders of the Securities shall be given by
publication on a Business Day in an Authorized Newspaper. For
purposes of this Agreement, the term _Authorized Newspaper_ means
an English language newspaper, customarily published on each
business day in morning editions, whether or not it shall be
published in Saturday, Sunday or holiday editions, such as The
Wall Street Journal (Eastern edition) in New York City, the
Financial Times in London and the Luxemburger Wort in Luxembourg.
If by reason of the temporary or permanent suspension of
publication of any newspaper or by reason of any other cause it
shall be impossible to make publication of such notice in an
Authorized Newspaper as herein provided, then such publication or
other notice in lieu thereof as shall be made by the Fiscal Agent
shall constitute sufficient publication of such notice, if such
publication or other notice shall, so far as may be possible,
1 Subject to the listing of the Securities on the Luxembourg
Stock Exchange.
PAGE
approximate the terms and conditions of the publication in lieu
of which it is given. Notices will be mailed by the Fiscal
Agent, on behalf of and at the expense of the Company, by
first-class mail to registered holders of Registered Securities
at their registered address as the same shall appear on the books
of the Fiscal Agent on the day 15 days prior to such mailing.
The Fiscal Agent shall promptly furnish to the Company and to
each other paying agency of the Company a copy of each notice so
published or mailed.
20. Counterparts.
This Agreement may be executed in separate counterparts, and
by each party separately in a separate counterpart, each such
counterpart, when so executed and delivered, to be an original.
Such counterparts shall together constitute but one and the same
instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
PAGE
IN WITNESS WHEREOF, the parties hereto have executed this
Fiscal Agency Agreement as of the date first above written.
THERMO CARDIOSYSTEMS INC.
By:______________________________
Name:
Title:
THERMO ELECTRON CORPORATION
By:______________________________
Name:
Title:
BANKERS TRUST COMPANY
as Fiscal Agent
By:_______________________________
Name:
Title:
BANKERS TRUST LUXEMBOURG, S.A.
as Transfer Agent
By:_______________________________
Name:
Title:
PAGE
EXHIBIT A
(FORM OF FACE OF REGISTERED SECURITY)
Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be
transferred except as a whole by the Depository to a nominee of
the Depository or by a nominee of the Depository to the
Depository or another nominee of the Depository or by the
Depository or any such nominee to a successor depository or a
nominee of such successor Depository. Unless this certificate is
presented by an authorized representative of The Depository Trust
Company, a New York corporation (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇) ("▇▇▇"), to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as may be
requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or such other entity as may be 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.2
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED,
SOLD OR OTHERWISE TRANSFERRED WITHIN THE "UNITED STATES" OR TO
"U.S. PERSONS" (AS DEFINED IN REGULATION S UNDER THE SECURITIES
ACT) IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER. THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE
HEREOF, REPRESENTS, ACKNOWLEDGES AND AGREES FOR THE BENEFIT OF
THE COMPANY THAT: (I) IT HAS ACQUIRED A "RESTRICTED" SECURITY
WHICH HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT; (II) IT
WILL NOT OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY PRIOR TO
THE DATE WHICH IS TWO YEARS (OR THE THEN APPLICABLE HOLDING
PERIOD UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR SUCCESSOR
PROVISION)) AFTER THE DATE OF ORIGINAL ISSUANCE HEREOF AND THE
LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY
WAS THE OWNER OF SUCH RESTRICTED SECURITIES (OR ANY PREDECESSOR),
EXCEPT (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (D) OUTSIDE THE UNITED STATES IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" (WITHIN THE MEANING OF RULE 501 (A)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE WITH THE
2 This paragraph should be included only if the Security is
issued in global form.
PAGE
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY OTHER APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF
THIS SECURITY OF THE RESALE RESTRICTIONS SET FORTH IN (II) ABOVE.
ANY OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE FOREGOING
CLAUSES II(D), (E) OR (F) IS SUBJECT TO THE RIGHT OF THE ISSUER
OF THIS SECURITY AND THE FISCAL AGENT FOR SUCH ISSUER TO REQUIRE
THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS OR OTHER
INFORMATION ACCEPTABLE TO THEM IN FORM AND SUBSTANCE.3
3 This paragraph to be included if the Security is a
Restricted Security.
PAGE
THERMO CARDIOSYSTEMS INC.
(Incorporated in the Commonwealth of Massachusetts)
4-3/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2004
GUARANTEED ON A SUBORDINATED BASIS BY
THERMO ELECTRON CORPORATION
(Incorporated in the State of Delaware)
No. R-_______________ U.S.$_______
(CUSIP # )
Thermo Cardiosystems Inc., a corporation duly incorporated
and existing under the laws of the Commonwealth of Massachusetts
(the "Company"), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of
__________________ United States Dollars on May 15, 2004 upon
presentation and surrender hereof and to pay interest thereon,
from May 14, 1997 or from the most recent Interest Payment Date
(as defined below) to which interest has been paid or duly
provided for, semiannually in arrears on November 15 and May 15
in each year (each an "Interest Payment Date"), commencing
November 15, 1997, at the rate of 4 3/4 % per annum, until the
principal hereof is paid or made available for payment. Interest
hereon shall be calculated on the basis of a 360-day year
comprised of twelve 30-day months. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Fiscal Agency Agreement (as defined
on the reverse hereof), be paid to the person in whose name this
Security is registered at the close of business on the Record
Date for such interest payment, which shall be the October 31 and
April 30 (whether or not a Business Day (as defined on the
reverse hereof)) next preceding such Interest Payment Date.
Except as otherwise provided in the Fiscal Agency Agreement (as
defined on the reverse hereof), any such interest not so
punctually paid or duly provided for will forthwith cease to be
payable to the holder on such Record Date and may be paid at any
time in any lawful manner, all as more fully provided in the
Fiscal Agency Agreement. Payment of interest on this Security
shall be made by United States dollar check drawn on a bank in
the City of New York and mailed to the person entitled thereto at
his address as it shall appear in the Security Register, or (if
arrangements satisfactory to the Company and the Fiscal Agent are
made) by wire transfer to a United States dollar account
maintained by the payee with a bank in the City of New York;
provided, however, that if such mailing is not possible and no
such application shall have been made, payment of interest shall
be made at the principal corporate trust office of the Fiscal
Agent, or such other office or agency of the Company as may be
designated for such purpose in the City of New York, in United
States currency.
Reference is hereby made to the further provisions of this
Security set forth under Terms and Conditions of the Securities
on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
PAGE
This Security shall not become valid or enforceable for any
purpose unless and until the certificate of authentication hereon
shall have been manually signed by a duly authorized signatory of
the Fiscal Agent.
IN WITNESS WHEREOF, the Company has caused this Security to
be duly executed in its corporate name by the manual or facsimile
signature of a duly authorized officer.
Dated:
THERMO CARDIOSYSTEMS INC.
By:_________________________
Name:
Title:
Attest:
_______________________
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the
within-mentioned Fiscal Agency Agreement.
BANKERS TRUST COMPANY,
as Fiscal Agent
By:__________________________
Authorized Signatory
PAGE
(FORM OF FACE OF BEARER SECURITY)
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE _SECURITIES
ACT_), AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED STATES OR
TO U.S. PERSONS EXCEPT TO QUALIFIED INSTITUTIONAL BUYERS (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
RULE 144A (IF AVAILABLE) OR OTHERWISE PURSUANT TO AN EXEMPTION
FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT.
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS,
INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a)
OF THE UNITED STATES INTERNAL REVENUE CODE.
THERMO CARDIOSYSTEMS INC.
(Incorporated in the Commonwealth of Massachusetts)
4-3/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2004
GUARANTEED ON A SUBORDINATED BASIS BY
THERMO ELECTRON CORPORATION
(Incorporated in the State of Delaware)
No. B-______________
U.S.$______
(CUSIP # )
Thermo Cardiosystems Inc., a corporation duly incorporated
and existing under the laws of the Commonwealth of Massachusetts
(the "Company"), for value received, hereby promises to pay to
bearer upon presentation and surrender of this Security the
principal sum of __________ United States Dollars on May 15,
2004, and to pay interest thereon from May 14, 1997, semiannually
in arrears on November 15 and May 15 in each year (each an
"Interest Payment Date"), commencing November 15, 1997, at the
rate of 4 3/4% per annum, until the principal hereof is paid or
made available for payment. Interest hereon shall be calculated
on the basis of a 360-day year comprised of twelve 30-day months.
Such payments (including premium, if any) shall be made 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, subject to any laws or regulations applicable
thereto and to the right of the Company (limited as provided in
the Fiscal Agency Agreement (as defined on the reverse hereof))
to terminate the appointment of any paying agency, at the London
office of Bankers Trust Company located at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, or, if the Securities are
listed on the Luxembourg Stock Exchange and so long as listed
thereon, Bankers Trust Luxembourg, S.A., ▇▇ ▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ or at such other offices
or agencies outside the United States of America, its territories
and its possessions as the Company may designate, by United
States dollar check drawn on a bank in the City of New York, or
(if arrangements satisfactory to the Company and the Fiscal Agent
(as defined on the reverse hereof) are made) by wire transfer to
PAGE
a United States dollar account maintained by the holder at a bank
outside the United States, its territories and its possessions.
Interest on this Security shall be paid only at an office or
agency located outside the United States, its territories and its
possessions and, in the case of interest due on or before
maturity, only upon presentation and surrender at such an office
or agency of the interest coupons hereto attached as they
severally mature. No payment on this Security or any coupon will
be made at the corporate trust office of the Fiscal Agent or any
other paying agency maintained by the Company in the United
States, its territories or possessions, nor will any payment be
made by transfer to an account in, or by mail to an address in,
the United States, its territories or possessions, except as may
be permitted by United States tax laws and regulations in effect
at the time of such payment without detriment to the Company.
Notwithstanding the foregoing, payment of this Security and
coupons may be made at the office of the Fiscal Agent in the City
of New York if full payment at all paying agencies outside the
United States is illegal or effectively precluded by exchange
controls or other similar restrictions.
Reference is hereby made to the further provisions of this
Security set forth under Terms and Conditions of the Securities
on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Neither this Security nor any of the coupons attached hereto
shall become valid or enforceable for any purpose unless and
until the certificate of authentication hereon shall have been
manually signed by a duly authorized signatory of the Fiscal
Agent.
IN WITNESS WHEREOF, the Company has caused this Security to
be duly executed in its corporate name by the manual or facsimile
signature of a duly authorized signatory and coupons bearing the
facsimile signature of a duly authorized signatory to be annexed
hereto.
Dated: ____________ __, 1997
THERMO CARDIOSYSTEMS INC.
By:_______________________
Name:
Title:
Attest:
--------------------
PAGE
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the
within-mentioned Fiscal Agency Agreement.
BANKERS TRUST COMPANY,
as Fiscal Agent
By:_________________________
Authorized Signatory
Dated:
PAGE
(FORM OF FACE OF COUPON ON BEARER SECURITIES)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS,
INCLUDING THE LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a)
OF THE UNITED STATES INTERNAL REVENUE CODE.
THERMO CARDIOSYSTEMS INC.
(Incorporated in the Commonwealth of Massachusetts)
4-3/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2004
No: _____________
U.S.$____________
Due:
Unless the Security to which this coupon appertains shall
have been called for redemption prior to the due date hereof and
payment thereof duly provided for or shall have been converted,
Thermo Cardiosystems Inc. (herein called the "Company") shall,
subject to and in accordance with the terms and conditions of the
Bearer Security and the Fiscal Agency Agreement dated as of May
14, 1997 among the Company, Thermo Electron Corporation, as
guarantor, and Bankers Trust Company, as Fiscal Agent, pay to the
bearer, on the date set forth herein upon surrender hereof, the
amount shown hereon (together with any Additional Amount in
respect thereof which the Company may be required to pay
according to the terms of said Bearer Security) at the paying
agencies set out on the reverse hereof or at such other places
outside the United States of America, its territories and its
possessions as the Company may determine from time to time, by
United States dollar check drawn on a bank in the City of New
York, or (if arrangements satisfactory to the Company and the
Fiscal Agent are made) wire transfer to a United States dollar
account maintained by the bearer at a bank outside the United
States of America, its territories and its possessions, being
one-half year's interest then payable on said Security.
THERMO CARDIOSYSTEMS INC.
By:____________________________
Name:
Title:
Attest:
--------------------------
PAGE
[Reverse of Coupon]
Bankers Trust Company Bankers Trust Luxembourg, S.A.
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 14 Boulevard, ▇.▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
England
PAGE
(FORM OF REVERSE OF REGISTERED AND BEARER SECURITIES)
Terms and Conditions of the Securities
1. General.
(a) This Security is one of a duly authorized issue of
Securities of the Company designated as its 4 3/4% Convertible
Subordinated Debentures Due 2004 (herein called the
"Securities"). The Company, for the benefit of the holders from
time to time of the Securities, has entered into a Fiscal Agency
Agreement dated as of May 14, 1997 (the "Fiscal Agency
Agreement") among the Company, Thermo Electron Corporation, a
corporation duly organized and existing under the laws of the
State of Delaware, as Guarantor (the "Guarantor") and Bankers
Trust Company, as Fiscal Agent, Paying Agent, Transfer Agent,
Security Registrar and Principal Conversion Agent (the "Fiscal
Agent"), to which Fiscal Agency Agreement reference is hereby
made for a statement of the respective rights, limitations of
rights, duties and immunities thereunder of the Company, the
Guarantor, the Fiscal Agent, and the holders of Securities and
any coupons appertaining thereto and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The
holders of the Securities will be entitled to the benefits of, be
bound by, and be deemed to have notice of, all of the provisions
of the Fiscal Agency Agreement. A copy of the Fiscal Agency
Agreement is on file and may be inspected at the office of paying
agencies appointed by the Company.
(b) The Securities are issuable as bearer securities
(the "Bearer Securities"), with interest coupons attached, in the
denominations of U.S. $1,000 and U.S. $10,000, and as registered
securities (the "Registered Securities"), without coupons, in
denominations of U.S. $1,000 and integral multiples thereof. The
Registered Securities, and transfers thereof, shall be registered
as provided in Section 8 hereof and in the Fiscal Agency
Agreement. The holder of any Bearer Security or any coupon and
the registered holder of a Registered Security shall (to the
fullest extent permitted by applicable law) be treated at all
times, by all persons and for all purposes as the absolute owner
of such Security or coupon, as the case may be, regardless of any
notice of ownership, theft or loss or of any writing thereon.
(c) The Securities are direct and unsecured
obligations of the Company, subordinated as set forth in Section
7 hereof. There are no restrictions herein on other indebtedness
or securities which may be incurred or issued by the Company.
2. Additional Amounts. The Company will pay to the holder
of this Security or of any coupon appertaining hereto who is a
United States Alien (as defined below) such additional amounts
("Additional Amounts") as may be necessary in order that every
net payment of the principal of, premium, if any, and interest on
this Security, after withholding for or on account of any
present or future tax, assessment or governmental charge imposed
upon or as a result of such payment by the United States or any
political subdivision or taxing authority thereof or therein,
will not be less than the amount provided herein or in any coupon
appertaining hereto to be then due and payable; provided,
PAGE
however, that the foregoing obligation to pay Additional Amounts
shall not apply to any one or more of the following:
(a) any tax, assessment or other governmental charge
which would not have been so imposed but for (i) the existence of
any present or former connection between such holder (or between
a fiduciary, settlor, beneficiary, member or stockholder of, or a
person holding a power over, such holder, if such holder is an
estate, trust, partnership or corporation) and the United States,
including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, member, stockholder or person holding a
power) being or having been a citizen or resident or treated as a
resident thereof or being or having been engaged in a trade or
business therein or being or having been present therein or
having or having had a permanent establishment therein, or (ii)
such holder's present or former status as a personal holding
company, foreign personal holding company, passive foreign
investment company, foreign private foundation or other foreign
tax-exempt entity or controlled foreign corporation for United
States tax purposes or a corporation which accumulates earnings
to avoid United States Federal income tax, or (iii) such holder's
status as a bank extending credit pursuant to a loan agreement
entered into in the ordinary course of business;
(b) any tax, assessment or other governmental charge
which would not have been so imposed but for the presentation by
the holder of this Security or any coupon appertaining hereto for
payment on a date more than 10 days after the date on which such
payment became due and payable or on the date on which payment
thereof is duly provided, whichever occurs later;
(c) any estate, inheritance, gift, sales, transfer or
personal property tax or any similar tax, assessment or other
governmental charge;
(d) any tax, assessment or other governmental charge
which would not have been imposed but for the failure to comply
with certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
present or former connection with the United States of the holder
or beneficial owner of such Security or any related coupon if
such compliance is required by statute, regulation or ruling of
the United States or any political subdivision or taxing
authority thereof as a precondition to relief or exemption from
such tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge
which is payable otherwise than by deduction or withholding from
payments of principal of and premium, if any, or interest on this
Security;
(f) any tax, assessment or other governmental charge
imposed on interest received by a person holding, actually or
constructively, 10% or more of the total combined voting power of
all classes of stock of the Company entitled to vote;
(g) any tax, assessment or other governmental charge
required to be withheld by any paying agent from any payment of
principal of, or premium, if any, or interest on this Security or
PAGE
interest on any coupon appertaining thereto if such payment can
be made without such withholding by any other paying agent; or
(h) any tax, assessment, or other governmental charge
imposed on the disposition of this Security by a person holding
at any time, actually or constructively, Securities having a fair
market value in excess of the greater of the fair market value of
5 percent of (i) the Company's Common Stock or (ii) the
Securities;
nor will Additional Amounts be paid with respect to any
payment of the principal of, premium, if any, or interest on this
Security (or cash in lieu of issuance of shares of Common Stock
upon conversion) to a person other than the sole beneficial owner
of such payment, or that is a partnership or fiduciary to the
extent such beneficial owner, member of such partnership or
beneficiary or settlor with respect to such fiduciary would not
have been entitled to the payment of Additional Amounts had such
beneficial owner, member, beneficiary or settlor been the holder
of this Security or any coupon appertaining hereto;
The term "United States Alien" means any person who, for
United States Federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a foreign
partnership, or an estate or trust the income of which is not
subject to United States Federal income tax regardless of its
source, and the term "United States" means the United States of
America (including the several States and the District of
Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
Except as specifically provided herein and in the Fiscal
Agency Agreement, 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.
Whenever any Additional Amounts are to be paid on the
Securities, the Company will give notice to the Guarantor, the
Fiscal Agent, the Principal Paying Agent and any paying agency of
the Company, all as provided in the Fiscal Agency Agreement.
3. Redemption.
(a) The Company, at its option, may redeem the
Securities, in whole or in part, at any time on or after May 15,
1999 upon notice as hereinafter prescribed, at a redemption price
equal to 100% of the principal amount thereof, together with
accrued interest to the redemption date; provided, however, that
the Securities may not be so redeemed on a or before May 15,
2000, unless the Closing Price (as defined in Section 4(c)(v) of
these Terms and Conditions) per share of Common Stock of the
Company on twenty of the thirty consecutive days on which there
was such a price ending five days prior to the initial
publication of the notice of such redemption equals or exceeds
140% of the Conversion Price then in effect. In the event of a
partial redemption, the Securities to be redeemed will be
selected by the Fiscal Agent not more than 75 days before the
date fixed for redemption by such method as the Fiscal Agent
shall deem fair and appropriate. Provisions of this Security that
PAGE
apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Fiscal Agent shall
notify the Company promptly of the Securities or portions of
Securities to be called for redemption.
(b) If, at any time, the Company shall determine that
as a result of any change in or amendment to the laws or any
regulations or rulings of the United States or any political
subdivision or taxing authority thereof or therein affecting
taxation, or any amendment to, or change in, an official
application or interpretation of such laws, regulations or
rulings, which amendment or change is announced or becomes
effective on or after May 9, 1997, the Company has or will become
obligated to pay to the holder of any Security (other than the
Registered Securities) or coupon Additional Amounts and such
obligation cannot be avoided by the Company taking reasonable
measures available to it, then the Company may, at its election
exercised at any time when such conditions continue to exist,
redeem such Securities as a whole but not in part, upon notice as
hereinafter prescribed, at a redemption price equal to 100% of
the principal amount, together with accrued interest, if any, to
the date fixed for redemption; provided that no such notice of
redemption shall be given earlier than 90 days prior to the
earliest date on which the Company would be obligated to pay such
Additional Amounts were a payment in respect of such Securities
then due; and provided further that, at the time such notice is
given, such obligations to pay such Additional Amounts remains in
effect.
Prior to any redemption of the Securities pursuant to the
preceding paragraph, the Company shall provide the Fiscal Agent
with one or more certificates (signed by the President or any
Vice President and the Treasurer or the Secretary) of the Company
on which the Fiscal Agent may conclusively rely to the effect
that the Company is entitled to redeem such Securities pursuant
to such paragraph and that the conditions precedent to the right
of the Company to redeem such Securities pursuant to such
paragraph have occurred and a written opinion of counsel (who may
be an employee of the Company or the Guarantor) stating that all
legal conditions precedent to the right of the Company to redeem
such Securities pursuant to such paragraph have occurred.
(c) Except as set forth in the next succeeding
paragraph, the Company shall redeem the Bearer Securities as a
whole but not in part, upon notice as hereinafter prescribed, at
100% of their principal amount, together with interest accrued to
the date fixed for redemption, less applicable withholding taxes,
if any, plus any applicable Additional Amounts payable, in the
event that the Company determines that payment of principal of,
premium, if any, or interest on a Bearer Security or a coupon
appertaining thereto made outside the United States by the
Company or a paying agent, based on a written opinion of counsel,
would under any present or future laws or regulations of the
United States be subject to any certification, identification or
information reporting requirement with regard to the nationality,
residence or identity of a beneficial owner of a Bearer Security
or a coupon appertaining thereto who is a United States Alien
(other than a requirement (a) that would not be applicable to a
payment made by the Company or any one of its paying agents (i)
directly to the beneficial owner or (ii) to a custodian, nominee
PAGE
or other agent of the beneficial owner, or (b) that can be
satisfied by the custodian, nominee or other agent certifying
that the beneficial owner is a United States Alien, provided,
however, in each case referred to in clauses (a)(ii) and (b),
payment by such custodian, nominee or other agent of the
beneficial owner is not otherwise subject to any such
requirement). The Company shall make such determination on the
basis of a written opinion of counsel and will notify the Fiscal
Agent thereof in writing as soon as practicable, stating in the
notice the effective date of such certification, identification,
or information reporting requirement and the dates within which
the redemption shall occur, and the Fiscal Agent shall give
prompt notice thereof to the holders of the Securities in
accordance with the Fiscal Agency Agreement. The Company shall
determine the redemption date by notice to the Fiscal Agent at
least 75 days before the redemption date, unless shorter notice
is acceptable to the Fiscal Agent. Such redemption of the Bearer
Securities must take place on such date, not later than one year
after the publication of the initial notice of the Company's
determination of the existence of such certification,
identification or information reporting requirement. The Company
shall not so redeem the Bearer Securities, however, if the
Company, based on a written opinion of counsel, determines not
less than 30 days prior to the date fixed for redemption, that no
such payment would be subject to any requirement described above,
in which case the Company shall notify the Fiscal Agent, which
shall give prompt notice of that determination in accordance with
the Fiscal Agency Agreement and any earlier redemption notice
shall thereupon be revoked and of no further effect.
Notwithstanding the next preceding paragraph, if and so long
as the certification, identification or information reporting
requirement referred to in the next preceding paragraph would be
fully satisfied by payment of United States withholding, backup
withholding or similar taxes, the Company may elect, prior to
publication of the notice of redemption and in lieu of redemption
of the Bearer Securities, to have the provisions of this
paragraph apply in lieu of the provisions of the next preceding
paragraph. In that event, the Company will pay such Additional
Amounts (without regard to Section 2 hereof) as are necessary in
order that, following the effective date of such requirements,
every net payment made outside the United States by the Company
or a paying agent of the principal of, premium, if any, and
interest on a Bearer Security or a coupon appertaining thereto to
a holder who is a United States Alien (without regard to a
certification, identification or information reporting
requirement as to the nationality, residence or identity of such
holder), after deduction for United States withholding, backup
withholding or similar taxes (other than a tax (i) that would not
be applicable in the circumstances referred to in the
parenthetical clause of the first sentence of the next preceding
paragraph or (ii) are imposed as a result of presentation of such
Bearer Security or coupon for payment more than 10 days after the
date on which such payment becomes due and payable or on which
payment thereof is duly provided for, whichever occurs later),
will not be less than the amount provided in the Bearer Security
or the related coupon to be then due and payable. If the Company
elects to pay such Additional Amounts and as long as it is
obligated to pay such Additional Amounts, the Company may
subsequently redeem the Bearer Securities, at any time, in whole
PAGE
but not in part, upon not more than 60 days nor less than 30 days
notice, given as hereinafter prescribed, at 100% of their
principal amount, plus accrued interest to date fixed for
redemption and Additional Amounts, if any.
(d) Each Security is subject to redemption in whole or
in part (which shall be in a principal amount hereof which is
U.S. $1,000 or an integral multiple thereof) at the option of the
holder thereof on any Holder Redemption Date (as defined below)
at a redemption price equal to 100% of the principal amount
thereof, together with accrued interest, if a Redemption Event
shall occur or have occurred. For purposes hereof a "Redemption
Event" shall have occurred if the Company's Common Stock (or
other equity securities into which the Securities are then
convertible) is neither listed for trading on a United States
national securities exchange nor approved for trading on an
established automated over-the-counter trading market in the
United States. The "Holder Redemption Date" with respect to any
Redemption Event shall be the ninetieth day after the later of
the Exchange Date or the date a Redemption Event has occurred.
Notwithstanding the fact that a Security or a portion
thereof is called for redemption by the Company, each holder of a
Security desiring to exercise the option for redemption set forth
in this Section 3(d) shall, as a condition to such redemption, on
or before the close of business on the fifth day prior to the
Holder Redemption Date, surrender the Security to be redeemed in
whole or in part together with the redemption notice hereon duly
executed at the place or places specified in the notice required
by Section 3(e) and otherwise comply with the provisions of
Section 3(f). A holder of a Security who has tendered a
redemption notice (i) will be entitled to revoke its election by
delivering a written notice of such revocation together with the
holder's non-transferable receipt for such Security to the office
or agency of the Company designated as the place for the payment
of the Securities to be so redeemed on or before the Holder
Redemption Date and (ii) will retain the right to convert its
Securities into shares of Common Stock of the Company to the
extent set forth in Section 4.
(e) Notice of redemption will be given by publication
in Authorized Newspapers (as defined in the Fiscal Agency
Agreement) on a Business Day (as defined in the Fiscal Agency
Agreement) in New York City and in London and, if the Securities
are listed on the Luxembourg Stock Exchange and so long as listed
thereon, in an Authorized Newspaper in Luxembourg, or, if either
publication in London or Luxembourg is not practical, in an
Authorized Newspaper in any country in Western Europe, and by
mail to holders of Registered Securities, all as provided in the
Fiscal Agency Agreement. In the case of a redemption in whole at
the option of the Company, notice will be given once not more
than 60 nor less than 30 days prior to the date fixed for
redemption. In the case of a partial redemption at the option of
the Company, notice will be given twice, the first such notice to
be given not more than 75 nor less than 60 days prior to the date
fixed for redemption and the second such notice to be given not
more than 60 nor less than 30 days prior to the date fixed for
redemption. In the case of a redemption by the Company at the
option of a holder of a Security pursuant to Section 3(d) hereof,
notice will be given by the Fiscal Agent setting forth the
PAGE
information described below not later than 10 days after the
later of the Exchange Date or the occurrence of a Redemption
Event. Neither the failure to give notice nor any defect in any
notice given to any particular holder of a Security shall affect
the sufficiency of any notice with respect to other Securities.
Notices relating to the redemption of Securities whether at
the option of the Company or the holder hereof shall specify: the
date fixed for redemption or the Holder Redemption Date, as the
case may be; the redemption price; the date the conversion
privilege expires; the place or places of payment; and that
payment will be made upon presentation and surrender of the
Securities to be redeemed, together, in the case of a Bearer
Security, with all appurtenant coupons, if any, maturing
subsequent to the date fixed for redemption; and that interest
accrued to the date fixed for redemption (unless the redemption
date is an interest payment date) will be paid as specified in
such notice; and that, on and after said date, interest thereon
will cease to accrue. In the case of a redemption by the Company
at the option of the holder of a Security pursuant to Section
3(d), the notices given by the Fiscal Agent informing a holder of
such holder's entitlement to redeem shall also specify that a
holder electing redemption will be entitled to revoke its
election by delivering a written notice of such revocation,
together with the holder's non-transferable receipt for such
Security, to the agency designated by the Company as the place
for the payment of the Securities to be so redeemed not later
than the fifth day prior to the Holder Redemption Date. In the
case of a redemption in part at the option of the Company,
notices shall specify the aggregate principal amount of
Securities to be redeemed and the aggregate principal amount of
Securities outstanding after such partial redemption. The first
notice shall specify the last date on which exchanges or
transfers of Securities may be made, and the second notice shall
specify the serial numbers of the Securities and the portions
thereof called for redemption. In the case of a redemption in
whole or in part by the Company, notices shall specify the date
the conversion privilege expires in accordance with Section 4(a)
hereof. Such notices shall also state that the conditions
precedent, if any, to such redemption have occurred.
(f) If (i) notice of redemption has been given in the
manner set forth in Section 3(e) hereof with respect to
Securities to be redeemed at the option of the Company, or (ii)
notice of redemption has been given by the holder of a Security
to be redeemed pursuant to Section 3(d) hereof, the Securities so
to be redeemed shall become due and payable on the applicable
redemption date specified in such notice and upon presentation
and surrender of the Securities at the place or places specified
in the notices given by the Company with respect to such
redemption, together in the case of Bearer Securities with all
appurtenant coupons, if any, maturing subsequent to the
redemption date and any related matured defaulted coupons, the
Securities shall be paid and redeemed by the Company, at the
places and in the manner and currency herein specified and at the
redemption price together with accrued interest, if any, to the
redemption date; provided, however, that interest due in respect
of coupons maturing on or prior to the redemption date shall be
payable only upon the presentation and surrender of such coupons
(at an office or agency located outside of the United States of
PAGE
America). If any Bearer Security surrendered for redemption
shall not be accompanied by all appurtenant coupons maturing
after the redemption date and any related mature defaulted
coupons, such Security may be paid after deducting from the
amount otherwise payable an amount equal to the face amount of
all such missing coupons, or the surrender of such missing coupon
or coupons may be waived by the Company and the Fiscal Agent if
they are furnished with such security or indemnity as they may
require to save each of them and each other paying agency of the
Company harmless. From and after the redemption date, if monies
for the redemption of Securities shall have been available at the
office of the Fiscal Agent for redemption on the redemption date,
the Securities shall cease to bear interest, the coupons for
interest appertaining to Bearer Securities maturing subsequent to
the redemption date shall be void, the only right of the holders
of such Securities shall be to receive payment of the redemption
price together with accrued interest to the redemption date. If
monies for the redemption of the Securities are not made
available by the Company for payment until after the redemption
date, the Securities shall not cease to bear interest until such
monies have been so made available.
(g) Accrued interest payable on any Registered
Security that is redeemed will be payable against surrender of
such Registered Security in the manner described in this Section
with respect to payments of principal on Registered Securities,
except that interest on any Registered Security that is redeemed
on a date after the close of business on any interest Record Date
and on or before the next succeeding Interest Payment Date, shall
be paid to the holder of record of such Registered Security on
the interest Record Date.
4. Conversion.
(a) Subject to and upon compliance with the provisions
of the Fiscal Agency Agreement, a holder of Securities is
entitled, at its option, at any time on or after the date that is
the later of (i) the Exchange Date and (ii) the date of the
effectiveness of the Registration Statement to be filed by the
Company under the Securities Act relating to the Common Stock
issuable upon conversion of the Restricted Securities (the
"Registration Date") and on or before the close of business on
April 30, 2004 or in the case of a Security or portion thereof
that is called for redemption by the Company, or the holder
thereof elects to have such Security or portion thereof redeemed
by the Company pursuant to Section 3(d) hereof, then in respect
of such Security or such portion thereof until and including, but
(unless the Company and the Guarantor default in making the
payment due upon redemption) not after, the close of business on
the 15th day next preceding the date fixed for redemption (or if
such date is not a business day, as described in Section 11
hereof in New York City, then the next succeeding business day),
to convert such Security (or any portion of the principal amount
thereof which is U.S. $1,000 or an integral multiple thereof), at
the principal amount thereof, or of such portion, into fully paid
and nonassessable shares ("Conversion Shares") (calculated as to
each conversion to the nearest 1/1000 of a share) of common
stock, par value $.10 per share of the Company ("Common Stock"),
at a Conversion Price equal to U.S. $31.415 aggregate principal
PAGE
amount of Securities for each Conversion Share (the "Conversion
Price") (or at the current adjusted Conversion Price if an
adjustment has been made as provided herein) by surrender of the
Security, or in the case of a Security submitted for redemption
pursuant to Section 3(d) hereof, satisfactory evidence of such
submission, together with (i) if a Bearer Security, all unmatured
coupons and any matured coupons in default appertaining thereto,
and if a Registered Security (if so required by the Company or
the Fiscal Agent), instruments of transfer in form satisfactory
to the Company and the Fiscal Agent, duly executed by the
registered holder or by his duly authorized attorney, and (ii)
the conversion notice hereon duly executed (x) at the principal
corporate trust office of the Fiscal Agent, or at such other
office or agency of the Company as may be designated by it for
such purpose in New York City, or (y) subject to any laws or
regulations applicable thereto and subject to the right of the
Company to terminate the appointment of any such conversion
agency, at the office of the Principal Paying Agent in London,
and if the Securities are listed on the Luxembourg Stock Exchange
and so long as listed thereon, Bankers Trust Luxembourg, S.A, ▇▇
▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇▇▇, ▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ or at
such other offices or agencies as the Company may designate.
In lieu of issuing shares of Common Stock upon such
conversion, the Company may elect, in its sole discretion, to pay
cash (including Additional Amounts, if any) in respect of all or
a portion of the shares of Common Stock otherwise issuable upon
such conversion based on the Market Price of such shares, all as
provided in the Fiscal Agency Agreement.
(b) In the case of a conversion after the close of
business on a Record Date next preceding any interest payment
date and before the opening of business on such interest payment
date, the holder of record of a Registered Security at such
Record Date is to receive an installment of interest on the
interest payment date. No payment or adjustment shall be made
upon any conversion for dividends on the Common Stock delivered
on conversion. Except as set forth in the first sentence of this
subsection (b), accrued interest from the immediately preceding
interest payment date until the date of conversion (together with
any Additional amounts, if any, thereon) will be paid to the
holder within five business days after presentment for conversion
on account of any interest accrued on the Securities surrendered
for conversion, except that interest on Registered Securities
surrendered for conversion after the close of business on a
Record Date and before the opening of business on the next
succeeding interest payment date shall be paid in an amount equal
to the interest payable on such interest payment date on the
principal amount being surrendered for conversion. No fractions
of shares or scrip representing fractions of shares will be
issued or delivered on conversion, but instead of any fractional
interest the Company shall pay a cash adjustment as provided in
the Fiscal Agency Agreement. Such conversion shall be so
effected by the Company, except payment of accrued interest
(together with Additional Amounts, if any, thereon) which will be
paid by the Paying Agent in accordance with the provisions for
payment of interest (together with Additional Amounts, if any,
thereon) set forth herein.
PAGE
(c) (i) In case at any time the Company shall pay or
make a dividend or other distribution on any class of capital
stock of the Company in shares of Common Stock, the Conversion
Price in effect at the opening of business on the day following
the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced so
that the same shall equal the price determined by multiplying
such Conversion Price by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the
total number of shares of Common Stock constituting such dividend
or other distribution, such adjustment to become effective
immediately after the opening of business on the day following
the date fixed for such determination.
(ii) In the case at any time the Company shall (A)
subdivide its outstanding shares of Common Stock, (B) combine its
outstanding shares of Common Stock into a smaller number of
shares, or (C) issue by reclassification of its shares of Common
Stock (including any such reclassification in connection with a
consolidation or merger in which the Company is the continuing
corporation) any shares of capital stock, the Conversion Price in
effect at the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the
holder of any Security surrendered for conversion after such time
shall be entitled to receive the aggregate number and kind of
shares which, if such Security had been converted immediately
prior to such time, the holder would have owned upon such
conversion and been entitled to receive upon such subdivision,
combination or reclassification. Such adjustment shall become
effective immediately after the effectiveness of such
subdivision, combination or reclassification. Such adjustment
shall be made successively whenever any event listed above shall
occur.
(iii) In case at any time the Company shall
fix a record date for the issuance of rights or warrants to all
holders of its Common Stock entitling them to subscribe for or
purchase Common Stock at a price per share less than the current
market price per share of Common Stock (determined as provided in
paragraph (v) of this subsection (c)) on such record date, the
Conversion Price in effect at the opening of business on the day
following such record date shall be reduced so that the same
shall equal the price determined by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding at the close of business on
such record date plus the number of shares of Common Stock which
the aggregate of the offering price of the total number of shares
so offered for subscription or purchase would purchase at such
current market price per share of Common Stock and the
denominator shall be the number of shares of Common Stock
outstanding at the close of business on such record date plus the
number of shares so offered for subscription or purchase, such
reduction to become effective immediately after the opening of
business on the day following such record date. Such reduction
shall be made successively whenever such a record date is fixed;
and in the event that such rights or warrants are not so issued,
the Conversion Price shall again be adjusted to be the Conversion
PAGE
Price which would then be in effect if such record date had not
been fixed.
(iv) In case at any time the Company shall fix a
record date for the making of a distribution, by dividend or
otherwise, to all holders of its shares if Common Stock, of
evidences of its indebtedness or assets (including securities,
but excluding any dividend or distribution referred to in
paragraph (i) of this subsection (c), any rights or warrants
referred to in paragraph (iii) of this subsection (c), and any
dividend or distribution paid in cash out of the retained
earnings of the Company), then in each such case the Conversion
Price in effect after such record date shall be determined by
multiplying the Conversion Price in effect immediately prior to
such record date by a fraction, of which numerator shall be the
total number of outstanding shares of Common Stock multiplied by
the current market price per share of Common Stock (determined as
provided in paragraph (v) of this subsection (c)) on such record
date, less the fair market value (as determined by the Board of
Directors of the Company, whose determination shall be conclusive
and described in a statement filed with the Fiscal Agent) of the
portion of the assets or evidences of indebtedness so to be
distributed, and of which denominator shall be the total number
of outstanding shares of Common Stock multiplied by such current
market price per share of Common Stock. Such adjustment shall be
made successively whenever such a record date is fixed; and in
the event that such distribution is not so made, the Conversion
Price shall again be adjusted to be the Conversion Price which
would then be in effect if such record date has not been fixed.
(v) For the purpose of any computation under
paragraphs (iii) and (iv) of this subsection (c), the current
market price per share of Common Stock on any date shall be
deemed to be the average of the Closing Prices (as defined below)
for the 15 consecutive trading days upon which the principal
trading market for the Common Stock is open and selected by the
Company commencing not less than 20 nor more than 30 days before
the day in question. The _Closing Price_ for any day shall be
the last reported sales prices regular way 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 American Stock Exchange or, if the Common Stock is not or
admitted to trading on such exchange, on the principal national
securities exchange on which the Common Stock is listed or
admitted to trading or, if not listed or admitted to trading on
any national securities exchange, the closing sale price quoted
on the Nasdaq National Market, or if not so quoted, as determined
by the Company.
(vi) The Company may make such adjustments in the
Conversion Price, in addition to those required by paragraphs
(i), (ii) and, (iii) selected by the Company of this section, as
it considers to be advisable in order that any event treated for
United States Federal income tax purposes as a dividend of stock
or stock rights shall not be taxable to the recipients.
(vii) No adjustment in the Conversion Price
shall be required unless such adjustment would require an
increase or decrease of at least U.S. $.25 in such Conversion
Price; provided, however, that any adjustment which by reason of
PAGE
this paragraph (vii) is not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All
calculations under this subsection (c) shall be made to the
nearest cent or to the nearest 1/1000 of a share, as the case may
be.
(d) Whenever the Conversion Price is adjusted and in
the event of certain other corporate actions, as herein provided,
the Company shall give notice, all as provided in the Fiscal
Agency Agreement.
(e) The Company shall file, as soon as practicable
following the Closing Date, a shelf registration statement with
the United States Securities and Exchange Commission covering the
resale of the shares of Common Stock issuable upon conversion of
the Securities ("Registrable Securities"); provided that any
holder of any Securities or Registrable Securities shall not
sell any shares pursuant to such registration statement unless
and until it provides to the Company such information as the
Company may reasonably request for use in connection with the
identification of such holder as a selling stockholder in such
registration statement, or any prospectus included therein, and
no such sale shall be made by such holder pursuant to such
registration statement unless and until such information is
included by the Company in such registration statement or
prospectus. The Company shall in good faith use its best efforts
and at its cost to cause such registration statement to be
declared effective as promptly as practicable thereafter and to
include in such registration statement the information provided
by a holder as a selling stockholder and shall notify the Fiscal
Agent of the effectiveness thereof and agrees to use its best
efforts to (i) cause all registrations with, and to obtain any
approvals by, any governmental authority under any Federal or
state law of the United States that may be required in connection
with the conversion of the Securities into Common Stock and the
resale thereof, (ii) maintain the effectiveness of such
registrations until the date that Rule 144(k) under the
Securities Act is available for the resale of the shares of
Common Stock issuable upon conversion of the Restricted
Securities (or other securities issuable upon conversion of the
Securities) and (iii) to list the shares of Common Stock required
to be issued or delivered upon conversion of Securities (or other
securities issuable upon conversion of the Securities) prior to
such issue or delivery on such national securities exchange or
automated over-the-counter trading market where such Common Stock
is listed or traded at the time of such delivery. The Company and
the Guarantor, jointly and severally, shall, without limitation
as to time, indemnify and hold harmless, to the fullest extent
permitted by law, each holder of Registrable Securities, the
officers, directors and agents and employees of each of them,
each person who controls such holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended) and the officers, directors,
agents and employees of any such controlling person, from and
against all losses, claims, damages, liabilities, costs
(including, without limitation, the costs of preparation and
attorneys' fees) and expenses (collectively, "Losses"), as
incurred, arising out of or based upon any untrue or alleged
untrue statement of a material fact contained in any such
registration statement, or related prospectus or in any amendment
PAGE
or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are based
solely upon information, if any, furnished in writing to the
Company by such holder expressly for use therein; provided, that
the Company shall not be liable to any holder of Registrable
Securities to the extent that any such Losses arise out of or are
based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in any preliminary prospectus
if either (a)(i) such holder failed to send or deliver as
required a copy of the final prospectus with or prior to the
delivery of written confirmation of the sale by such holder of a
Registrable Security to the person asserting the claim from which
such Losses arise and (ii) the prospectus would have completely
corrected such untrue statement or alleged untrue statement or
such omission or alleged omission; or (b)(i) such untrue
statement or alleged untrue statement, omission or alleged
omission is completely corrected in an amendment or supplement to
the prospectus and (ii) having previously been furnished by or on
behalf of the Company with copies of the prospectus as so amended
or supplemented, such holder thereafter fails to deliver as
required such prospectus as so amended or supplemented, prior to
or concurrently with the sale of a Registrable Security to the
person asserting the claim from which such Losses arise. Promptly
after receipt by an indemnified party under this Paragraph (e) of
notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be
made against the Company or the Guarantor under this Paragraph
(e) notify the Company and the Guarantor in writing of the claim
or the commencement of that action; provided, however, that the
failure to notify the Company or the Guarantor shall not relieve
it from any liability which it may have to an indemnified party
otherwise than under this Paragraph (e). If any such claim or
action shall be brought against an indemnified party, the Company
and the Guarantor shall be entitled to participate therein and,
to the extent that they wish, to assume the defense thereof.
After notice from the Company or the Guarantor to the indemnified
party of its election to assume the defense of such claim or
action, neither the Company nor the Guarantor shall be liable to
the indemnified party under this Paragraph (e) for any legal or
other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, if the
defendants in any such action include both an indemnified party
and the Company or the Guarantor and the indemnified party shall
have reasonably concluded that there may be legal defenses
available to it and for other indemnified parties that are
different from or additional to those available to the Company or
the Guarantor, the indemnified party or parties under this
Paragraph (e) shall have the right to employ not more than one
counsel to represent them and, in that event, the reasonable fees
and expenses of not more than one such separate counsel shall be
paid by the Company or the Guarantor. Neither the Company nor
the Guarantor shall be liable for any settlement effected without
its written consent of any claim or action.
(f) The Company shall, at all times, have reserved and
available, free from preemptive rights, out of its authorized but
unissued shares of Common Stock, for the purpose of effecting the
conversion of Securities, the full number of shares of Common
PAGE
Stock then issuable upon the conversion of all Securities (based
on the aggregate principal amount of Securities outstanding).
The Company covenants that all shares of Common Stock which may
be issued or delivered upon conversion of Securities will upon
issuance be fully paid and nonassessable.
(g) In case of any consolidation with, or merger of
the Company into, any other corporation, or in case of any merger
of another corporation 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 in case of any sale or transfer, in one or more
transactions, of all or substantially all of the assets of the
Company (which shall not include the sale or transfer of any
portion of the assets of the Company to any corporation or
corporations if each of such corporations immediately following
such transfer is at least 51% owned, directly or indirectly, by
the Company, provided that such sale or transfer does not result
in the reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company), the
corporation 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 Fiscal Agent an amendment to the
Fiscal Agency Agreement providing that the holder of each
Security shall have the right during the period such Security
shall be convertible as specified in section (a) hereof to
convert such Security only into the kind and amount of
securities, cash and other property receivable upon such
consolidation, merger, sale or transfer 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, sale or transfer assuming, if such
consolidation, merger, sale or transfer is prior to the period
such Security shall be convertible as specified in subsection (a)
hereof, that the Securities were convertible at such time at the
initial Conversion Price as adjusted from May 9, 1997 to such
time pursuant to paragraphs (i), (ii), (iii), (iv) and (vi) of
subsection (c) hereof. Such amendment shall provide for
adjustments which, for events subsequent to the effective date of
such amendment, shall be as nearly equivalent as may be
practicable to the adjustments provided for herein. The above
provisions of this subsection shall similarly apply to successive
consolidations, mergers, sales or transfers.
5. Events of Default. In the event that any of the
following ("Events of Default_) shall occur and be continuing:
(a) the Company shall fail to pay when due the
principal of, or premium, if any, on any of the Securities
whether at maturity or upon redemption or otherwise; or
(b) the Company shall fail to pay any installment of
interest or any required payment of any Additional Amounts (as
described in Section 2 hereof) on any of the Securities for a
period of 10 days after the date when due; or
(c) the Company shall fail duly to perform or observe
any other term, covenant or agreement contained in any of the
Securities or in the Fiscal Agency Agreement or the Guarantor
shall fail to perform or observe any term, covenant or agreement
PAGE
contained in a Guarantee endorsed on any of the Securities or in
the Fiscal Agency Agreement, for a period of 60 days after the
date on which written notice of such failure, requiring the
Company or the Guarantor, as the case may be, to remedy the same,
shall first have been given to the Company and the Fiscal Agent
by the holders of at least 25% in aggregate principal amount of
the Securities at the time outstanding; provided, however, that
in the event the Company or the Guarantor shall within the
aforesaid period of 60 days commence legal action in a court of
competent jurisdiction seeking a determination that the Company
or the Guarantor, as the case may be, had not failed duly to
perform or observe the term or terms, covenant or covenants or
agreement or agreements specified in the aforesaid notice, such
failure shall not be an Event of Default unless the same
continues for a period of 10 days after the date of any final
determination to the effect that the Company or the Guarantor had
failed to duly perform or observe one or more of such terms,
covenants or agreements; or
(d) a court having jurisdiction in the premises shall
enter a decree or order for relief in respect of the Company or
the Guarantor in an involuntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other
similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of the Company or the Guarantor or for any
substantial part of the property of either of them or ordering
the winding-up or liquidation of the affairs of either of them
and such decree or order shall remain unstayed and in effect for
a period of 20 consecutive days; or
(e) the Company or the Guarantor shall commence a
voluntary case or proceeding under any applicable bankruptcy,
insolvency, reorganization or other similar law now or hereafter
in effect, or shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to
the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or
similar official) of the Company or the Guarantor, as the case
may be, or for any substantial part of its property, or shall
make any general assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts as they
become due or shall take any corporate action in furtherance of
any of the foregoing; or
(f) an event of default, as defined in any indenture
or instrument evidencing or under which the Company shall have at
least $15,000,000 outstanding (or its equivalent in another
currency), in aggregate principal amount of indebtedness for
borrowed money, shall happen and be continuing and such default
shall involve the failure to pay the principal of such
indebtedness (or any part thereof), when due and payable after
the expiration of any applicable grace period with respect
thereto, or such indebtedness shall have been accelerated so the
same shall be or become due and payable prior to the date on
which the same would otherwise have become due and payable, and
failure to pay shall not have been cured by the Company within 20
days after such failure or such acceleration shall not be
rescinded or annulled within 20 days after notice thereof shall
have first been given to the Company; provided that if such event
PAGE
of default under such indenture or instrument shall be remedied
or cured by the Company or waived by the holders of such
indebtedness, then the Event of Default hereunder by reason
thereof shall be deemed likewise to have been thereupon remedied,
cured or waived without further action upon the part of any of
the holders of Securities; then the holder of this Security may,
at such holder's option, declare the principal of this Security
and the interest accrued hereon (and Additional Amounts under
Section 2 hereof, if any, thereon) to be due and payable
immediately by written notice to the Company, the Guarantor and
the Fiscal Agent, and if any such Event of Default shall continue
at the time of receipt of such written notice, the principal of
this Security and the interest accrued hereon (and Additional
Amounts, if any, hereon) shall become immediately due and
payable, subject to the proviso of subsection (c) of this Section
5. Upon payment of such amount of principal, premium, if any, and
interest (and Additional Amounts pursuant to Section 2 hereof, if
any), all of the Company's obligations in respect of payment of
principal of, premium, if any, and interest on (and Additional
Amounts, if any, on) this Security shall terminate. Interest on
overdue principal, premium, if any, and interest (and Additional
Amounts, if any) shall accrue from the date on which such
principal, premium, if any, and interest (and Additional Amounts,
if any) were due and payable to the date such principal, premium,
if any, and interest (and Additional Amounts, if any) are paid or
duly provided for, at the rate borne by the Securities (to the
extent payment of such interest shall be legally enforceable).
Any acceleration of this Security pursuant to this Section 5
shall not affect the subordination provisions of Section 7
hereof.
If an Event of Default, as defined in this Section 5, with
respect to the Securities, or an event which would, with the
passing of time or the giving of notice, or both, be an Event of
Default, shall occur and be continuing, the Company or the
Guarantor, as the case may be, shall within five Business Days of
becoming aware thereof notify the Company or the Guarantor, as
the case may be, and the Fiscal Agent in writing of such Event of
Default, and the Fiscal Agent shall thereupon promptly notify all
of the holders of the Securities of such Event of Default.
6. Merger, Consolidation, Sale, Conveyance or Assumption.
(a) The Company will not merge or consolidate with, or
sell or convey all or substantially all of its assets to, any
other corporation, unless (i) either (A) the Company shall be the
surviving corporation in the case of a merger, (B) the assets
sold or conveyed shall be owned by a corporation or corporations
each of which, immediately following such sale or conveyance, is
at least 51% owned, directly or indirectly, by the Company,
provided that such sale or conveyance does not result in the
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company, or (C) (I) the
surviving, resulting or transferee corporation shall expressly
assume the due and punctual payment (including Additional Amounts
pursuant to Section 2 hereof, if any) of all the Securities,
according to their tenor, and the due and punctual performance of
all of the covenants and obligations of the Company under the
Securities, the coupons and the Fiscal Agency Agreement and (II)
the Fiscal Agent shall have received the documentation required
PAGE
in the context by the Fiscal Agency Agreement, (ii) the
surviving, resulting or transferee corporation, if not organized
and validly existing under the laws of the United States, shall
expressly agree to make payments under the Securities free of any
deduction or withholding for any and all then existing or future
withholding taxes, levies, imposts and charges whatsoever imposed
by or for the account of the jurisdiction where such successor
corporation is generally subject to taxation (or any political
subdivision or taxing authority thereof or therein) in a manner
equivalent to that set forth herein, subject to the exceptions
contained in such forms of the Securities, and (iii) the Company
or such successor corporation, as the case may be, shall not,
immediately after such merger, consolidation, sale or conveyance,
be in default in the performance of any covenants or obligations
of the Company under the Securities or the Fiscal Agency
Agreement.
(b) Upon any merger, consolidation, sale, conveyance
or assumption as provided in clause (i)(C) of Section 6(a), the
successor or assuming corporation shall succeed to and be
substituted for, and may exercise every right and power of and be
subject to all the obligations of, the Company under the
Securities and Fiscal Agency Agreement, with the same effect as
if such successor or assuming corporation had been named as the
Company therein and herein and the Company shall be released from
its liability as obligor under the Securities and Fiscal Agency
Agreement; provided that any successor or assuming corporation
shall have the right to redeem the Securities pursuant to Section
3(b) hereof only as a result of circumstances which occur
subsequent to such merger, consolidation, sale, conveyance or
assumption and as a result of which the Company would have had
such right if the Company had remained the obligor on the
Securities.
7. Agreement of Subordination of Securities.
(a) The Company, for itself, its successors and
assigns, covenants and agrees, and each holder of Securities and
coupons by his acceptance thereof, likewise covenants and agrees,
that the payment of the principal of, premium, if any, and
interest and Additional Amounts (pursuant to Section 2 hereof) on
each and all of the Securities and coupons is hereby expressly
subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the prior payment in full of all
Senior Indebtedness of the Company (as defined below).
"Senior Indebtedness of the Company" or "Senior
Indebtedness" shall mean the principal of, premium, if any, and
interest on and all other amounts due on or with respect to the
following whether outstanding at the date of execution of the
Fiscal Agency Agreement or thereafter incurred or created:
(i) indebtedness of the Company for money borrowed by
the Company (excluding the Securities, but including, without
limitation, purchase money obligations), whether or not evidenced
by debentures, bonds, notes or other corporate debt securities or
similar instruments issued by the Company;
(ii) obligations to reimburse any bank or other person
in respect of amounts paid under letters of credit;
PAGE
(iii) leases of real property, equipment or other
assets, which leases are capitalized in the Company's financial
statements in accordance with generally accepted accounting
principles;
(iv) commitment, standby and other fees due and payable
to financial institutions with respect to credit facilities
available to the Company;
(v) obligations of the Company under interest rate and
currency swaps, floors, caps or other similar arrangements
intended to hedge interest rates or currency exposure;
(vi) indebtedness secured by any mortgage, pledge, lien
or other encumbrance on property which is owned or held by the
Company subject to such mortgage, pledge, lien or other
encumbrance, whether or not the indebtedness secured thereby
shall have been assumed by the Company;
(vii) obligations of the Company constituting
guarantees of indebtedness of or joint obligations with another
or others which would be included in the preceding clauses (i),
(ii), (iii), (iv), (v) or (vi); and
(viii) modifications, renewals, extensions or
refundings of any of the indebtedness, leases, fees or
obligations referred to in the preceding clauses (i), (ii),
(iii), (iv), (v), (vi) or (vii), or debentures, notes or other
evidences of indebtedness issued in exchange therefor;
provided that Senior Indebtedness shall not include any
particular indebtedness, lease, fee, obligation, modification,
renewal, extension, refunding or exchanged securities if, under
the express provisions of the instrument creating or evidencing
the same, or pursuant to which the same is outstanding, such
indebtedness, lease, fee or obligation or such modification,
renewal, extension, refunding or exchanged security is stated to
be not superior in right to payment to the Securities.
(b) (i) In the event of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or
other similar proceedings in connection therewith, relative to
the Company or to its creditors, in their capacity as such
creditors, or to its property, or in the event of any proceedings
for voluntary liquidation, dissolution or other winding up of the
Company, whether or not involving insolvency or bankruptcy, or in
the event of any assignment for the benefit of creditors of the
Company or any marshalling of assets of the Company, then the
holders of Senior Indebtedness of the Company shall first be
entitled to receive payment in full of the principal of (and
premium, if any, on) and interest, including interest thereon
accruing after the commencement of any such proceeding, and other
amounts due on or with respect to, all Senior Indebtedness of the
Company before the holders of any of the Securities shall be
entitled to receive any payment on account of the principal of,
premium, if any, or interest and Additional Amounts (pursuant to
Section 2 hereof) on the Securities, and to that end the holders
of Senior Indebtedness of the Company shall be entitled to
receive for application in payment thereof any payment or
PAGE
distribution of any kind or character, whether in cash, property
or securities, which may be payable or deliverable in any such
proceedings in respect of the Securities, other than securities
of the Company as reorganized or readjusted or securities of the
Company or any other corporation provided for by a plan of
reorganization or readjustment, the payment of which is
subordinate, at least to the extent provided in this Section 7
with respect to the Securities, to the payment of all Senior
Indebtedness of the Company, provided that the rights of the
holders of Senior Indebtedness of the Company are not altered by
such reorganization or readjustment. For the purposes of this
Section 7, no consolidation, merger, conveyance or transfer made
pursuant to the provisions of Section 6 shall be deemed to be a
liquidation, reorganization, dissolution or other winding up of
the Company.
(ii) If under the circumstances set forth in paragraph
(i) of this subsection, and notwithstanding the provisions
thereof, any payment or distribution of assets of the Company of
any kind, whether in cash, property or securities (other than
securities of the Company as reorganized or readjusted or
securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment the payment of which
is subordinated, at least to the extent provided in this Section
7 with respect to the Securities, to the payment of all Senior
Indebtedness of the Company, provided that the rights of the
holders of Senior Indebtedness of the Company are not altered by
such reorganization or readjustment), shall be received by the
holders of the Securities before all Senior Indebtedness of the
Company is paid in full, such payment or distribution shall be
paid over to the holders of Senior Indebtedness of the Company,
ratably, for application to the payment of all Senior
Indebtedness of the Company remaining unpaid until all Senior
Indebtedness of the Company shall have been paid in full, after
giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness of the Company.
(iii) Upon any distribution of assets of the
Company referred to in this Section, the holders of Securities
shall be entitled to rely upon any final order or decree of a
court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are
pending, and the holders of Securities shall be entitled to rely
upon a certificate of the liquidating trustee or agent or other
person making any distribution to the holders of Securities for
the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness of
the Company 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 Section.
(c) (i) Upon the maturity of any Senior Indebtedness
of the Company by lapse of time, acceleration or otherwise, all
principal thereof (and premium, if any) and interest due thereon,
including interest thereon accruing after the commencement of any
proceeding of the type referred to in paragraph (i) of Section
7(b) above, and all other amounts due on or with respect thereto,
shall first be paid in full, or such payment duly provided for in
cash, before any payment, directly or indirectly, is made on
PAGE
account of the principal of, premium, if any, or interest and
Additional Amounts (pursuant to Section 2 hereof) on the
Securities or coupons.
(ii) Upon the happening of an event of default
with respect to any Senior Indebtedness of the Company, as
defined therein or in the instrument under which it is
outstanding permitting the holders to accelerate the maturity
thereof, then, unless and until such event of default shall have
been cured or waived or shall have ceased to exist, no payment
shall be made by the Company, directly or indirectly, on account
of the principal of, premium, if any, or interest and Additional
Amounts (pursuant to Section 2 hereof) on the Securities or
coupons.
(d) In case cash, securities or other property
otherwise payable or deliverable to the holders of the Securities
shall have been applied, pursuant to Section 7(b) or 7(c), to the
payment of Senior Indebtedness of the Company, then, upon the
payment in full of all Senior Indebtedness of the Company, the
holders of the Securities shall be subrogated to any rights of
any holders of Senior Indebtedness of the Company to receive any
further payment or distributions applicable to Senior
Indebtedness of the Company until the principal of, premium, if
any, and interest and Additional Amounts (pursuant to Section 2
hereof) on the Securities shall have been paid in full, and such
payments or distributions received by the holders of the
Securities and coupons, by reason of such subrogation, of cash,
securities or other property which otherwise would be paid or
distributed to the holders of Senior Indebtedness of the Company
shall, as between the Company and its creditors other than the
holders of Senior Indebtedness of the Company, on the one hand,
and the holders of the Securities, on the other hand, be deemed
to be a payment by the Company on account of Senior Indebtedness
of the Company and not on account of the Securities.
(e) No present or future holder of any Senior
Indebtedness of the Company shall be prejudiced in any way in the
right to enforce the subordination of the Securities by any act
or failure to act on the part of the Company. The provisions of
this Section are solely for the purpose of defining the relative
rights of the holders of Senior Indebtedness of the Company, on
the one hand, and the holders of the Securities, on the other
hand, against the Company and its assets, and nothing contained
in this Section shall impair, as between the Company and the
holder of any Security, the obligation of the Company, which is
unconditional and absolute, to pay to the holder thereof, the
principal thereof, premium, if any, and interest and Additional
Amounts (pursuant to Section 2 hereof) thereon as and when the
same shall become due and payable in accordance with the terms
thereof, or prevent the holder of any Security, upon default
hereunder or under such Security, from exercising all rights,
powers and remedies otherwise provided herein or therein or by
applicable law, all subject to the rights of the holders of
Senior Indebtedness of the Company under this Section to receive
cash, property or securities otherwise payable or deliverable to
the holders of the Securities and coupons.
(f) Nothing contained in this Section or in any of the
Securities shall prevent at any time, except under the conditions
PAGE
described in Sections 7(b) and (c) hereof or during the pendency
of any dissolution, winding up, liquidation or reorganization
proceedings therein referred to, the Company from making payments
at any time of principal of, premium, if any, or interest or
Additional Amounts (pursuant to Section 2 hereof) on the
Securities. Nothing contained in this Section shall prevent
conversions of Securities.
8. Replacement, Transfer and Exchange of Securities.
(a) In case any Security (including any coupons
appertaining thereto) shall at any time become mutilated,
destroyed, stolen or lost and such Security or evidence of the
loss, theft or destruction thereof (together with the indemnity
hereinafter referred to and such other documents or proof as may
be required) shall be delivered to the Fiscal Agent, a new
Security of like tenor and date with appropriate interest
coupons, if any, and having the Guarantee endorsed thereon will
be issued by the Company in exchange for the Security so
mutilated, or in lieu of the Security so destroyed, stolen or
lost, but, in the case of a destroyed, stolen or lost Security
only upon receipt of evidence satisfactory to the Fiscal Agent,
the Company and the Guarantor that such Security was destroyed,
stolen or lost, and if required by the Fiscal Agent, the Company
or the Guarantor, upon receipt also of indemnity satisfactory to
the Fiscal Agent, the Company and the Guarantor. All expenses
and reasonable charges associated with procuring such indemnity
and with the preparation, authentication and delivery of a new
Security shall be borne by the owner of the Security so
mutilated, destroyed, stolen or lost.
(b) As provided in the Fiscal Agency Agreement and
subject to certain limitations therein set forth, Bearer
Securities (with all unmatured and matured defaulted coupons
appertaining thereto) are exchangeable at, subject to applicable
laws and regulations, the offices of the paying agencies in
London and, if the Securities are listed on the Luxembourg Stock
Exchange and so long as listed thereon, Luxembourg or as
designated by the Company for such purpose pursuant to the Fiscal
Agency Agreement, for an equal aggregate principal amount of
Registered Securities in the denominations of $1,000 and integral
multiples thereof without coupons and/or Bearer Securities of
authorized denominations, and Registered Securities are
exchangeable at the office of the Fiscal Agent in New York City
or, subject to applicable laws and regulations, the offices of
the paying agencies in London and, if the Securities are listed
on the Luxembourg Stock Exchange and so long as listed thereon,
Luxembourg or as designated by the Company for such purpose
pursuant to the Fiscal Agency Agreement, for an equal aggregate
principal amount of Registered Securities of authorized
denominations as requested by the holder surrendering the same.
Registered Securities will not be exchangeable for Bearer
Securities. The Company shall not be required (a) to exchange
Bearer Securities for Registered Securities during the period
between the close of business on each October 31 and April 30 and
the opening of business on the next succeeding interest payment
date or (b) to exchange Bearer Securities for Registered
Securities, if as a result, the Company or the Guarantor would
incur adverse consequences under United States Federal income tax
laws in effect of the time of exchange, or (c) in the event of a
PAGE
redemption in part, (i) to register the transfer of Registered
Securities or to exchange Bearer Securities for Registered
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; (ii) to register the transfer or
exchange of any such Registered Securities, or portion thereof,
called for redemption; or (iii) to exchange any such Bearer
Securities called for redemption; provided, however, that a
Bearer Security called for redemption may be exchanged for a
Registered Security that is simultaneously surrendered, with
written instruction for payment on the date fixed for redemption,
unless the date fixed for redemption is during the period between
the close of business on each October 31 and April 30 and the
close of business on the next succeeding Interest Payment Date,
in which case such exchange may only be made prior to the close
of business on each October 31 and April 30 immediately preceding
the date fixed for redemption. In the event of redemption or
conversion of a Security in part only, a new Security or
Securities for the unredeemed or unconverted portion hereof will
be issued in the name of the holder thereof.
(c) The costs and expenses of effecting any exchange
or registration of transfer pursuant to the foregoing provisions,
except for the expenses of delivery by other than regular mail
(if any) and except, if the Company shall so require, the payment
of a sum sufficient to cover any tax or other governmental charge
or insurance charges that may be imposed in relation thereto,
will be borne by the Company.
(d) The Company has initially appointed as registrar
and transfer agent the Fiscal Agent acting through its office in
New York. The Company has also initially appointed Bankers Trust
Luxembourg, S.A. as a transfer agent, subject to the listing of
the Securities on the Luxembourg Stock Exchange. The Company may
at any time terminate the appointment of the registrar and
transfer agent and appoint additional or other registrars and
transfer agents or approve any change in an office through which
the registrar and transfer agent acts; provided that, until all
of the Securities have been delivered to the Fiscal Agent for
cancellation, or monies sufficient to pay the Securities have
been made available for payment and either paid or returned to
the Company as provided in the Securities, the Company will
maintain a registrar and transfer agent in the City of New York
in the United States.
(e) For purposes of the provisions of this Security
and the Fiscal Agency Agreement, any Security authenticated and
delivered pursuant to the Fiscal Agency Agreement shall, as of
any date of determination, be deemed to be _outstanding_, except
for:
(i) Securities previously canceled by the Fiscal
Agent or delivered to the Fiscal Agent for cancellation;
(ii) Securities which have been called for
redemption by the Company in accordance with Section 3 hereof or
which have become due and payable at maturity or otherwise and
with respect to which monies sufficient to pay the principal
thereof and interest thereon (including Additional Amounts, if
any) shall have been made available to the Fiscal Agent; or
PAGE
(iii) Securities in lieu of or in substitution
for which other Securities have been authenticated and delivered
pursuant to the Fiscal Agency Agreement;
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 actually known by an
officer of the Fiscal Agent to be owned by the Company or the
Guarantor or any subsidiary thereof shall be disregarded and
deemed not to be outstanding.
9. Modifications and Amendments.
(a) Without the consent of any holders of Securities
or coupons, modifications of or amendments to the Fiscal Agency
Agreement or the Terms and Conditions of the Securities may be
made for any of the following purposes:
(i) to evidence the succession of another
corporation to the Company or the Guarantor and the assumption by
any such successor of the covenants of the Company or the
Guarantor, as the case may be, in the Fiscal Agency Agreement,
the Securities or the Guarantees;
(ii) to add to the covenants of the Company or the
Guarantor for the benefit of the holders of Securities or related
coupons, or to surrender any right or power herein conferred upon
the Company or the Guarantor;
(iii) to permit payment of principal of,
premium, if any, and interest on Bearer Securities in the United
States, provided that such payment is permitted by
United States tax laws and regulations then in effect;
(iv) to make provision with respect to the
conversion rights of holders of Securities or coupons in the
event of a consolidation, merger or sale of substantially all of
the assets of the Company;
(v) to cure any ambiguity, to correct or
supplement any defective provision in the Fiscal Agency Agreement
which may be inconsistent with any other provision therein, or to
make any other provisions with respect to matters or questions
arising under this Security or the Fiscal Agency Agreement,
provided such action pursuant to this clause (v) will not
materially adversely affect the interests of the holders of
Securities or related coupons; or
(vi) to increase the principal amount of
Securities that may be issued pursuant to the Fiscal Agency
Agreement.
(b) Modifications and amendments to the Fiscal Agency
Agreement or to the Terms and Conditions of the Securities may be
made, and future compliance with or past default by the Company
under any of the provisions thereof may be waived, with the
written consent of the holders of not less than a majority in
PAGE
aggregate principal amount of the Securities at the time
outstanding (excluding for purposes of this calculation the
aggregate principal amount of Securities held by the Company or
the Guarantor or any of its subsidiaries), or of such lesser
percentage as may act at a meeting of holders of Securities held
in accordance with the provisions set forth herein; provided that
no such modification, amendment or waiver may, without the
consent of the holder of each such Security affected thereby:
(i) waive a default in the payment of the
principal of, premium, if any, or any installment of interest on
any Security;
(ii) change the stated maturity of the principal
of, premium, if any, or any installment of interest on, any
Security, or reduce the principal amount thereof or any premium,
if any, or any installment of interest, or change the obligation
of the Company to pay Additional Amounts pursuant to Section 2
hereof (except as permitted by subsection (a) of Section 9 or by
the Fiscal Agency Agreement), or change the coin or currency in
which any Security or any premium or interest thereon is payable,
or, except as otherwise permitted or contemplated by the
provisions concerning corporate reorganizations, adversely affect
the right to redeem (pursuant to Section 3(d) hereof) or convert
any Securities as provided in Sections 3 and 4, respectively, or
modify the provisions of the Guarantees in a manner adverse to
the holders;
(iii) reduce the requirements of Section 10
hereof for the adoption of a resolution of the quorum required at
any meeting of holders of Securities at which a resolution is
adopted, or reduce the percentage in principal amount of the
outstanding Securities the consent of whose holders is required
for any amendment or modification of the Fiscal Agency Agreement
or the Terms and Conditions of the Securities or the consent of
whose holders is required for any waiver (of compliance with
certain provisions of the Fiscal Agency Agreement or the
Securities or certain defaults hereunder and thereunder and their
consequences) provided for in the Terms and Conditions of the
Securities;
(iv) modify the obligation of the Company and the
Guarantor to maintain an office or agency in the City of New York
and outside the United States; or
(v) modify any of the provisions of this section
except to increase any such percentage or to provide that certain
other provisions of the Fiscal Agency Agreement or the Securities
cannot be modified or waived without the consent of the holder of
each outstanding Security affected thereby.
It shall not be necessary for any act of holders of Securities
under this Section to approve the particular form of any proposed
amendment, modification or waiver, but it shall be sufficient if
such act shall approve the substance thereof. Any modifications,
amendments or waivers to the Fiscal Agency Agreement or to these
Terms and Conditions will be conclusive and binding on all
holders of the Securities and any coupons appertaining thereto,
whether or not they have given such consent or were present at
such meeting and whether or not notation of such modifications,
PAGE
amendments or waivers is made upon the Securities or coupons, and
on all future holders of Securities and coupons. Any instrument
given by or on behalf of any holder of a Security in connection
with any consent to any such modification, amendment or waiver
will be irrevocable once given and will be conclusive and binding
on all subsequent holders of such Security and coupons
appertaining thereto.
10. Meetings and Votes of Holders.
(a) A meeting of holders of Securities may be called
at any time and from time to time pursuant to this Section for
any of the following purposes: (i) to give any notice to the
Company, to the Guarantor or to the Fiscal Agent, or to give any
directions to the Fiscal Agent, or to consent to the waiving of
any default hereunder and its consequences, or to take any other
action authorized to be taken by holders of Securities pursuant
to these Terms and Conditions; or (ii) to take any other action
authorized to be taken by or on behalf of the holders of any
specified aggregate principal amount of the Securities under any
other provision of the Fiscal Agency Agreement, under applicable
law or under these Terms and Conditions.
(b) Meetings of holders of Securities may be held at
such place or places in New York City or London as the Fiscal
Agent or, in case of its failure to act, the Company, the
Guarantor or the holders calling the meeting shall from time to
time determine.
The Fiscal Agent may at any time call a meeting of holders
of the Securities to be held at such time and at such place in
any of such designated locations as the Fiscal Agent shall
determine. Notice of every meeting of holders shall be made as
specified in the Fiscal Agency Agreement.
In case at any time the Company, the Guarantor or the
holders of at least 25% in aggregate principal amount of the
Securities shall have requested the Fiscal Agent to call a
meeting of the holders, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting,
and the Fiscal Agent shall not have given the first 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, the Guarantor or the holders
of Securities in the amount above specified may determine the
time and the place in such designated locations for such meeting
and may call such meeting to take any action authorized herein by
giving notice thereof as provided in the Fiscal Agency Agreement.
(c) To be entitled to vote at any meeting of holders
of Securities, a person shall be (i) a holder of one or more
Securities, or (ii) a person appointed by an instrument in
writing as proxy for a holder or holders of Securities by such
holder or holders, which proxy need not be a holder of
Securities. 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 and any
representatives of the Fiscal Agent and its counsel and any
representatives of the Company and its counsel and any
representatives of the Guarantor and its counsel. The persons
PAGE
entitled to vote a majority in principal amount of outstanding
Securities shall constitute a quorum for the transaction of all
business specified in subsection (a) hereof. No business shall
be transacted in the absence of a quorum unless a quorum is
represented when the meeting is called to order. 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 the
holders of Securities, be dissolved. In any other case the
meeting shall 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 adjourned meeting. Notice of the reconvening
of any adjourned meeting shall be given as provided in the Fiscal
Agency Agreement. 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 Securities
outstanding shall constitute a quorum for the taking of any
action set forth in the notice of the original meeting. Notice
of the reconvening of an adjourned meeting shall state expressly
the percentage of the aggregate principal amount of the
Securities that shall constitute a quorum. 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 Section 9 of these Terms and Conditions) shall be
effectively passed and decided if passed or decided by the
persons entitled to vote a majority in principal amount of the
Securities represented and voting at such meeting, provided that
such amount shall not be less than 25% in principal amount of the
Securities outstanding. Any holder of a Security who has
executed an instrument in writing appointing a person as his
proxy shall be deemed to be present for the purposes of
determining a quorum and be deemed to have voted; provided,
however, that such holder shall be considered as present or
voting only with respect to the matters covered by such
instrument in writing. Any resolution effectively passed or
decision taken at any meeting of the holders of Securities duly
held in accordance with this Section 10 shall be binding on all
the holders of Securities whether or not present or represented
at the meeting.
(d) Notwithstanding any other provision of this
Security, the Fiscal Agent 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 Bearer
Securities shall be proved by the production of the Bearer
Securities or by a certificate executed, as depositary, by, and
the appointment of any proxy shall be proved by having the
signature of the person executing the proxy witnessed or
guaranteed by, in each case, any trust company, bank or banker
satisfactory to the Fiscal Agent. Such regulations may provide
that written instruments appointing proxies, regular on their
face, may be presumed valid and genuine without the proof
specified herein or other proof. The holding of Registered
Securities shall be proved by the registry books maintained in
accordance with the Fiscal Agency Agreement or by a certificate
PAGE
or certificates of the Fiscal Agent in its capacity as the
Company's agent for the maintenance of such books.
(e) The Fiscal Agent shall, by an instrument in
writing, appoint a temporary chairperson and a temporary
secretary of the meeting, unless the meeting shall have been
called by the Company, the Guarantor or by the holders of
Securities as provided herein and in the Fiscal Agency Agreement,
in which case the Company, the Guarantor or the holders calling
the meeting, as the case may be, shall in like manner appoint a
temporary chairperson and a temporary secretary. A permanent
chairperson and a permanent secretary of the meeting shall be
elected by vote of the holders of a majority in principal amount
of the Securities represented at the meeting and entitled to
vote. At any meeting each holder 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 the Securities
challenged as not outstanding and ruled by the chairperson of the
meeting to be not outstanding. The chairperson of the meeting
shall have no right to vote, except as a holder or proxy. Any
meeting of holders of Securities duly called at which a quorum is
present may be adjourned from time to time by vote of the holders
(or proxies for the holders) of a majority in principal amount of
the Securities represented at the meeting and entitled to vote;
and the meeting may be held as so adjourned without further
notice.
(f) The vote upon any resolution submitted to any
meeting of holders of Securities shall be written ballots on
which shall be subscribed the signatures of the holders of
Securities or of their representatives by proxy and the serial
number or numbers of the Securities held or represented by them.
The permanent chairperson 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
triplicate of all votes cast at the meeting. A record, at least
in triplicate, 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 published as provided in the Fiscal Agency
Agreement. Each copy shall be signed and verified by the
affidavits of the permanent chairperson and secretary of the
meeting, and one of such copy shall be delivered to the Company,
another to the Guarantor and another to the Fiscal Agent to be
preserved by the Fiscal Agent, the copy delivered to the Fiscal
Agent to have attached thereto by ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
11. Business Days. Notwithstanding anything herein or in
the Fiscal Agency Agreement to the contrary, if any payment of
interest or premium or principal (or Additional Amounts, if any)
is due on a day that is not a Business Day, payment shall be made
on the next succeeding Business Day, with the same effect as if
made on the day such payment was due, and no interest shall
PAGE
accrue for the period after such date. A _Business Day_ is
defined, with respect to any act to be performed pursuant hereto
or to the Fiscal Agency Agreement, as any day which is not a
Saturday, Sunday or a day on which banking institutions in the
place where such act is to occur are authorized or obligated by
applicable law, regulation or executive order to close.
12. Fiscal and Paying Agent.
(a) In acting under the Fiscal Agency Agreement and in
connection with the Securities, the Fiscal Agent is acting solely
as agent of the Company and the Guarantor and does not assume any
obligation, or relationship of agency or trust, for or with the
owner or holder of this Security or any interest coupon
appertaining hereto, except that funds held by the Fiscal Agent
for payment on this Security shall be held in trust by it and
applied as set forth herein, but need not be segregated from
other funds held by it, except as required by law. For a
description of the duties and the immunities and rights of the
Fiscal Agent under the Fiscal Agency Agreement, reference is made
to the Fiscal Agency Agreement, and the obligations of the Fiscal
Agent to the holder hereof are subject to such immunities and
rights.
(b) Any monies paid by the Company to any paying
agency for payment of principal of, premium, if any, or interest
on any Security (including Additional Amounts, if any, in respect
thereof) and remaining unclaimed for two years after such payment
has been made shall be repaid to the Company and to the extent
permitted by law the holder of any Security shall thereafter look
only to the Company or the Guarantor for any payment thereof as a
general unsecured obligation thereof and all liability of the
Fiscal Agent with respect thereto shall cease.
(c) No reference herein to the Fiscal Agency Agreement
and no provision of this Security or of the Fiscal Agency
Agreement shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of,
premium, if any, and interest (and Additional Amounts, as
described above) on this Security at the times, places and rate,
and in the coin or currency, herein prescribed or to convert or
redeem (at the request of a holder) this Security as provided
herein or in the Fiscal Agency Agreement.
Title to Bearer Securities and coupons shall pass by
delivery. As provided in the Fiscal Agency Agreement and subject
to certain limitations therein set forth, the transfer of
Registered Securities is registrable on the Security Register
upon surrender of a Registered Security for registration of
transfer at the office or agency of the Company in the City of
New York, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and
the Security Registrar duly executed by, the holder thereof or
his attorney duly authorized in writing, and thereupon one or
more new Registered Securities, of authorized denominations and
for the same aggregate principal amount, having endorsed thereon
a Guarantee executed by the Guarantor, will be issued to the
designated transferee or transferees.
PAGE
13. Notices. All notices to the holders of Securities will
be published on a Business Day in an Authorized Newspaper (as
defined in the Fiscal Agency Agreement) in New York City and in
London, and, if the Securities are listed on the Luxembourg Stock
Exchange and so long as listed thereon , in Luxembourg or, if
either publication in London or Luxembourg is not practical, in
an Authorized Newspaper in any country in Western Europe. It is
expected that publication in New York City will be made in The
Wall Street Journal (Eastern edition), in London in the Financial
Times and in Luxembourg in the Luxemburger Wort. Notices shall
be deemed to have been given on the date of publication as
aforesaid or, if published on different dates, on the date of the
first such publication. A copy of each such notice will be
mailed by the Fiscal Agent, on behalf of and at the expense of
the Company, by first-class mail to each holder of a Registered
Security at the registered address of such holder as the same
shall appear in the Security Register (as defined in the Fiscal
Agency Agreement) on the day fifteen days prior to such mailing.
14. Governing Law.
(a) THE FISCAL AGENCY AGREEMENT, THE SECURITIES AND
ANY COUPONS APPERTAINING THERETO AND THE GUARANTEES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, UNITED STATES OF AMERICA WITHOUT GIVING
EFFECT TO ITS CONFLICTS OF LAWS RULES.
(b) The Company and the Guarantor have appointed the
Fiscal Agent as its agent upon whom process may be served in any
suit, action or proceeding initially at its office located at
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, with a copy to the
Company at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ and with a copy
to the Guarantor at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: General Counsel.
15. Authentication. This Security and any coupons
appertaining thereto shall not become valid or obligatory for any
purpose until the certificate or authentication hereon shall have
been duly signed by the Fiscal Agent or the Principal Paying
Agent acting under the Fiscal Agency Agreement.
16. Warranty of the Issuer. Subject to Section 15 hereof,
the Company hereby certifies and warrants that all acts,
conditions and things required to be done and performed and to
have happened precedent to the creation and issuance of this
Security and any coupons appertaining thereto, and to constitute
the same legal, valid and binding obligations of the Company
enforceable in accordance with their terms, have been done and
performed and have happened in due and strict compliance with all
applicable laws.
17. Delivery of Certain Information. At any time when the
Company is not subject to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended, upon the request of a holder
or beneficial owner of a Restricted Security, the Company will
promptly furnish or cause to be furnished such information as is
specified in Rule 144A(d)(4) under the Securities Act (or any
successor thereto) to such holder, to a prospective purchaser of
such Restricted Security designated by such holder, to such
beneficial owner or to a prospective purchaser of such Restricted
PAGE
Security designated by such beneficial owner, as the case may be,
in order to permit compliance by such holder or beneficial owner
with Rule 144A under the Securities Act in connection with the
resale of such Security by such holder or beneficial owner,
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 three years (or the then applicable
holding period under Rule 144(k) under the Securities Act (or
successor provision)) from the later of (i) the date such
Security (or any predecessor security) was originally acquired
from the Company and (ii) the date such Security (or any
predecessor security) was last acquired from the Company or an
_affiliate_ of the Company within the meaning of Rule 144 under
the Securities Act.
18. Accounting Terms. All accounting terms not otherwise
defined herein shall have the meanings assigned to them in
accordance with generally accepted accounting principles as
applied in the United States.
19. Descriptive Headings. The descriptive headings
appearing in these Terms and Conditions are for convenience of
reference only and shall not alter, limit or define the
provisions hereof.
PAGE
GUARANTEE OF THERMO ELECTRON CORPORATION
1. FOR VALUE RECEIVED, Thermo Electron Corporation, a
corporation duly organized and existing under the laws of the
State of Delaware (herein called the _Guarantor_), hereby
unconditionally guarantees to the holder of the Security upon
which this Guarantee is endorsed and to each holder of any coupon
appertaining thereto the due and punctual payment of the
principal of, premium, if any, and interest and any Additional
Amounts (payable in accordance with Section 2 of such Security)
on such Security when and as the same shall become due and
payable, whether at the stated maturity or by declaration of
acceleration, call for redemption, redemption at the option of
the holder thereof or otherwise, according to the terms of such
Security and of the Fiscal Agency Agreement referred to in the
Security upon which this Guarantee is endorsed. In case of the
failure of the Company referred to in the Security upon which
this Guarantee is endorsed punctually to make any such payment of
principal, premium, if any, or interest or such Additional
Amounts, if any, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become
due and payable, whether at the stated maturity or by declaration
of acceleration, call for redemption, redemption at the option of
the holder thereof or otherwise, and as if such payment were made
by the Company.
2. The Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of such Security or the Fiscal
Agency Agreement, the absence of any action to enforce the same,
any waiver or consent by the holder of such Security or any such
coupon or by the Fiscal Agent with respect to any provisions
thereof or of the Fiscal Agency Agreement, the recovery of any
judgment against the Company or any action to enforce the same or
any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor. The Guarantor
hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to such Security or
coupon or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be
discharged except by complete performance of the obligations
contained in such Security and any such coupon and in this
Guarantee.
3. (a) The Guarantor will not merge or consolidate with,
or sell or convey all or substantially all of its assets to, any
other corporation, unless (i) either (A) the Guarantor shall be
the surviving corporation in the case of a merger, (B) the assets
sold or conveyed shall be owned by a corporation or corporations
which, immediately following such sale or conveyance, are at
least 51%-owned, directly or indirectly, by the Guarantor,
provided that such sale or conveyance does not result in the
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Guarantor, or (C) (I)
the surviving, resulting or transferee corporation shall
expressly assume the due and punctual performance of all of the
covenants and obligations of the Guarantor under the Guarantees
PAGE
and Fiscal Agency Agreement, by supplemental agreement reasonably
satisfactory to the Fiscal Agent, and (II) the Fiscal Agent shall
have received the documentation required in the context by the
Fiscal Agency Agreement and (ii) the Guarantor or such successor
corporation, as the case may be, shall not, immediately after
such merger, consolidation, sale or conveyance, be in default in
the performance of any covenants or obligations of the Guarantor
under the Guarantees or the Fiscal Agency Agreement.
(b) Upon any merger, consolidation, sale, conveyance
or assumption as provided in clause (i)(C) of Section 3(a), the
successor or assuming corporation shall succeed to and be
substituted for, and may exercise every right and power of and be
subject to all the obligations of, the Guarantor under the
Guarantees and Fiscal Agency Agreement, with the same effect as
if such successor or assuming corporation had been named as the
Guarantor therein and herein and the Guarantor shall be released
from its obligations as obligor under the Guarantees and Fiscal
Agency Agreement.
4. (a) The Guarantor, for itself, its successors and
assigns, covenants and agrees, and each holder of Securities by
his acceptance thereof, likewise covenants and agrees, that all
obligations of the Guarantor relating to payment of the principal
of, premium, if any, and interest and Additional Amounts
(pursuant to Section 2 of the Securities) on each and all of the
Securities and coupons is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of all Senior Indebtedness
of the Guarantor (as defined below).
"Senior Indebtedness of the Guarantor" or "Senior
Indebtedness" shall mean the principal of, premium, if any, and
interest on and all other amounts due on or with respect to the
following, whether outstanding at the date hereof or hereafter
created or incurred:
(i) indebtedness of the Guarantor for money
borrowed by the Guarantor (excluding the Guarantees, but
including purchase money obligations) whether or not evidenced by
debentures, bonds, notes or other corporate debt securities or
similar instruments issued by the Guarantor (including the
Guarantor's obligations with respect to its 5% Senior Convertible
Debentures due 2001; provided, however, that Senior Indebtedness
shall not include (a) the Guarantor's 4-1/4% Convertible
Subordinated Debentures due 2003, the obligations represented by
which shall rank pari passu with the obligations represented
hereby in right of payment, (b) the Guarantor's subordinated
guarantee of the principal, premium, if any, and interest on the
6-1/2% Convertible Subordinated Debentures due 1997 and the
4-5/8% Convertible Subordinated Debentures due 2003 of Thermo
TerraTech Inc., on the Non-Interest Bearing Convertible
Subordinated Debentures Due 2003 of Thermedics Inc., on the
Non-Interest Bearing Convertible Subordinated Debentures due 2001
and the 4-7/8% Convertible Subordinated Debentures due 2004 of
Thermo Ecotek Corporation, on the 3-3/4% Convertible Subordinated
Debentures due 2000 of Thermo Voltek Corp., on the 4-7/8%
Convertible Subordinated Debentures due 2000 of Thermo
Remediation Inc., on the 5% Convertible Subordinated Debentures
due 2000 of ThermoQuest Corporation, and on the 5% Convertible
PAGE
Subordinated Debentures due 2000 of Thermo Optek Corporation, the
obligations represented by which shall rank pari passu with the
obligations represented hereby in right of payment and (c) the
Guarantor's subordinated guarantee of the obligations to redeem
the common stock of ThermoLyte Corporation, Thermo Fibergen Inc.
and ThermoLase Corporation the obligations represented by which
shall rank pari passu with the obligations represented hereby in
right of payment;
(ii) obligations to reimburse any bank or other
person in respect of amounts paid under letters of credit;
(iii) leases for real property, equipment or
other assets, which leases are capitalized in the Guarantor's
consolidated financial statements in accordance with generally
accepted accounting principles;
(iv) commitment, standby and other fees due and
payable to financial institutions with respect to credit
facilities available to the Guarantor;
(v) obligations of the Guarantor under interest
rate and currency swaps, floors, caps or other similar
arrangements intended to fix or hedge interest rate obligations
or currency exposure;
(vi) indebtedness secured by any mortgage, pledge,
lien or other encumbrance on property which is owned or held by
the Guarantor subject to such mortgage, pledge, lien or other
encumbrance, whether or not the indebtedness secured thereby
shall have been assumed by the Guarantor;
(vii) obligations of the Guarantor
constituting guarantees of indebtedness of or joint obligations
with another or others which would be included in the preceding
clauses (i), (ii), (iii), (iv), (v) or (vi) (including the
Guarantor's guarantee of the principal, premium, if any, and
interest on the 3-3/4% Senior Convertible Debentures due 2000 and
the 4-1/2% Senior Convertible Debentures due 2003 of Thermo
Instrument Systems Inc.); or
(viii) modifications, renewals, extensions or
refundings of any of the indebtedness, leases, fees or
obligations referred to in the preceding clauses (i), (ii),
(iii), (iv), (v), (vi) and (vii), or debentures, notes or other
evidences of indebtedness issued in exchange therefor;
provided that Senior Indebtedness shall not include any
particular indebtedness, lease, fee, obligation, modification,
renewal, extension, refunding or exchanged security if, under the
express provisions of the instrument creating or evidencing the
same, or pursuant to which the same is outstanding, such
indebtedness, lease, fee or obligation or such modification,
renewal, extension, refunding or exchanged security is stated to
be not superior in right of payment to the Guarantees.
(b) (i) In the event of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or
other similar proceedings in connection therewith, relative to
the Guarantor or it its creditors, in their capacity as such
PAGE
creditors, or to its property, or in the event of any proceedings
for voluntary liquidation, dissolution or other winding up of the
Guarantor, whether or not involving insolvency or bankruptcy, or
in the event of any assignment for the benefit of creditors of
the Guarantor or any marshalling of assets of the Guarantor, then
the holders of Senior Indebtedness of the Guarantor shall first
be entitled to receive payment in full of the principal of (and
premium, if any) and interest, including interest thereon
accruing after the commencement of any such proceeding, and other
amounts due on or with respect to, all Senior Indebtedness of the
Guarantor before the holders of any of the Securities and coupons
shall be entitled to receive any payment on account of the
obligations of the Guarantor relating to the principal of,
premium, if any, or interest and Additional Amounts (pursuant to
Section 2 of the Securities) on the Securities and coupons, and
to that end the holders of Senior Indebtedness of the Guarantor
shall be entitled to receive for application in payment thereof
any payment or distribution of any kind or character, whether in
cash, property or securities, which may be payable or deliverable
in any such proceedings in respect of the obligations of the
Guarantor relating to the Securities and coupons, other than
securities of the Guarantor as reorganized or readjusted or
securities of the Guarantor or any other corporation provided for
by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in this Section 4
with respect to the obligations of the Guarantor relating to the
Securities and coupons, to the payment of all Senior Indebtedness
of the Guarantor, provided that the rights of the holders of
Senior Indebtedness of the Guarantor are not altered by such
reorganization or readjustment. For the purposes of this
Section 4, no consolidation, merger, conveyance or transfer made
pursuant to the provisions of Section 3 shall be deemed to be a
liquidation, reorganization, dissolution or other winding up of
the Guarantor.
(ii) If under the circumstances set forth in
paragraph (i) of this subsection, and notwithstanding the
provisions thereof, any payment or distribution of assets of the
Guarantor of any kind, whether in cash, property, or securities
(other than securities of the Guarantor as reorganized or
readjusted or securities of the Guarantor or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to
the extent provided in this Section 4 with respect to the
obligations of the Guarantor relating to the Securities and
coupons, to the payment of all Senior Indebtedness of the
Guarantor, provided that the rights of the holders of Senior
Indebtedness of the Guarantor are not altered by such
reorganization or readjustment), shall be received by the holders
of the Securities in respect of the obligations of the Guarantor
before all Senior Indebtedness of the Guarantor is paid in full,
such payment or distribution shall be paid over to the holders of
Senior Indebtedness of the Guarantor, ratably, for application to
the payment of all Senior Indebtedness of the Guarantor remaining
unpaid until all Senior Indebtedness of the Guarantor shall have
been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness of the
Guarantor.
PAGE
(iii) Upon any distribution of assets of the
Guarantor referred to in this Section, the holders of Securities
shall be entitled to rely upon any final order or decree of a
court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are
pending, and the holders of Securities shall be entitled to rely
upon a certificate of the liquidating trustee or agent or other
person making any distribution to the holders of Securities for
the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Senior Indebtedness of the
Guarantor and other indebtedness of the Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Section.
(c) (i) Upon the maturity of any Senior Indebtedness
of the Guarantor by lapse of time, acceleration or otherwise, all
principal thereof (and premium, if any) and interest due thereon,
including interest thereon accruing after the commencement of any
proceeding of the type referred to in paragraph (i) of
Section 4(b) above, and all other amounts due on or with respect
thereto, shall first be paid in full, or such payment duly
provided for in cash, before any payment, directly or indirectly,
is made on account of the obligations of the Guarantor relating
to the principal of, premium, if any, or interest and Additional
Amounts (pursuant to Section 2 of the Securities) on the
Securities or coupons.
(ii) Upon the happening of an event of default
with respect to any Senior Indebtedness of the Guarantor, as
defined therein or in the instrument under which it is
outstanding, permitting the holders to accelerate the maturity
thereof, then, unless and until such event of default shall have
been cured or waived or shall have ceased to exist, no payment
shall be made by the Guarantor, directly or indirectly, on
account of the obligations of the Guarantor relating to the
principal of, premium, if any, or interest and Additional Amounts
(pursuant to Section 2 of the Securities) on the Securities and
coupons.
(d) In case cash, securities or other property
otherwise payable or deliverable to the holders of the Securities
on account of the Guarantees shall have been applied, pursuant to
Section 4(b) or (c), to the payment of Senior Indebtedness of the
Guarantor, then, upon the payment in full of all Senior
Indebtedness of the Guarantor, the holders of the Securities and
coupons shall be subrogated to any rights of any holders of
Senior Indebtedness of the Guarantor, to receive any further
payments or distributions applicable to Senior Indebtedness of
the Guarantor until the obligations of the Guarantor in respect
of the Guarantees shall have been discharged in full, and such
payments or distributions received by the holders of the
Securities and coupons, by reason of such subrogation, of cash,
securities or other property which otherwise would be paid or
distributed to the holders of Senior Indebtedness of the
Guarantor, shall, as between the Guarantor and its creditors
other than the holders of Senior Indebtedness of the Guarantor,
on the one hand, and the holders of the Securities and coupons on
account of the Guarantees, on the other hand, be deemed to be a
PAGE
payment by the Guarantor on account of Senior Indebtedness of the
Guarantor and not on account of the Securities and coupons.
(e) No present or future holder of any Senior
Indebtedness of the Guarantor shall be prejudiced in any way in
the right to enforce the subordination of the Guarantees by any
act or failure to act on the part of the Guarantor. The
provisions of this Section 4 are solely for the purpose of
defining the relative rights of the holders of Senior
Indebtedness of the Guarantor, on the one hand, and the holders
of the Securities and coupons on account of the Guarantees, on
the other hand, against the Guarantor and its assets, and nothing
contained in this Section 4 shall impair, as between the
Guarantor and the holder of any Security or coupon, the
obligation of the Guarantor, which is unconditional and absolute,
to perform in accordance with the terms of its Guarantees, or
prevent the holder of any Security or coupon, upon default
hereunder or under such Security or coupon, from exercising all
rights, powers and remedies otherwise provided herein or therein
or by applicable law, all subject to the rights of the holders of
Senior Indebtedness of the Guarantor under this Section 4 to
receive cash, property or securities otherwise payable or
deliverable to the holders of the Securities and coupons on
account of the Guarantees.
(f) Nothing contained in this Section 4 or in any
Guarantees shall prevent at any time, except under the conditions
described in Sections 4(b) and (c) hereof or during the pendency
of any dissolution, winding up, liquidation or reorganization
proceedings therein referred to, the Guarantor from performing
its obligations under the Guarantees.
5. The Guarantor shall be subrogated to all rights of the
holders of the Securities and of any coupons against the Company
in respect of any amounts paid by the Guarantor pursuant to the
provisions of this Guarantee; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation
until the principal of, premium, if any, and interest on and
Additional Amounts (pursuant to Section 2 of the Securities, if
any, on) all of the Securities shall have been paid in full.
6. THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES
OF AMERICA WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS RULES.
7. All terms used in this Guarantee which are defined in
the Fiscal Agency Agreement shall have the meanings assigned to
them in the Fiscal Agency Agreement.
8. Subject to the next following paragraph, the Guarantor
hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened
precedent to the creation and issuance of this Guarantee and to
constitute the same a legal, valid and binding obligations of the
Guarantor enforceable in accordance with their terms, have been
done and performed and have happened in due and strict compliance
with all applicable laws.
PAGE
9. This Guarantee shall not become valid or obligatory for
any purpose until the certificate of authentication on the
Security upon which this Guarantee is endorsed shall have been
duly signed by the Fiscal Agent acting under the Fiscal Agency
Agreement.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
to be duly executed in its corporate name by the manual or
facsimile signature of a duly authorized officer.
Dated:
THERMO ELECTRON CORPORATION
By:
Name:
Title:
Attest:
-------------------------
PAGE
TRANSFER NOTICE
Only if a Registered Security is transferred:
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s),
assign(s) and transfer(s)
unto ___________________________________________________________
________________________________________________________________
______________________________________________ whose taxpayer
identification number is __________________ and whose address
including postal/zip code is ____________________________________
the within Security and all rights thereunder, hereby irrevocably
constituting and appointing _________________________
attorney-in-fact to transfer said Security on the books of the
Fiscal Agent with full power of substitution in the premises.
In connection with the transfer of this Security, the undersigned
Holder certifies that:
(Check one)
(a) This Security is being transferred to a
"qualified institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) in compliance with the exemption from
registration under the Securities Act of 1933 provided by Rule
144A.
(b) This Security is being transferred in an
Offshore Transaction (as defined in Regulation S under the
Securities Act of 1933) in compliance with the exemption from
registration under the Securities Act of 1933 provided by
Regulation S and in connection with which transfer the Company
has received, if so requested, an opinion of counsel
(satisfactory to it in form and substance) to the effect that the
transfer is being made pursuant to an exemption from the
registration requirements of Securities Act of 1933.
(c) This Security is being transferred to an
institutional investor which is an _accredited investor_ (within
the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act of 1933) in a transaction that is exempt from the
registration requirements of the Securities Act of 1933 and in
connection with which transfer the Company has received, if so
requested, an opinion of counsel (satisfactory to it in form and
substance) to the effect that the transfer is being made pursuant
to an exemption from the registration requirements of Securities
Act of 1933
(d) This Security is being transferred to Thermo
Cardiosystems Inc.
PAGE
(e) Transfer other than those above in connection
with which the Company has received an opinion of counsel
(satisfactory to it in form and substance) to the effect that the
transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act of 1933.
(f) This Security is being exchanged for a
beneficial interest in the Rule 144A Global Security and the
undersigned is a _qualified institutional buyer_ (as defined in
Rule 144A under the Securities Act of 1933).
Dated:________________________ Name:
By:
Title:
NOTICE: The signature of the Holder to this
assignment must correspond with the name as written upon the face
of the within instrument in every particular, without enlargement
or any change whatsoever.
SIGNATURE GUARANTEED
TO BE COMPLETED BY A BROKER OR DEALER IF (c) ABOVE IS CHECKED:
The undersigned represents and warrants that (i) it is a broker
or dealer registered under Section 15 of the Securities Exchange
Act of 1934, (ii) each person which will become a beneficial
owner of this Security upon transfer is an institutional investor
which is an "accredited investor" (within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933);
(iii) no general solicitation or advertising was made or used by
it in connection with the offer and sale of this Security to such
person(s); and (iv) each such person has been notified that this
Security has not been registered under the Securities Act of 1933
and is subject to the restrictions on transfer of the Security
set forth herein and in the Fiscal Agency Agreement.
Dated: ________________________ ________________________
By:
IF NONE OF THE FOREGOING BOXES IS CHECKED, THE FISCAL AGENT SHALL
NOT BE OBLIGATED TO REGISTER THE TRANSFER OF THIS SECURITY UNLESS
AND UNTIL THE CONDITIONS TO ANY SUCH TRANSFER OF REGISTRATION SET
FORTH HEREIN, ON THE FACE HEREOF AND IN THE FISCAL AGENCY
AGREEMENT SHALL HAVE BEEN SATISFIED.
PAGE
CONVERSION NOTICE
If Bearer Security of denomination U.S. $1,000:
The undersigned holder of this Security hereby (i)
irrevocably exercises the option to convert this Security into
shares of Common Stock of Thermo Cardiosystems Inc. (the
_Company_) in accordance with the terms of this Security, and
(ii) directs that such shares be registered in the name of and
delivered, together with a check in payment for any fractional
share, to the undersigned unless a different name has been
indicated below. If shares are to be registered in the name of a
person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Dated:
_____________________________
Signature
[MUST BE GUARANTEED IF STOCK IS TO BE ISSUED
IN A NAME OTHER THAN THE REGISTERED
HOLDER OF THE SECURITY]
If shares are to be registered in the name of and delivered to a
person other than the holder, please print such person's name and
address and, if this is a Restricted Security, complete the
Transfer Notice:
HOLDER
Please print name and address of holder:
PAGE
CONVERSION NOTICE
If (i) Registered Security or (ii) Bearer Security of
denomination U.S. $10,000:
The undersigned holder of this Security hereby irrevocably
exercises the option to convert this Security, or portion hereof
(which is U.S. $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of Thermo
Cardiosystems Inc. (the _Company_) in accordance with the terms
of this Security, and (ii) directs that such shares, together
with a check in payment for any fractional share and any
Securities representing any unconverted principal amount hereof,
be delivered to and be registered (if a Registered Security) in
the name of the undersigned unless a different name has been
indicated below. If shares or Securities are to be registered in
the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto.
Signature
[MUST BE GUARANTEED IF STOCK IS TO
BE ISSUED IN A NAME OTHER THAN
THE REGISTERED HOLDER OF THE SECURITY]
Dated:
If shares or Securities are to be registered in the name of a
Person other than the registered holder, please print such
person's name and address and, if this is a Restricted Security,
complete Transfer Notice:
HOLDER
Please print name and address of holder:
PAGE
If only a portion of the Securities is to be converted, please
indicate:
1 . Principal Amount to be converted: U.S.$________
2. Kind, amount and denomination of Securities
representing unconverted principal amount to be issued:
Bearer U.S. $_____________
(U.S. $1,000 or $10,000)
Registered U.S.$___________
Denominations: U.S.$__________
(U.S. $1,000 or an integral multiple thereof)
Registered Securities are not exchangeable for Bearer Securities.
PAGE
REDEMPTION NOTICE UNDER SECTION 3(d)
If Bearer Security of denomination
U.S. $ 1,000:
The undersigned holder of this Security hereby requests and
instructs the Company to redeem this Security in accordance with
the terms of Section 3(d) of this Security and directs that a
check in payment of the redemption amount be delivered to the
undersigned unless a different name has been indicated below.
The undersigned understands that this request can be revoked by
delivering written notice to the Paying Agent on or before the
Holder Redemption Date, together with the undersigned's
non-transferable receipt for such Security.
Dated:
Signature
[MUST BE GUARANTEED IF CHECK IS TO
BE MADE PAYABLE TO A NAME OTHER
THAN THE REGISTERED HOLDER OF THE
SECURITY]
If a check in payment of the redemption amount is to be delivered
to a person other than the holder, please print such person's
name and address:
HOLDER
Please print name and address of holder:
PAGE
REDEMPTION NOTICE UNDER SECTION 3(d)
If (i) Registered Security or (ii) Bearer Security of
denomination U.S. $10,000:
The undersigned holder of this Security hereby requests and
instructs the Company to redeem this Security or portion hereof
(which is U.S. $1,000 or an integral multiple thereof) in
accordance with the terms of Section 3(d) of this Security, and
directs that a check in payment of the redemption amount be
delivered to, and any Securities representing any unredeemed
principal amount hereof be delivered to and be registered in the
name of, the undersigned unless a different name has been
indicated below. If Securities are to be registered in the name
of a person other than the undersigned, the undersigned will pay
all transfer taxes payable with respect thereto. The undersigned
understands that this request can be revoked by delivering
written notice to the Paying Agent on or before the Holder
Redemption Date, together with the undersigned's non-transferable
receipt for such Security.
Dated:
____________________________________
Signature
[MUST BE GUARANTEED IF CHECK IS TO BE MADE PAYABLE TO A NAME
OTHER THAN THE REGISTERED HOLDER OF THE SECURITY]
If Securities are to be registered HOLDER
in the name of, or a check in Please print name and
address
payment of the redemption of holder
amount is to be delivered to,
a person other than the holder,
please print such person's name
and address, and if this is a
Restricted Security and any
Securities representing any
unredeemed principal amount
hereof are to be registered in the
name of a person other than the
undersigned, complete Transfer
Notice.
PAGE
1. Principal Amount to be redeemed: U.S. $
2. Kind, amount and denomination of
Securities representing unredeemed principal amount to be issued:
Bearer U.S. $_____________
Denominations: U.S. $__________
(U.S. $1,000 or $10,000)
Registered U.S.$___________
Denominations: U.S.$__________
(U.S. $1,000 or an integral
multiple thereof)
Registered Securities are not
exchangeable for Bearer Securities.
PAGE
SCHEDULE OF EXCHANGES OF DEFINITIVE NOTES4
The following exchanges of a part of this Rule 144A Global
Security for
Registered Accredited Investor Securities, or other Registered
Securities not in
global form, have been made:
Principal
Amount of Amount of Amount of Signature
Decrease in Increase in this Global of
Amount of Principal Principal Security authorized
Exchange Amount of Amount of following Officer of
this Global this Global such Fiscal
Security Security decrease Agent or
(or Security
increase) Custodian
------- -------- ----------- -----------
______________________
4 This should be included only if the Security is issued as a
Rule 144 A Global Security.
PAGE
EXHIBIT B
(FORM OF REGULATION S GLOBAL SECURITY)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY
INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, DIRECTLY OR INDIRECTLY, IN THE UNITED
STATES OF AMERICA, ITS TERRITORIES, ITS POSSESSION AND OTHER
AREAS SUBJECT TO ITS JURISDICTION (THE "UNITED STATES" ) OR TO
ANY CITIZEN, NATIONAL RESIDENT OF THE UNITED STATES OR TO ANY
CORPORATION, PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN
OR UNDER THE LAWS OF THE UNITED STATES OR ANY POLITICAL
SUBDIVISION THEREOF, OR TO ANY ESTATE OR TRUST THE INCOME OF
WHICH IS SUBJECT TO UNITED STATES FEDERAL INCOME TAXATION
REGARDLESS OF ITS SOURCE OR TO ANY OTHER PERSON OR ENTITY DEEMED
A U.S. PERSON UNDER REGULATIONS UNDER THE SECURITIES ACT ("UNITED
STATES PERSON"), EXCEPT TO CERTAIN INSTITUTIONAL INVESTORS IN THE
UNITED STATES IN TRANSACTIONS NOT REQUIRED TO BE REGISTERED UNDER
THE SECURITIES ACT.
ANY UNITED STATES PERSON WHO HOLDS THIS SECURITY WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS,
INCLUDING THE LIMITATIONS PROVIDED IN SECTION 165(j) AND 1287(a)
OF THE UNITED STATES INTERNAL REVENUE CODE.
THIS SECURITY IS A TEMPORARY GLOBAL SECURITY, WITHOUT
COUPONS OR CONVERSION RIGHTS, EXCHANGEABLE FOR DEFINITIVE BEARER
SECURITIES WITH INTEREST COUPONS OR REGISTERED SECURITIES WITHOUT
INTEREST COUPONS. THE RIGHTS ATTACHING TO THIS GLOBAL SECURITY,
AND THE CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR
DEFINITIVE SECURITIES, ARE AS SPECIFIED IN THE FISCAL AGENCY
AGREEMENT (AS DEFINED HEREIN).
NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS GLOBAL
SECURITY SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST HEREON
EXCEPT PURSUANT TO THE PROVISIONS HEREOF.
PAGE
THERMO CARDIOSYSTEMS INC.
(Incorporated in the Commonwealth of Massachusetts)
4 3/4% CONVERTIBLE SUBORDINATED DEBENTURE DUE 2004
GUARANTEED ON A SUBORDINATED BASIS BY
THERMO ELECTRON CORPORATION
(Incorporated in the State of Delaware)
TEMPORARY GLOBAL DEBENTURE
Thermo Cardiosystems Inc., a corporation duly incorporated
and existing under the laws of the Commonwealth of Massachusetts
(the "Company"), for value received, hereby promises to pay to
bearer upon presentation and surrender of this Global Security
the principal sum of $_______ United States Dollars on May 15,
2004 and to pay interest thereon, from the date hereof,
semiannually in arrears on November 15 and May 15 in each year,
commencing November 15, 1997, at the rate of 4 3/4% per annum,
until the principal hereof is paid or made available for payment;
provided, however, that interest on this Global Security shall be
payable only after the issuance of the definitive Securities for
which this Global Security is exchangeable and, in the case of
definitive Securities in bearer form, only upon presentation and
surrender (at an office or agency outside the United States, its
territories and its possessions, except as otherwise provided in
the Fiscal Agency Agreement referred to below) of the interest
coupons thereto attached as they severally mature.
This Global Security is one of a duly authorized issue of
Securities of the Company designated as specified in the title
hereof, issued and to be issued under the Fiscal Agency Agreement
dated as of May 14, 1997 (the "Fiscal Agency Agreement") among
the Company, Thermo Electron Corporation, a corporation duly
incorporated and existing under the laws of the State of
Delaware, as guarantor and Bankers Trust Company, as Fiscal agent
(the "Fiscal Agent", which term includes any successor Fiscal
agent under the Fiscal Agency Agreement). This Global Security
is a temporary security and is exchangeable in whole or from time
to time in part without charge upon request of the holder hereof
for definitive Securities in bearer form, with interest coupons
attached, or in registered form, without coupons, of authorized
denominations, (a) not earlier than the day following expiration
of the 40-day period that begins on the date hereof and (b) as
promptly as practicable following presentation of certification,
in the forms set forth as Exhibits C and F of the Fiscal Agency
Agreement for such purpose, that the beneficial owner or owners
of this Global Security (or, if such exchange is only for a part
of this Global Security, of such part) are not United States
Persons or other persons who have purchased such Debenture for
resale to United States Persons. Definitive Securities in bearer
form to be delivered in exchange for any part of this Global
Security shall be delivered only outside of the United States,
its territories and its possessions. Upon any exchange of a part
of this Global Security for definitive Securities, the portion of
the principal amount hereof so exchanged shall be endorsed by the
Fiscal Agent or its agents on the Schedule of Exchanges hereto,
PAGE
and the principal amount hereof shall be reduced for all purposes
by the amount so exchanged.
Until exchanged in full for definitive Securities, this
Global Security shall in all respects be entitled to the same
benefits under, and subject to the same terms and conditions of,
the Fiscal Agency Agreement as definitive Securities
authenticated and delivered thereunder, except that neither the
holder hereof nor the beneficial owners of this Global Security
shall be entitled to receive payment of interest hereon, except
as provided above, or to convert this Global Security into shares
of Common Stock of the Company or any other security, cash or
other property.
THIS GLOBAL SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES
OF AMERICA, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW RULES.
All terms used in this Global Security which are defined in
the Fiscal Agency Agreement shall have the meanings assigned to
them in the Fiscal Agency Agreement.
Unless the certificate of authentication hereon has been
manually executed by an authorized signatory of the Fiscal Agent,
this Global Security shall not be entitled to any benefit under
the Fiscal Agency Agreement or valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this Global
Security to be duly executed in its corporate name by its duly
authorized signatory under its corporate seal.
Dated: May __, 1997
THERMO CARDIOSYSTEMS INC.
By:__________________________
Name:
Title:
Attest:
-------------------------
PAGE
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the
within-mentioned Fiscal Agency Agreement.
BANKERS TRUST COMPANY,
as Fiscal Agent
By:
Authorized Officer
PAGE
SCHEDULE OF EXCHANGES
Principal Remaining
amount principal Notation
exchanged amount made on
Date for following behalf of
made definitive such the
Securities exchange Fiscal
Agent
PAGE
GUARANTEE OF THERMO ELECTRON CORPORATION
1. FOR VALUE RECEIVED, Thermo Electron Corporation, a
corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Guarantor"), hereby
unconditionally guarantees to the holder of the Security upon
which this Guarantee is endorsed and to each holder of any coupon
appertaining thereto the due and punctual payment of the
principal of, premium, if any, and interest and any Additional
Amounts (payable in accordance with Section 2 of such Security)
on such Security when and as the same shall become due and
payable, whether at the stated maturity or by declaration of
acceleration, call for redemption, redemption at the option of
the holder thereof or otherwise, according to the terms of such
Security and of the Fiscal Agency Agreement referred to in the
Security upon which this Guarantee is endorsed. In case of the
failure of the Company referred to in the Security upon which
this Guarantee is endorsed punctually to make any such payment of
principal, premium, if any, or interest or such Additional
Amounts, if any, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become
due and payable, whether at the stated maturity or by declaration
of acceleration, call for redemption, redemption at the option of
the holder thereof or otherwise, and as if such payment were made
by the Company.
2. The Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of such Security or the Fiscal
Agency Agreement, the absence of any action to enforce the same,
any waiver or consent by the holder of such Security or any such
coupon or by the Fiscal Agent with respect to any provisions
thereof or of the Fiscal Agency Agreement, the recovery of any
judgment against the Company or any action to enforce the same or
any other circumstance which might otherwise constitute a legal
or equitable discharge or defense of a guarantor. The Guarantor
hereby waives diligence, presentment, demand of payment, filing
of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to such Security or
coupon or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Guarantee will not be
discharged except by complete performance of the obligations
contained in such Security and any such coupon and in this
Guarantee.
3. (a) The Guarantor will not merge or consolidate with,
or sell or convey all or substantially all of its assets to, any
other corporation, unless (i) either (A) the Guarantor shall be
the surviving corporation in the case of a merger, (B) the assets
sold or conveyed shall be owned by a corporation or corporations
which, immediately following such sale or conveyance, are at
least 51%-owned, directly or indirectly, by the Guarantor,
provided that such sale or conveyance does not result in the
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Guarantor, or (C) (I)
the surviving, resulting or transferee corporation shall
expressly assume the due and punctual performance of all of the
covenants and obligations of the Guarantor under the Guarantees
and Fiscal Agency Agreement, by supplemental agreement reasonably
PAGE
satisfactory to the Fiscal Agent, and (II) the Fiscal Agent shall
have received the documentation required in the context by the
Fiscal Agency Agreement and (ii) the Guarantor or such successor
corporation, as the case may be, shall not, immediately after
such merger, consolidation, sale or conveyance, be in default in
the performance of any covenants or obligations of the Guarantor
under the Guarantees or the Fiscal Agency Agreement.
(b) Upon any merger, consolidation, sale, conveyance
or assumption as provided in clause (i)(C) of Section 3(a), the
successor or assuming corporation shall succeed to and be
substituted for, and may exercise every right and power of and be
subject to all the obligations of, the Guarantor under the
Guarantees and Fiscal Agency Agreement, with the same effect as
if such successor or assuming corporation had been named as the
Guarantor therein and herein and the Guarantor shall be released
from its obligations as obligor under the Guarantees and Fiscal
Agency Agreement.
4. (a) The Guarantor, for itself, its successors and
assigns, covenants and agrees, and each holder of Securities by
his acceptance thereof, likewise covenants and agrees, that all
obligations of the Guarantor relating to payment of the principal
of, premium, if any, and interest and Additional Amounts
(pursuant to Section 2 of the Securities) on each and all of the
Securities and coupons is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of
payment to the prior payment in full of all Senior Indebtedness
of the Guarantor (as defined below).
_Senior Indebtedness of the Guarantor_ or _Senior
Indebtedness_ shall mean the principal of, premium, if any, and
interest on and all other amounts due on or with respect to the
following, whether outstanding at the date hereof or hereafter
created or incurred:
(i) indebtedness of the Guarantor for money
borrowed by the Guarantor (excluding the Guarantees, but
including purchase money obligations) whether or not evidenced by
debentures, bonds, notes or other corporate debt securities or
similar instruments issued by the Guarantor (including the
Guarantor's obligations with respect to its 5% Senior Convertible
Debentures due 2001; provided, however, that Senior Indebtedness
shall not include (a) the Guarantor's 4-1/4% Convertible
Subordinated Debentures due 2003, the obligations represented by
which shall rank pari passu with the obligations represented
hereby in right of payment, (b) the Guarantor's subordinated
guarantee of the principal, premium, if any, and interest on the
6-1/2% Convertible Subordinated Debentures due 1997 and the
4-5/8% Convertible Subordinated Debentures due 2003 of Thermo
TerraTech Inc., on the Non-Interest Bearing Convertible
Subordinated Debentures due 2001 and the 4-7/8% Convertible
Subordinated Debentures due 2004 of Thermo Ecotek Corporation, on
the Non-Interest Bearing Convertible Subordinated Debentures due
2003 of Thermedics Inc., on the 3-3/4% Convertible Subordinated
Debentures due 2000 of Thermo Voltek Corp., on the 4-7/8%
Convertible Subordinated Debentures due 2000 of Thermo
Remediation Inc., on the 5% Convertible Subordinated Debentures
due 2000 of ThermoQuest Corporation, and on the 5% Convertible
Subordinated Debentures due 2000 of Thermo Optek Corporation, the
PAGE
obligations represented by which shall rank pari passu with the
obligations represented hereby in right of payment and (c) the
Guarantor's subordinated guarantee of the obligations to redeem
the common stock of ThermoLyte Corporation, Thermo Fibergen Inc.
and ThermoLase Corporation the obligations represented by which
shall rank pari passu with the obligations represented hereby in
right of payment;
(ii) obligations to reimburse any bank or other
person in respect of amounts paid under letters of credit;
(iii) leases for real property, equipment or
other assets, which leases are capitalized in the Guarantor's
consolidated financial statements in accordance with generally
accepted accounting principles;
(iv) commitment, standby and other fees due and
payable to financial institutions with respect to credit
facilities available to the Guarantor;
(v) obligations of the Guarantor under interest
rate and currency swaps, floors, caps or other similar
arrangements intended to fix or hedge interest rate obligations
or currency exposure;
(vi) indebtedness secured by any mortgage, pledge,
lien or other encumbrance on property which is owned or held by
the Guarantor subject to such mortgage, pledge, lien or other
encumbrance, whether or not the indebtedness secured thereby
shall have been assumed by the Guarantor;
(vii) obligations of the Guarantor
constituting guarantees of indebtedness of or joint obligations
with another or others which would be included in the preceding
clauses (i), (ii), (iii), (iv), (v) or (vi) (including the
Guarantor's guarantee of the principal, premium, if any, and
interest on the 3-3/4% Senior Convertible Debentures due 2000 and
the 4-1/2% Senior Convertible Debentures due 2003 of Thermo
Instrument Systems Inc.); or
(viii) modifications, renewals, extensions or
refundings of any of the indebtedness, leases, fees or
obligations referred to in the preceding clauses (i), (ii),
(iii), (iv), (v), (vi) and (vii), or debentures, notes or other
evidences of indebtedness issued in exchange therefor;
provided that Senior Indebtedness shall not include any
particular indebtedness, lease, fee, obligation, modification,
renewal, extension, refunding or exchanged security if, under the
express provisions of the instrument creating or evidencing the
same, or pursuant to which the same is outstanding, such
indebtedness, lease, fee or obligation or such modification,
renewal, extension, refunding or exchanged security is stated to
be not superior in right of payment to the Guarantees.
(b) (i) In the event of any insolvency or bankruptcy
proceedings, or any receivership, liquidation, reorganization or
other similar proceedings in connection therewith, relative to
the Guarantor or it its creditors, in their capacity as such
creditors, or to its property, or in the event of any proceedings
PAGE
for voluntary liquidation, dissolution or other winding up of the
Guarantor, whether or not involving insolvency or bankruptcy, or
in the event of any assignment for the benefit of creditors of
the Guarantor or any marshalling of assets of the Guarantor, then
the holders of Senior Indebtedness of the Guarantor shall first
be entitled to receive payment in full of the principal of (and
premium, if any) and interest, including interest thereon
accruing after the commencement of any such proceeding, and other
amounts due on or with respect to, all Senior Indebtedness of the
Guarantor before the holders of any of the Securities and coupons
shall be entitled to receive any payment on account of the
obligations of the Guarantor relating to the principal of,
premium, if any, or interest and Additional Amounts (pursuant to
Section 2 of the Securities) on the Securities and coupons, and
to that end the holders of Senior Indebtedness of the Guarantor
shall be entitled to receive for application in payment thereof
any payment or distribution of any kind or character, whether in
cash, property or securities, which may be payable or deliverable
in any such proceedings in respect of the obligations of the
Guarantor relating to the Securities and coupons, other than
securities of the Guarantor as reorganized or readjusted or
securities of the Guarantor or any other corporation provided for
by a plan of reorganization or readjustment the payment of which
is subordinate, at least to the extent provided in this Section 4
with respect to the obligations of the Guarantor relating to the
Securities and coupons, to the payment of all Senior Indebtedness
of the Guarantor, provided that the rights of the holders of
Senior Indebtedness of the Guarantor are not altered by such
reorganization or readjustment. For the purposes of this
Section 4, no consolidation, merger, conveyance or transfer made
pursuant to the provisions of Section 3 shall be deemed to be a
liquidation, reorganization, dissolution or other winding up of
the Guarantor.
(ii) If under the circumstances set forth in
paragraph (i) of this subsection, and notwithstanding the
provisions thereof, any payment or distribution of assets of the
Guarantor of any kind, whether in cash, property, or securities
(other than securities of the Guarantor as reorganized or
readjusted or securities of the Guarantor or any other
corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinated, at least to
the extent provided in this Section 4 with respect to the
obligations of the Guarantor relating to the Securities and
coupons, to the payment of all Senior Indebtedness of the
Guarantor, provided that the rights of the holders of Senior
Indebtedness of the Guarantor are not altered by such
reorganization or readjustment), shall be received by the holders
of the Securities in respect of the obligations of the Guarantor
before all Senior Indebtedness of the Guarantor is paid in full,
such payment or distribution shall be paid over to the holders of
Senior Indebtedness of the Guarantor, ratably, for application to
the payment of all Senior Indebtedness of the Guarantor remaining
unpaid until all Senior Indebtedness of the Guarantor shall have
been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness of the
Guarantor.
(iii) Upon any distribution of assets of the
Guarantor referred to in this Section, the holders of Securities
PAGE
shall be entitled to rely upon any final order or decree of a
court of competent jurisdiction in which such dissolution,
winding up, liquidation or reorganization proceedings are
pending, and the holders of Securities shall be entitled to rely
upon a certificate of the liquidating trustee or agent or other
person making any distribution to the holders of Securities for
the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of Senior Indebtedness of the
Guarantor and other indebtedness of the Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Section.
(c) (i) Upon the maturity of any Senior Indebtedness
of the Guarantor by lapse of time, acceleration or otherwise, all
principal thereof (and premium, if any) and interest due thereon,
including interest thereon accruing after the commencement of any
proceeding of the type referred to in paragraph (i) of
Section 4(b) above, and all other amounts due on or with respect
thereto, shall first be paid in full, or such payment duly
provided for in cash, before any payment, directly or indirectly,
is made on account of the obligations of the Guarantor relating
to the principal of, premium, if any, or interest and Additional
Amounts (pursuant to Section 2 of the Securities) on the
Securities or coupons.
(ii) Upon the happening of an event of default
with respect to any Senior Indebtedness of the Guarantor, as
defined therein or in the instrument under which it is
outstanding, permitting the holders to accelerate the maturity
thereof, then, unless and until such event of default shall have
been cured or waived or shall have ceased to exist, no payment
shall be made by the Guarantor, directly or indirectly, on
account of the obligations of the Guarantor relating to the
principal of, premium, if any, or interest and Additional Amounts
(pursuant to Section 2 of the Securities) on the Securities and
coupons.
(d) In case cash, securities or other property
otherwise payable or deliverable to the holders of the Securities
on account of the Guarantees shall have been applied, pursuant to
Section 4(b) or (c), to the payment of Senior Indebtedness of the
Guarantor, then, upon the payment in full of all Senior
Indebtedness of the Guarantor, the holders of the Securities and
coupons shall be subrogated to any rights of any holders of
Senior Indebtedness of the Guarantor, to receive any further
payments or distributions applicable to Senior Indebtedness of
the Guarantor until the obligations of the Guarantor in respect
of the Guarantees shall have been discharged in full, and such
payments or distributions received by the holders of the
Securities and coupons, by reason of such subrogation, of cash,
securities or other property which otherwise would be paid or
distributed to the holders of Senior Indebtedness of the
Guarantor, shall, as between the Guarantor and its creditors
other than the holders of Senior Indebtedness of the Guarantor,
on the one hand, and the holders of the Securities and coupons on
account of the Guarantees, on the other hand, be deemed to be a
payment by the Guarantor on account of Senior Indebtedness of the
Guarantor and not on account of the Securities and coupons.
PAGE
(e) No present or future holder of any Senior
Indebtedness of the Guarantor shall be prejudiced in any way in
the right to enforce the subordination of the Guarantees by any
act or failure to act on the part of the Guarantor. The
provisions of this Section 4 are solely for the purpose of
defining the relative rights of the holders of Senior
Indebtedness of the Guarantor, on the one hand, and the holders
of the Securities and coupons on account of the Guarantees, on
the other hand, against the Guarantor and its assets, and nothing
contained in this Section 4 shall impair, as between the
Guarantor and the holder of any Security or coupon, the
obligation of the Guarantor, which is unconditional and absolute,
to perform in accordance with the terms of its Guarantees, or
prevent the holder of any Security or coupon, upon default
hereunder or under such Security or coupon, from exercising all
rights, powers and remedies otherwise provided herein or therein
or by applicable law, all subject to the rights of the holders of
Senior Indebtedness of the Guarantor under this Section 4 to
receive cash, property or securities otherwise payable or
deliverable to the holders of the Securities and coupons on
account of the Guarantees.
(f) Nothing contained in this Section 4 or in any
Guarantees shall prevent at any time, except under the conditions
described in Sections 4(b) and (c) hereof or during the pendency
of any dissolution, winding up, liquidation or reorganization
proceedings therein referred to, the Guarantor from performing
its obligations under the Guarantees.
5. The Guarantor shall be subrogated to all rights of the
holders of the Securities and of any coupons against the Company
in respect of any amounts paid by the Guarantor pursuant to the
provisions of this Guarantee; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any
payments arising out of, or based upon, such right of subrogation
until the principal of, premium, if any, and interest on and
Additional Amounts (pursuant to Section 2 of the Securities, if
any, on) all of the Securities shall have been paid in full.
6. THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES
OF AMERICA WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS RULES.
7. All terms used in this Guarantee which are defined in
the Fiscal Agency Agreement shall have the meanings assigned to
them in the Fiscal Agency Agreement.
8. Subject to the next following paragraph, the Guarantor
hereby certifies and warrants that all acts, conditions and
things required to be done and performed and to have happened
precedent to the creation and issuance of this Guarantee and to
constitute the same a legal, valid and binding obligations of the
Guarantor enforceable in accordance with their terms, have been
done and performed and have happened in due and strict compliance
with all applicable laws.
9. This Guarantee shall not become valid or obligatory for
any purpose until the certificate of authentication on the
Security upon which this Guarantee is endorsed shall have been
PAGE
duly signed by the Fiscal Agent acting under the Fiscal Agency
Agreement.
PAGE
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee
to be duly executed in its corporate name by the manual or
facsimile signature of a duly authorized officer.
Dated:
THERMO ELECTRON CORPORATION
By:
Name:
Title:
Attest:
-------------------------
PAGE
EXHIBIT C
Form of Certificate to be Given by
The Euroclear Operator and Cedel Bank, societe anonyme
CERTIFICATION
U.S. $
THERMO CARDIOSYSTEMS INC.
4 3/4% Convertible Subordinated Debentures
due May 15, 2004
(the "Securities")
This is to certify that, based solely on certifications we
have received in writing, by tested telex or electronic
transmission from member organizations appearing in our records
as persons being entitled to a portion of the principal amount
set forth below or to interest payable on an interest payment
date (our "Member Organizations"), substantially to the effect
set forth in the Fiscal Agency Agreement relating to the
above-captioned Securities, as of the date hereof, U.S.
$_______________ aggregate principal amount of the
above-captioned Securities is owned by persons that are not
citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source or any other person deemed a
"United States person" or a "U.S. person" under the Internal
Revenue Code of 1986, as amended, or Regulation S under the U.S.
Securities Act of 1933, as amended ("United States persons").
The following denominations of Bearer Securities are
requested:
No. of Amount
Certificates
$1,000 ______________ = $________________
Denomination __
$10,000 ______________ = $________________
Denomination __
Total Requested ______________ = $________________
__
We further certify (i) that we are not making available
herewith for exchange any portion of the Regulation S Global
Security excepted in such certifications and (ii) that as of the
date hereof we have not received any notification from any of our
Member Organizations to the effect that the statements made by
such Member Organization with respect to any portion of the part
submitted herewith for exchange are no longer true and cannot be
relied upon as of the date hereof. We further certify that
interest payable on the interest payment dates on November 15 and
May 15 will be paid with respect to U.S. $ principal
-------------
PAGE
amount of the Securities with respect to which we have received
from Member Organizations certificates substantially in the form
set out in Exhibit D to the Fiscal Agency Agreement relating to
the Securities that the Securities (a) are owned by a person
(other than a financial institution for purposes of resale during
the restricted period) who is not a United States person; (b) are
owned by a United States person (other than a financial
institution for purposes of resale during the restricted period)
who is (i) a foreign branch of a United States financial
institution or (ii) a United States person who acquired such
Securities through the foreign branch of a United States
financial institution and who for purposes of this certification
holds such Securities through such financial institution on the
date hereof and, in either case, such United States financial
institution has agreed, for the benefit of the Company, to comply
with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as from time to time
amended, and the regulations thereunder; or (c) are owned by a
financial institution for purposes of resale during the
restricted period and such financial institution has certified
that it has not acquired such Securities for purposes of resale
directly or indirectly to a United States person or to a person
within the United States or its possessions.
To the extent that we have knowledge that any of such
certificates from a Member Organization is false and to the
extent that we have not received with respect to any Securities
such certificates from Member Organization, we are not requesting
that payment be made for interest with respect thereto.
We further certify that as of the date hereof we have not
received any notification from any of our Member Organizations to
the effect that the statements made by such Member Organization
with respect to any interest payment on any portion of the
principal amount of the Securities are no longer true and cannot
be relied upon as of the date hereof. We further certify that
under the rules of the undersigned organization, each Member
Organization has agreed that any electronic certification shall
have the effect of a signed certification and that all
certifications shall be retained for at least four calendar years
following the year in which the certifications are received in
compliance with the rules set forth under Treas. Reg. _1. 163-5
(c) (2) (i) (D) (3) (i).
We undertake that any interest received by us and not paid
as provided above shall be returned to the Fiscal Agent for the
above-captioned Securities immediately prior to the expiration of
two years after such interest payment date in order to be repaid
by such Fiscal Agent to the above issuer at the end of two years
after such interest payment date.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this
certification to any interested party in such proceedings.
PAGE
As used herein, _United States_ means the United States of
America (including the States and the District of Columbia); and
its territories and possessions, including Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands. As used herein, _restricted period_
means the period described in Section 1. 163-5(c)(2)(i)(D)(7) of
the Treasury Regulations and _financial institution_ means the
persons described in Section 1. 165-12(c)(1)(v) of the Treasury
Regulations.
Dated: ____________________,
Yours faithfully,
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW
YORK, BRUSSELS OFFICE, AS OPERATOR OF THE EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]4**
By:_____________________________
4 ** Delete as appropriate.
PAGE
EXHIBIT D
Form of Certificate of Beneficial Ownership for
Bearer Securities to be Provided to the
Euroclear Operator or to Cedel Bank, societe anonyme
CERTIFICATION
U.S. $____________
THERMO CARDIOSYSTEMS INC.
4 3/4% Convertible Subordinated Debentures
due May 15, 2004
(the "Securities")
This is to certify that as of the date hereof and except as
set forth below, $___________ aggregate principal amount of the
above-mentioned Securities held by you for our account are owned
or, if this certificate is being delivered in connection with a
payment of interest, were owned, by or on behalf of, (a) a person
(other than a financial institution for purposes of resale during
the restricted period) who is not a United States person; or (b)
a United States person (other than a financial institution for
purposes of resale during the restricted period) who is (i) a
foreign branch of a United States financial institution or (ii) a
United States person acquiring such Securities through the
foreign branch of a United States financial institution and who
for purposes of this certification holds such Securities through
such financial institution on the date hereof, and, in the case
of either (i) or (ii), such United States financial institution
has agreed, for the benefit of the Company, to comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United
States Internal Revenue Code of 1986, as from time to time
amended, and the regulations thereunder; or (c) a financial
institution for purposes of resale during the restricted period
and such financial institution has not acquired such Securities
for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its
possessions; and the undersigned has obtained a similar
certificate from its member organizations on which this
certificate is based; provided, however, that if the undersigned
has actual knowledge that the information contained in such a
certificate is false (and, absent documentary evidence that the
beneficial owner of such Security is not a United states person,
it will be deemed to have actual knowledge that such certificate
is false if it has a United States address for such beneficial
owner, other than a financial institution described above), the
undersigned will not deliver a Security in temporary or
definitive bearer form to the person who signed such certificate
notwithstanding the delivery of such certificate to the
undersigned.
PAGE
No. of Amount
Certificates
$1,000 = $
-------------- ----------------
Denomination __
$10,000 = $
-------------- ----------------
Denomination __
Total Requested = $
-------------- ----------------
__
As used herein, (i) "United States person" means a citizen
or resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the
United States and an estate or trust the income of which is
subject to United States Federal income taxation regardless of
its source or any other person deemed a "United States person" or
a "U.S. person" under the Internal Revenue Code of 1986, as
amended, or Regulation S under the U.S. Securities Act of 1933,
as amended, (ii) "United States" means the United States of
America (including the States and the District of Columbia) and
its territories and possessions, including Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands, (iii) "restricted period" means the
period described in Section 1.163-5(c)(2)(i)(D)(7) of the
Treasury Regulations, and (iv) "financial institution" means the
persons described in Section 1. 165-12(c)(1)(v) of the United
States Treasury Regulations.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your
certification relating to the Securities held by you for our
account in accordance with your operating procedures if any
applicable statement herein is not correct on such date, and in
the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to
U.S. $_______________ of such interest in the above Securities in
respect of which we are not able to certify and as to which we
understand exchange and delivery of definitive Securities cannot
be made until we do so certify.
PAGE
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain
securities laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this
certification or a copy hereof to any interested party in such
proceedings.
Dated: ___________________, 199X56*
[Name]
By:_________________________
Signature
As, or as agent for, the
beneficial owner[s] of the Securities to which this certificate
relates.
5
6 * Not earlier than 15 days prior to the date which is 40
days after May 14, 1997.
PAGE
EXHIBIT E
Form of Certificate of Beneficial Ownership
for Registered Securities to be Provided to the
Euroclear Operator or to Cedel Bank, societe anonyme
CERTIFICATION
U.S. $____________
THERMO CARDIOSYSTEMS INC.
4 3/4% Convertible Subordinated Debentures
due May 15, 2004
(the _Securities_)
Please issue U. S. $_______ of the U.S. $________ aggregate
principal amount of the Securities held by you for our account in
registered form. We hereby certify to you that we are not a
"U.S. Person" as defined in Regulation S under the United States
Securities Act of 1933, as amended or a "United States person" as
defined under the Internal Revenue Code of 1986, as amended,
except as provided in U.S. Treasury Regulation
Section 1.163-5(c)(2)(i)(D). The exact name of the beneficial
holder that the Securities are to be registered in is as follows:
The following denomination(s) of Registered Securities are
requested (integral multiples of $1,000):
No. of Amount
------ ------
Denominations Certificates
------------- ------------
$ = $
--------------- -------------- ----------------
__ __
= $
---------------- -------------- ----------------
__ __
________________ ______________ = $________________
__ __
= $
---------------- -------------- ----------------
__ __
______________ = $________________
Total Requested
--
PAGE
[This certificate does not constitute such certification [or
We hereby certify that we have provided such certification] on
Form W-8 or its equivalent as may be necessary to avoid
imposition of withholding and/or back-up withholding under U.S.
federal tax law with respect to any payments of interest on the
Securities.]
We irrevocably authorize you to produce this certificate or
a copy hereof to any interested party in any administrative or
proceedings with respect to the matters covered by this
certificate.
Dated: __________________, 199X78*
Yours faithfully,
[NAME]
By:
Signature
To be completed by the account
holder as, or as agent for, the beneficial owner(s) of the
Securities to which this certificate relates.
7
8 * To be dated not earlier than the date which is 40 days
after May 14, 1997.
PAGE
EXHIBIT F
Form of Certificate to be Given by
The Euroclear Operator and Cedel Bank, societe anonyme
CERTIFICATION
U.S. $_____________
THERMO CARDIOSYSTEMS INC.
4 3/4% Convertible Subordinated Debentures
due May 15, 2004
(the _Securities_)
This is to certify that, based solely on certifications we
have received in writing, by tested telex or electronic
transmission from member organizations appearing in our records
as persons being entitled to a portion of the principal amount
set forth below (our "Member Organizations"), substantially to
the effect set forth in the Fiscal Agency Agreement, as of the
date hereof, U.S. $___________ aggregate principal amount of the
above-captioned Securities is owned by persons that are not
citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the
income of which is subject to United States Federal income
taxation regardless of its source (except as provided in U.S.
Treasury Regulation Section 1.163-5(c)(2)(i)(D)) or any other
person deemed a "U.S. person" under Regulation S under the U.S.
Securities Act of 1933, as amended.
The following denomination(s) of Registered Securities are
requested (integral multiples of $1,000):
No. of Amount
------ ------
Certificates
------------
$1,000 = $
-------------- ----------------
Denomination __
$10,000 = $
-------------- ----------------
Denomination __
Total Requested = $
-------------- ----------------
__
We further certify (i) that we are not making available
herewith for exchange (or, if relevant, exercise of any rights or
collection of any interest) any portion of the Regulation S
Global Security excepted in such certifications and (ii) that as
of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements
made by such Member Organization with respect to any portion of
the part submitted herewith for exchange (or, if relevant,
exercise of any rights or collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax laws and, if applicable, certain
PAGE
securities laws of the United States. In connection therewith,
if administrative or legal proceedings are commenced or
threatened in connection with which this certification is or
would be relevant, we irrevocably authorize you to produce this
certification to any interested party in such proceedings.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and
its territories and possessions, including Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
Dated: __________________, 199X910*
Yours faithfully,
[▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK, BRUSSELS OFFICE, AS OPERATOR OF THE EUROCLEAR SYSTEM]
[CEDEL BANK, SOCIETE ANONYME]
By:__________________________________
9
10 * To be dated no earlier than the date which is 40 days
after May 14, 1997.
PAGE
EXHIBIT G
FORM OF TRANSFEREE LETTER
Thermo Cardiosystems Inc.
and
Ladies and Gentlemen:
We are delivering this letter in connection with the
purchase of 4-3/4% Convertible Subordinated Debentures due 2004
(the "Debentures") of Thermo Cardiosystems Inc., a Massachusetts
corporation (the "Company"), which are convertible into shares of
Common Stock of the Company (the "Underlying Shares" and together
with the Debentures, the "Restricted Securities"), all as
described in the Company's Offering Circular dated May 9, 1997
(the "Offering Circular").
We represent, warrant and agree as follows:
1. We understand and hereby acknowledge that the
Debentures and, prior to the effectiveness of a registration
statement filed with the Securities and Exchange Commission
relating to the resale of the Underlying Shares, the Underlying
Shares have not been registered under the Securities Act of 1933,
as amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We agree on our own behalf
and on behalf of any investor account (as hereinafter defined)
for which we are purchasing the Debentures to offer, sell or
otherwise transfer such Restricted Securities prior to the date
which is three years (or the then applicable holding period under
Rule 144(k) under the Securities Act (or successor provision))
after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the
owner of such Restricted Securities (or any predecessor thereto)
(the "Resale Restriction Termination Date") only (a) to the
Company, (b) pursuant to a registration statement which has been
declared effective under the Securities Act, (c) for so long as
the Debentures are eligible for resale pursuant to Rule 144A
under the Securities Act, to a person we reasonably believe is a
qualified institutional buyer under Rule 144A (a "QIB") that
purchases for its own account or for the account of a QIB to whom
notice is given that the transfer is being made in reliance on
Rule 144A, (d) outside the United States in a transaction meeting
the requirements of Rule 904 of Regulation S under the Securities
Act, (e) in a transaction arranged by a broker or dealer
registered under the Securities Exchange Act of 1934, as amended,
to an institutional "accredited investor" within the meaning of
subparagraph (a)(1), (2), (3), or (7) of Rule 501 under the
Securities Act (an "Institutional Accredited Investor") that is
purchasing Restricted Securities for its own account or for the
account of such Institutional Accredited Investor, for investment
purposes and not with a view to, or for offer or sale in
connection with, any distribution in violation of the Securities
Act or (f) pursuant to any other available exemption from the
registration requirements of the Securities Act as confirmed in
an opinion of counsel, acceptable in form and substance to the
Company, and, in each case, in accordance with the applicable
PAGE
securities laws of any state of the United States or any other
applicable jurisdiction and subject to any requirement of law
that the disposition of our property or the property of such
investor account or accounts be at all times within our or their
control and in compliance with any applicable state securities
laws. The foregoing restrictions on resale will not apply
subsequent to the Resale Restriction Termination Date. If any
resale or other transfer of the Restricted Securities is proposed
to be made pursuant to clause (e) above prior to the Resale
Restriction Termination Date, the transferor shall deliver a
letter from the transferee containing representations and
agreements substantially the same as those contained herein. We
acknowledge that the Company and the U.S. Agent reserve the right
prior to any offer, sale or other transfer prior to the Resale
Restriction Termination Date of the Debentures and Common Stock
pursuant to clause (d), (e) or (f) above to require the delivery
of an opinion of counsel, certifications or other information
acceptable to the Company and the U.S. Agent in form and
substance.
2. We are an Institutional Accredited Investor within
the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act.
3. Any purchase of Restricted Securities by us will
be for our own account or for the account of one or more other
Institutional Accredited Investors (an _investor account_) as to
which we exercise sole investment discretion.
4. We are not acquiring the Restricted Securities
with a view to, or for offer or sale in connection with, any
distribution in violation of the Securities Act.
5. We have such knowledge and experience in financial
and business matters as to be capable of evaluating the merits
and risks of purchasing the Restricted Securities, and we and any
investor account for which we are acting are each able to bear
the economic risk of our or its investment.
6. We have received a copy of the Offering Circular
and acknowledge that we have had access to such financial and
other information, and have been afforded the opportunity to ask
such questions of representatives of the Company and the
Guarantor and receive answers thereto, as we deem necessary in
connection with our decision to purchase Restricted Securities.
We understand that the registrar and transfer agent will not
be required to accept for registration of transfer any Restricted
Securities, except upon presentation of evidence satisfactory to
the Company and the Fiscal Agent that the foregoing restrictions
on transfer have been complied with. We further understand that
the Restricted Securities will be in the form of definitive
physical certificates and that such certificates will bear a
legend reflecting the substance of paragraph 1 above.
We shall provide to any person purchasing any Restricted
Securities from us a notice advising such purchaser that
transfers of the Debentures and the Underlying Shares are
restricted as set forth herein.
PAGE
We understand that prior to any proposed offer of Debentures
occurring before the Resale Restriction Termination Date, we must
check the appropriate box set forth on the reverse of the
certificate evidencing such Debentures relating to the manner of
such transfer and submit the certificates to the Fiscal Agent.
In addition, we understand that prior to any proposed transfer of
Debentures or any proposed offer of Underlying Shares acquired
upon conversion of Debentures when there is not effective
registration statement covering such Underlying Shares to an
institutional accredited investor occurring before the Resale
Restriction Termination Date, we may be required to furnish to
the Company and the Fiscal Agent such certifications, legal
opinion or other information as they may reasonably require to
confirm that the proposed transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, and that
transfers occurring before the Resale Restriction Termination
Date to any other person pursuant to another available exemption
under the Securities act will require an opinion of counsel
satisfactory to the Company.
We acknowledge that you and others will rely upon our
confirmations, acknowledgments and agreements set forth herein,
and we agree to notify you promptly in writing of any of our
representations or warranties herein ceases to be accurate and
complete. You are irrevocably authorized to produce this letter
or a copy hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the matters
covered hereby.
THIS LETTER SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Very truly yours,
_____________________________
(Name of Purchaser)
By:___________________________
Name:
Title:
Address:
