Exhibit 4.1
Greater Bay Bancorp
Zero Coupon Senior Convertible Contingent
Debt Securities due 2022
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INDENTURE
Dated as of April 24, 2002
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Wilmington Trust Company
TRUSTEE
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TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions ............................................................... 1
Section 1.2 Other Definitions ......................................................... 6
Section 1.3 Incorporation by Reference of Trust Indenture Act ......................... 7
Section 1.4 Rules of Construction ..................................................... 7
Section 1.5 Acts of Holders ........................................................... 8
ARTICLE II THE SECURITIES
Section 2.1 Form and Dating ........................................................... 9
Section 2.2 Execution and Authentication .............................................. 10
Section 2.3 Registrar, Paying Agent and Conversion Agent .............................. 10
Section 2.4 Paying Agent to Hold Money and Securities in Trust ........................ 11
Section 2.5 Securityholder Lists ...................................................... 11
Section 2.6 Transfer and Exchange ..................................................... 11
Section 2.7 Replacement Securities .................................................... 13
Section 2.8 Outstanding Securities; Determinations of Holders' Action ................. 13
Section 2.9 Temporary Securities ...................................................... 14
Section 2.10 Cancellation .............................................................. 14
Section 2.11 Persons Deemed Owners ..................................................... 15
Section 2.12 Global Securities ......................................................... 15
Section 2.13 CUSIP Numbers ............................................................. 19
Section 2.14 Ranking ................................................................... 20
ARTICLE III REDEMPTION AND PURCHASES
Section 3.1 Right to Redeem; Notices to Trustee ....................................... 20
Section 3.2 Selection of Securities to Be Redeemed .................................... 20
Section 3.3 Notice of Redemption ...................................................... 21
Section 3.4 Effect of Notice of Redemption ............................................ 21
Section 3.5 Deposit of Redemption Price ............................................... 21
Section 3.6 Securities Redeemed in Part ............................................... 22
Section 3.7 Purchase of Securities at Option of the Holder ............................ 22
Section 3.8 Purchase of Securities at Option of the Holder upon Change in Control ..... 24
Section 3.9 Effect of Purchase Notice or Change in Control Purchase Notice ............ 27
Section 3.10 Deposit of Purchase Price or Change in Control Purchase Price ............. 28
Section 3.11 Securities Purchased in Part .............................................. 29
Section 3.12 Covenant to Comply With Securities Laws Upon Purchase of Securities ....... 29
Section 3.13 Repayment to the Company .................................................. 29
ARTICLE IV COVENANTS
Section 4.1 Payment of Securities ..................................................... 29
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Section 4.2 SEC and Other Reports ................................. 30
Section 4.3 Compliance Certificate ................................ 30
Section 4.4 Further Instruments and Acts .......................... 30
Section 4.5 Maintenance of Office or Agency ....................... 30
Section 4.6 Delivery of Certain Information ....................... 31
Section 4.7 Tax Treatment of Securities ........................... 31
ARTICLE V SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets ............. 31
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.1 Events of Default ..................................... 32
Section 6.2 Acceleration .......................................... 33
Section 6.3 Other Remedies ........................................ 34
Section 6.4 Waiver of Past Defaults ............................... 34
Section 6.5 Control by Majority ................................... 34
Section 6.6 Limitation on Suits ................................... 35
Section 6.7 Rights of Holders to Receive Payment .................. 35
Section 6.8 Collection Suit by Trustee ............................ 35
Section 6.9 Trustee May File Proofs of Claim ...................... 35
Section 6.10 Priorities ........................................... 36
Section 6.11 Undertaking for Costs ................................ 36
Section 6.12 Waiver of Stay, Extension or Usury Laws .............. 37
ARTICLE VII TRUSTEE
Section 7.1 Duties of Trustee ..................................... 37
Section 7.2 Rights of Trustee ..................................... 38
Section 7.3 Individual Rights of Trustee .......................... 40
Section 7.4 Trustee's Disclaimer .................................. 40
Section 7.5 Notice of Defaults .................................... 40
Section 7.6 Reports by Trustee to Holders ......................... 40
Section 7.7 Compensation and Indemnity ............................ 40
Section 7.8 Replacement of Trustee ................................ 41
Section 7.9 Successor Trustee by Merger ........................... 42
Section 7.10 Eligibility; Disqualification ........................ 42
Section 7.11 Preferential Collection of Claims Against Company .... 42
ARTICLE VIII DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities .................. 42
Section 8.2 Repayment to the Company .............................. 42
ARTICLE IX AMENDMENTS
Section 9.1 Without Consent of Holders ............................ 43
Section 9.2 With Consent of Holders ............................... 43
Section 9.3 Compliance with Trust Indenture Act ................... 44
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Section 9.4 Revocation and Effect of Consents, Waivers and Actions ........................................... 44
Section 9.5 Notation on or Exchange of Securities ............................................................ 44
Section 9.6 Trustee to Sign Supplemental Indentures .......................................................... 44
Section 9.7 Effect of Supplemental Indentures ................................................................ 44
ARTICLE X CONVERSIONS
Section 10.1 Conversion Privilege ............................................................................. 45
Section 10.2 Conversion Procedure; Conversion Price; Fractional Shares ........................................ 46
Section 10.3 Adjustments of Conversion Rate for Common Stock .................................................. 47
Section 10.4 Consolidation or Merger of the Company ........................................................... 56
Section 10.5 Notice of Adjustment ............................................................................. 58
Section 10.6 Notice in Certain Events ......................................................................... 58
Section 10.7 Company to Reserve Stock; Registration; Listing .................................................. 59
Section 10.8 Taxes on Conversion .............................................................................. 59
Section 10.9 Conversion After Record Date ..................................................................... 59
Section 10.10 Company Determination Final ...................................................................... 60
Section 10.11 Responsibility of Trustee for Conversion Provisions .............................................. 60
Section 10.12 Unconditional Right of Holders to Convert ........................................................ 60
ARTICLE XI MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls ..................................................................... 61
Section 11.2 Notices .......................................................................................... 61
Section 11.3 Communication by Holders with Other Holders ...................................................... 62
Section 11.4 Certificate and Opinion as to Conditions Precedent ............................................... 62
Section 11.5 Statements Required in Certificate or Opinion .................................................... 62
Section 11.6 Separability Clause .............................................................................. 62
Section 11.7 Rules by Trustee, Paying Agent, Conversion Agent and Registrar .................................. 62
Section 11.8 Legal Holidays ................................................................................... 62
Section 11.9 GOVERNING LAW .................................................................................... 63
Section 11.10 No Recourse Against Others ....................................................................... 63
Section 11.11 Successors ....................................................................................... 63
Section 11.12 Multiple Originals ............................................................................... 63
INDENTURE dated as of April 24, 2002 between GREATER BAY BANCORP, a
California corporation ("Company"), and WILMINGTON TRUST COMPANY, a Delaware
banking corporation, as trustee ("Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Company's Zero Coupon
Senior Convertible Contingent Debt Securities due 2022:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions
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"144A Global Security" means a permanent Global Security in the form
of the Security attached hereto as Exhibit A-1, and that is deposited with and
registered in the name of the Depositary, representing Securities sold in
reliance on Rule 144A under the Securities Act.
"Accreted Conversion Price", with respect to a Security as of any
date, shall mean the quotient of (x) the sum of the Issue Price of the Security
plus the accreted Issue Discount on such security to such date, divided by (y)
the Conversion Rate then in effect.
"additional amounts" shall have the meaning specified in the
Registration Rights Agreement.
"Affiliate" of any specified person means any other person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Average Conversion Value" means, with respect to any period, the sum
of the Conversion Values for each trading day during the period divided by the
number of trading days in the period.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
"Business Day" means, with respect to any Security, a day that in the
City of New York, is not a day on which banking institutions are authorized by
law or regulation to close or a day that is not a day on which the Corporate
Trust Office of the Trustee is closed for business.
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"Calculation Agent" shall mean initially the Trustee and its
successors and assigns.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Certificated Securities" means Securities that are in the form of
the Securities attached hereto as Exhibit A-2.
"Closing Price" of the shares of Common Stock on any date means the
closing per share sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and average ask prices) on such date as reported on
the Nasdaq National Market or, if the shares of Common Stock are not listed on
the Nasdaq National Market, as reported on the principal securities exchange or
inter-dealer quotation system on which the shares of Common Stock are then
quoted. In the absence of such quotations, the Company shall be entitled to
determine the sales price on the basis of such quotations as it considers
appropriate.
"Common Stock" shall mean the shares of common stock, no par value
per share, of the Company as they exist on the date of this Indenture or any
other shares of Capital Stock of the Company into which such common stock shall
be reclassified or changed.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any two Officers.
"Conversion Period" means the period from and including the 30th
Trading Day in a fiscal quarter to, but not including, the 30th Trading Day in
the immediately following fiscal quarter.
"Conversion Value" means, at any time, the product of (x) the Closing
Price at such time and (y) the then-current Conversion Rate.
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at c/o Wilmington Trust Company, Xxxxxx
Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000,
Attention: Corporate Trust Administration, or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the Holders
and the Company).
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
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"Ex-Dividend Time" means, with respect to any issuance or
distribution on shares of Common Stock, the first date on which the shares of
Common Stock trade regular way on the principal inter-dealer quotation system or
securities market on which the shares of Common Stock are then traded without
the right to receive such issuance or distribution.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Global Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A-1, and to the extent that such
Securities are required to bear the Legend required by Section 2.6, such
Securities will be in the form of a 144A Global Security.
"Holder" or "Securityholder" means a person in whose name a Security
is registered on the Registrar's books.
"Indebtedness" means, without duplication, the principal or face
amount of (i) all obligations for borrowed money, (ii) all obligations evidenced
by debentures, notes or other similar instruments, (iii) all obligations in
respect of letters of credit or bankers acceptances or similar instruments (or
reimbursement obligations with respect thereto), (iv) all obligations to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (v) all obligations as lessee which
are capitalized in accordance with generally accepted accounting principles, and
(vi) all Indebtedness of others guaranteed by the Company or any of its
Subsidiaries or for which the Company or any of its Subsidiaries is legally
responsible or liable (whether by agreement to purchase indebtedness of, or to
supply funds or to invest in, others).
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof, including the provisions of
the TIA that are deemed to be a part hereof.
"Initial Purchasers" means Xxxxxx Brothers Inc. and Xxxxxxx X'Xxxxx &
Partners, L.P., as initial purchasers under the Purchase Agreement.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Issue Discount" of any Security means the difference between the
Issue Price and the Principal Amount at Maturity of the Security as set forth on
the face of the Security.
"Issue Price" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is sold
as set forth on the face of the Security.
"Moody's" means Xxxxx'x Investor Services, Inc.
"Officer" means the Chairman of the Board, the Vice Chairman, the
Chief Executive Officer, the President, any Executive Vice President, any Senior
Vice President, any Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or Assistant Secretary of the Company.
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"Officers' Certificate" means a written certificate containing the
information specified in Sections 11.4 and 11.5, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.3 shall be signed by an authorized
financial or accounting Officer of the Company but need not contain the
information specified in Sections 11.4 and 11.5.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 11.4 and 11.5, from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
"Outstanding", when used with respect to a Security, means, as of the
date of determination, all Securities heretofore authenticated and delivered
under this Indenture, except Securities:
(1) previously canceled by the Trustee or delivered to the Trustee
for cancellation;
(2) for the payment or redemption of which money in the necessary
amount has been previously deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the Holders of such
Securities; provided, however, that if such Securities are to be redeemed,
notice of such redemption has been duly given pursuant to this Indenture; and
(3) which have been paid in exchange for or in lieu of other
Securities which have been authenticated and delivered pursuant to this
Indenture, other than any such Security in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company.
"person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Principal Amount at Maturity" of a Security means the Principal
Amount at Maturity as set forth on the face of the Security.
"Purchase Agreement" means the Purchase Agreement, dated as of April
18, 2002, among the Company and the Initial Purchasers relating to the offering
and sale of the Securities.
"Redemption Date" or "redemption date" shall mean the date specified
for redemption of the Securities in accordance with the terms of the Securities
and this Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in paragraph 5 of the Securities.
"Registration Rights Agreement" means the Resale Registration Rights
Agreement dated as of April 24, 2002 among the Company and the Initial
Purchasers.
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"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer of the Trustee within the Corporate Trust Office of the
Trustee with direct responsibility for the administration of this Indenture and
shall also mean, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such person's knowledge of
and familiarity with the particular subject.
"Restricted Security" means a Security required to bear the
restrictive legend set forth in the form of Security set forth in Exhibits A-1
and A-2 of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's Zero Coupon Senior
Convertible Contingent Debt Securities (CODESSM) due 2022, as amended or
supplemented from time to time, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securityholder" or "Holder" means a person in whose name a Security
is registered on the Registrar's books.
"Standard & Poor's" means Standard & Poor's Rating Services.
"Stated Maturity", when used with respect to any Security, means the
date specified in such Security as the fixed date on which an amount equal to
the Principal Amount at Maturity of such Security is due and payable.
"Subsidiary" means any person of which at least a majority of the
outstanding Voting Stock shall at the time directly or indirectly be owned or
controlled by the Company or by one or more Subsidiaries or by the Company and
one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date
of this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"trading day" means a day during which trading in securities
generally occurs on the Nasdaq National Market or, if the Common Stock is not
listed on the Nasdaq National Market, on the principal other national or
regional securities exchange on which the Common Stock then is listed or, if the
Common Stock is not listed on a national or regional securities exchange, on the
principal other market or inter-dealer quotation system on which the Common
Stock is then traded.
"Trading Price" of the Securities on any date of determination means:
(1) the average of the secondary market bid quotations per Securities
obtained by the Company or the Calculation Agent for $10,000,000 principal
amount of the Securities at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities
dealers selected by the Company;
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(2) if at least three such bids cannot reasonably be obtained by the
Company or the Calculation Agent, but two such bids are obtained, then the
average of the two bids shall be used;
(3) if only one such bid can reasonably be obtained by the Company or
the Calculation Agent, this one bid shall be used; or
(4) if the Company or the Calculation Agent cannot reasonably obtain
at least one bid for $10,000,000 principal amount of the Securities from a
nationally recognized securities dealer or in the Company's reasonable judgment,
the bid quotations are not indicative of the secondary market value of the
Securities, then the Trading Price of the Securities will equal (i) the
then-applicable Conversion Rate of the Securities multiplied by (ii) the Closing
Price of the Company's Common Stock on such determination date, appropriately
adjusted.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Voting Stock" of a person means Capital Stock of such person of the
class or classes pursuant to which the holders thereof have the general voting
power under ordinary circumstances to elect at least a majority of the board of
directors, managers or trustees of such person (irrespective of whether or not
at the time Capital Stock of any other class or classes shall have or might have
voting power by reason of the happening of any contingency).
Section 1.2 Other Definitions
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Term Section: Defined in:
"Agent Members" .................................... 2.12(e)
"Associate" ........................................ 3.8(a)
"beneficial owner" ................................. 3.8(a)
"cash" ............................................. 3.7(c)
"Change in Control" ................................ 3.8(a)
"Change in Control Purchase Date" .................. 3.8(a)
"Change in Control Purchase Notice" ................ 3.8(a)
"Change in Control Purchase Price" ................. 3.8(a)
"Company Notice" ................................... 3.7(d)
"Company Notice Date" .............................. 3.7(c)
"Continuing Directors" ............................. 3.8(a)
"Conversion Agent" ................................. 2.3
"Conversion Rate" .................................. 10.1
"Current Market Price" ............................. 10.3
"Depositary" ....................................... 2.1(a)
"distributed assets" ............................... 10.3
"DTC" .............................................. 2.1(a)
"Event of Default" ................................. 6.1
"Excess Amount" .................................... 10.3
"Expiration Time" .................................. 10.3
"Fair Market Value" ................................ 10.3
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Term Section: Defined in:
"Legal Holiday" ...................................... 11.8
"Legend" ............................................. 2.6(f)
"Non-Electing Share" ................................. 10.4
"Notice of Default" .................................. 6.1
"Paying Agent" ....................................... 2.3
"Purchase Date" ...................................... 3.7(a)
"Purchase Notice" .................................... 3.7(a)
"Purchase Price" ..................................... 3.7(a)
"QIB" ................................................ 2.1(a)
"Record Date" ........................................ 10.3
"Reference Period" ................................... 10.3
"Registrar" .......................................... 2.3
"Rule 144A Information" .............................. 4.6
"Spin-Off" ........................................... 10.8
"Trigger Event" ...................................... 10.3
Section 1.3 Incorporation by Reference of Trust Indenture Act.
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Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.4 Rules of Construction. Unless the context otherwise
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requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles as in effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
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(5) words in the singular include the plural, and words in the
plural include the singular.
Section 1.5 Acts of Holders. (a) Any request, demand, authorization,
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direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Registered Securities shall be proved by the
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the Outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
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ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating. The Securities and the Trustee's
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certificate of authentication shall be substantially in the form of Exhibits A-1
and A-2, which are a part of this Indenture. The Securities may have notations,
legends or endorsements required by law, stock exchange rule or usage (provided
that any such notation, legend or endorsement required by usage is in a form
acceptable to the Company). The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. Each Security shall be dated
the date of its authentication.
(a) 144A Global Securities. Securities offered and sold within the
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United States to qualified institutional buyers as defined in Rule 144A ("QIBs")
in reliance on Rule 144A shall be issued, initially in the form of a 144A Global
Security, which shall be deposited with the Trustee at its Corporate Trust
Office, as custodian for the Depositary and registered in the name of The
Depository Trust Company ("DTC") or the nominee thereof (such depositary, or any
successor thereto, and any such nominee being hereinafter referred to as the
"Depositary"), duly executed by the Company and authenticated by the Trustee as
hereinafter provided. The aggregate principal amount of the 144A Global
Securities may from time to time be increased or decreased by adjustments made
on the records of the Trustee and the Depositary as hereinafter provided.
(b) Global Securities in General. Each Global Security shall
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represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate amount of outstanding
Securities from time to time endorsed thereon and that the aggregate amount of
outstanding Securities represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, redemptions and conversions.
Any adjustment of the aggregate principal amount of a Global Security
to reflect the amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to
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Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(c), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY 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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE
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DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF."
(d) Certificated Securities. Securities not issued as interests in
the Global Securities will be issued in certificated form substantially in the
form of Exhibit A-2 attached hereto.
Section 2.2 Execution and Authentication. The Securities shall be
----------------------------------------
executed on behalf of the Company by any Officer. The signature of the officer
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of the execution of the Securities the proper Officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of
authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver Securities for original
issue in an aggregate Principal Amount at Maturity of up to $375,452,000 upon
one or more Company Orders without any further action by the Company. The
aggregate Principal Amount at Maturity of Securities outstanding at any time may
not exceed the amount set forth in the foregoing sentence, except as provided in
Section 2.7.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 of Principal Amount at Maturity and any
integral multiple thereof.
Section 2.3 Registrar, Paying Agent and Conversion Agent. The Company
--------------------------------------------------------
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent, including
any named pursuant to Section 4.5. The term
11
Conversion Agent includes any additional conversion agent, including any named
pursuant to Section 4.5.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent, Calculation Agent or co-registrar (in
each case, if such person is a person other than the Trustee). The agreement
shall implement the provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of any such agent. If
the Company fails to maintain a Registrar, Paying Agent, Calculation Agent or
Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.7. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar. The Calculation Agent may not be an Affiliate
of the Company or any Subsidiary thereof.
The Company initially appoints the Trustee as Registrar, Conversion
Agent, Calculation Agent and Paying Agent in connection with the Securities. The
Trustee may resign from any or all of such appointments upon 30 days' written
notice to the Company.
Section 2.4 Paying Agent to Hold Money and Securities in Trust. Except
--------------------------------------------------------------
as otherwise provided herein, on or prior to each due date of payments in
respect of any Security, the Company shall deposit with the Paying Agent a sum
of money (in immediately available funds if deposited on the due date) or Common
Stock sufficient to make such payments when so becoming due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Securityholders or the
Trustee all money and Common Stock held by the Paying Agent for the making of
payments in respect of the Securities and shall notify the Trustee of any
default by the Company in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and Common Stock
so held in trust. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money and Common Stock held by it
as Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money and Common Stock held by it to the
Trustee and to account for any funds and Common Stock disbursed by it. Upon
doing so, the Paying Agent shall have no further liability for the money or
Common Stock.
Section 2.5 Securityholder Lists. The Trustee shall preserve in as
--------------------------------
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually on May 1 and November 1 a listing of Securityholders dated within
15 days of the date on which the list is furnished and at such other times as
the Trustee may request in writing a list in such form and as of such date as
the Trustee may reasonably require of the names and addresses of
Securityholders.
Section 2.6 Transfer and Exchange. (a) Subject to Section 2.12 hereof,
---------------------------------
(a) upon surrender for registration of transfer of any Security, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Securityholder or such Securityholder's attorney duly authorized in writing,
at the office or agency of the Company designated as Registrar or co-registrar
pursuant to Section 2.3, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees,
12
one or more new Securities of any authorized denomination or denominations, of a
like aggregate Principal Amount at Maturity. The Company shall not charge a
service charge for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to pay all taxes, assessments or other
governmental charges that may be imposed in connection with the transfer or
exchange of the Securities from the Securityholder requesting such transfer or
exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount at Maturity, upon surrender of the Securities to be exchanged,
together with a written instrument of transfer satisfactory to the Registrar
duly executed by the Securityholder or such Securityholder's attorney duly
authorized in writing, at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Change in
Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.6(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
or in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.3 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer
or exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or
replacement of Securities subject to restrictions on transfer and bearing the
legends set forth on the form of Security attached hereto as Exhibits A-1 and A-
2 setting forth such restrictions (collectively, the "Legend"), or if a request
is made to remove the Legend on a Security, the Securities so issued shall bear
the Legend, or the Legend shall not be removed, as the case may be, unless there
is delivered to the Company and the Registrar such satisfactory evidence, which
shall include an Opinion of Counsel, as may be reasonably required by the
Company and the Registrar, that
13
neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A or Rule 144 under the Securities Act or that such Securities are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon (i)
provision of such satisfactory evidence, or (ii) notification by the Company to
the Trustee and registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale, the Trustee,
at the written direction of the Company, shall authenticate and deliver a
Security that does not bear the Legend. If the Legend is removed from the face
of a Security and the Security is subsequently held by an Affiliate of the
Company, the Legend shall be reinstated.
Section 2.7 Replacement Securities. If (a) any mutilated Security is
----------------------------------
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and Principal Amount at Maturity, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.8 Outstanding Securities; Determinations of Holders' Action.
---------------------------------------------------------------------
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those cancelled by it, those paid pursuant to Section 2.7
delivered to it for cancellation and those described in this Section 2.8 as not
outstanding. A Security does not cease to be outstanding because the Company or
an Affiliate thereof holds the Security; provided, however, that in determining
whether the Holders of the requisite Principal Amount at Maturity of Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be
14
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Subject to the foregoing,
only Securities outstanding at the time of such determination shall be
considered in any such determination (including, without limitation,
determinations pursuant to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following the Purchase Date or a Change
in Control Purchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then
immediately after such Redemption Date, Purchase Date, Change in Control
Purchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and Issue Discount and interest, if any, on such
Securities shall cease to accrete; provided, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made.
If a Security is converted in accordance with Article 10, then from
and after the time of conversion on the Conversion Date, such Security shall
cease to be outstanding and Issue Discount and interest, if any, shall cease to
accrete or accrue on such Security.
Section 2.9 Temporary Securities. Pending the preparation of
---------------------------------
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.3,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount at
Maturity of definitive Securities of authorized denominations. Until so
exchanged the temporary Securities shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities.
Section 2.10 Cancellation. All Securities surrendered for payment,
-------------------------
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange (other than Securities exchanged pursuant
to Section 10.2) shall, if surrendered to any person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Securities so delivered shall be promptly cancelled
by the Trustee. The
15
Company may not issue new Securities to replace Securities it has paid or
delivered to the Trustee for cancellation or that any Holder has converted
pursuant to Article 10. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with the Trustee's
customary procedure.
Section 2.11 Persons Deemed Owners. Prior to due presentment of a
----------------------------------
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of the Security or the payment of any Redemption Price, Purchase Price
or Change in Control Purchase Price in respect thereof, and interest thereon,
for the purpose of conversion and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
Section 2.12 Global Securities. (a) Notwithstanding any other
------------------------------
provisions of this Indenture or the Securities, (A) transfers of a Global
Security, in whole or in part, shall be made only in accordance with Section 2.6
and Section 2.12(a)(i), (B) transfers of a beneficial interest in a Global
Security for a Certificated Security shall comply with Section 2.6 and Section
2.12(a)(ii) below, and (C) transfers of a Certificated Security shall comply
with Section 2.6 and Section 2.12(a)(iii) and (iv) below.
(i) Transfer of Global Security. A Global Security may not be
---------------------------
transferred, in whole or in part, to any Person other than the Depositary or a
nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that this clause (i) shall not prohibit any transfer
of a Security that is issued in exchange for a Global Security but is not itself
a Global Security. No transfer of a Security to any Person shall be effective
under this Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this Section 2.12(a)(i) shall
prohibit or render ineffective any transfer of a beneficial interest in a Global
Security effected in accordance with the other provisions of this Section
2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a
------------------------------------------------------
Global Security for a Certificated Security. A beneficial interest in a Global
-------------------------------------------
Security may not be exchanged for a Certificated Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a transfer of a beneficial interest in a Global Security in accordance with
Applicable Procedures for a Certificated Security in the form satisfactory to
the Trustee, together with:
(A) so long as the Securities are Restricted Securities,
certification in the form set forth in Exhibit B-1;
(B) written instructions to the Trustee from the Company
to make, or direct the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect a decrease in the
aggregate Principal Amount of the Securities represented by the Global
Security, such instructions to contain information regarding the Depositary
account to be credited with such decrease; and
16
(C) if the Company or Registrar so requests, an opinion
of counsel or other evidence reasonably satisfactory to them as to the
compliance with the restrictions set forth in the Legend, then the
Trustee shall cause, or direct the Registrar to cause, in accordance
with the standing instructions and procedures existing between the
Depositary and the Registrar, the aggregate Principal Amount at
Maturity of Securities represented by the Global Security to be
decreased by the aggregate Principal Amount at Maturity of the
Certificated Security to be issued, shall issue such Certificated
Security and shall debit or cause to be debited to the account of the
Person specified in such instructions a beneficial interest in the
Global Security equal to the Principal Amount at Maturity of the
Certificated Security so issued.
(iii) Transfer and Exchange of Certificated Securities. When
------------------------------------------------
Certificated Securities are presented by a Holder to the Registrar with a
request:
(y) to register the transfer of such Certificated
Securities; or
(z) to exchange such Certificated Securities for an equal
Principal Amount at Maturity of Certificated Securities of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Certificated Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory
to the Company and the Registrar, duly executed by the
Holder thereof or his attorney duly authorized in
writing; and
(2) so long as such Securities are Restricted Securities,
such Securities are being transferred or exchanged
pursuant to an effective registration statement under
the Securities Act or pursuant to clause (A), (B) or (C)
below, and are accompanied by the following additional
information and documents, as applicable:
(A) if such Certificated Securities are being
delivered to the Registrar by a Holder for registration
in the name of such Holder, without transfer, a
certification from such Holder to that effect; or
(B) if such Certificated Securities are being
transferred to the Company, a certification to that
effect; or
(C) if such Certificated Securities are being
transferred pursuant to an exemption from registration
(i) a certification to that effect (in the form set
forth in Exhibit B-1, if applicable) and (ii) if the
Company or Registrar so requests, an opinion of counsel
or other evidence reasonably satisfactory to them as to
the compliance with the restrictions set forth in the
Legend.
17
(iv) Restrictions on Transfer of a Certificated Security
---------------------------------------------------
for a Beneficial Interest in a Global Security. A Certificated Security
----------------------------------------------
may not be exchanged for a beneficial interest in a Global Security
except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(I) so long as the Securities are Restricted
Securities, certification, in the form set forth in
Exhibit B-1, that such Certificated Security is
being transferred to a QIB in accordance with Rule
144A; and
(II) written instructions directing the Trustee to
make, or to direct the Registrar to make, an
adjustment on its books and records with respect to
such Global Security to reflect an increase in the
aggregate Principal Amount at Maturity of the
Securities represented by the Global Security, such
instructions to contain information regarding the
Depositary account to be credited with such
increase, then the Trustee shall cancel such
Certificated Security and cause, or direct the
Registrar to cause, in accordance with the standing
instructions and procedures existing between the
Depositary and the Registrar, the aggregate
Principal Amount at Maturity of Securities
represented by the Global Security to be increased
by the aggregate Principal Amount at Maturity of the
Certificated Security to be exchanged, and shall
credit or cause to be credited to the account of the
Person specified in such instructions a beneficial
interest in the Global Security equal to the
Principal Amount at Maturity of the Certificated
Security so cancelled. If no Global Securities are
then outstanding, the Company shall issue and the
Trustee shall authenticate, upon written order of
the Company in the form of an Officers' Certificate,
a new Global Security in the appropriate Principal
Amount at Maturity.
(b) Subject to the succeeding paragraph, every Security shall
be subject to the restrictions on transfer provided in the Legend including the
delivery of an opinion of counsel, if so provided. Whenever any Restricted
Security is presented or surrendered for registration of transfer or for
exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set
forth in Exhibit B-1, dated the date of such surrender and signed by the Holder
of such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of transfer or
exchange any Security not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the
transferability of any Security shall cease and terminate when such Security has
been sold pursuant to an effective registration statement under the Securities
Act or transferred in compliance with Rule 144 under
18
the Securities Act (or any successor provision thereto) or, if earlier, upon the
expiration of the holding period applicable to sales thereof under Rule 144(k)
under the Securities Act (or any successor provision). Any Security as to which
such restrictions on transfer shall have expired in accordance with their terms
or shall have terminated may, upon a surrender of such Security for exchange to
the Registrar in accordance with the provisions of this Section 2.12
(accompanied, in the event that such restrictions on transfer have terminated by
reason of a transfer in compliance with Rule 144 or any successor provision, by
an opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company, addressed to
the Company and in form acceptable to the Company, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and
aggregate Principal Amount at Maturity, which shall not bear the restrictive
Legend. The Company shall inform the Trustee of the effective date of any
registration statement registering the Securities under the Securities Act. The
Trustee shall not be liable for any action taken or omitted to be taken by it in
good faith in accordance with the aforementioned opinion of counsel or
registration statement.
(d) As used in the preceding two paragraphs of this Section 2.12, the
term "transfer" encompasses any sale, pledge, transfer, hypothecation or other
disposition of any Security.
(e) The provisions of clauses (1), (2), (3), (4) and (5) below shall
apply only to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or the
Securities, except as provided in Section 2.12(a)(ii), a
Global Security shall not be exchanged in whole or in part for
a Security registered in the name of any Person other than the
Depositary or one or more nominees thereof, provided that a
Global Security may be exchanged for Securities registered in
the names of any person designated by the depositary in the
event that (i) the Depositary has notified the Company that it
is unwilling or unable to continue as Depositary for such
Global Security or such Depositary has ceased to be a
"clearing agency" registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90
days or (ii) an Event of Default has occurred and is
continuing with respect to the Securities. Any Global Security
exchanged pursuant to clause (i) above shall be so exchanged
in whole and not in part, and any Global Security exchanged
pursuant to clause (ii) above may be exchanged in whole or
from time to time in part as directed by the Depositary. Any
Security issued in exchange for a Global Security or any
portion thereof shall be a Global Security; provided that any
such Security so issued that is registered in the name of a
Person other than the Depositary or a nominee thereof shall
not be a Global Security.
(2) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully
registered form, without interest coupons, shall have an
aggregate Principal Amount at
19
Maturity equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names
and be in such authorized denominations as the Depositary
shall designate and shall bear the applicable legends provided
for herein. Any Global Security to be exchanged in whole shall
be surrendered by the Depositary to the Trustee, as Registrar.
With regard to any Global Security to be exchanged in part,
either such Global Security shall be so surrendered for
exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global
Security, the Principal Amount at Maturity thereof shall be
reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the
records of the Trustee. Upon any such surrender or adjustment,
the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the registered
Holder may grant proxies and otherwise authorize any Person,
including Agent Members (as defined below) and persons that
may hold interests through Agent Members, to take any action
which a holder is entitled to take under this Indenture or the
Securities.
(4) In the event of the occurrence of any of the events specified
in clause (1) above, the Company will promptly make available
to the Trustee a reasonable supply of Certificated Securities
in definitive, fully registered form, without interest
coupons.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on
whose behalf Agent Members may act shall have any rights under
this Indenture with respect to any Global Security registered
in the name of the Depositary or any nominee thereof, or under
any such Global Security, and the Depositary or such nominee,
as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute
owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person
on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of
the rights of a holder of any Security.
Section 2.13 CUSIP Numbers. The Company may issue the Securities with one
--------------------------
or more "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice
20
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
Section 2.14 Ranking. The indebtedness of the Company arising under or
--------------------
in connection with this Indenture and every outstanding Security issued under
this Indenture from time to time constitutes and will constitute a senior
unsecured general obligation of the Company, ranking equally with other existing
and future senior unsecured Indebtedness of the Company and ranking senior in
right of payment to any future Indebtedness of the Company that is expressly
made subordinate to the Securities by the terms of such Indebtedness.
ARTICLE III
REDEMPTION AND PURCHASES
Section 3.1 Right to Redeem; Notices to Trustee. The Company, at its
-----------------------------------------------
option, may redeem the Securities in accordance with the provisions of paragraph
5 of the Securities. If the Company elects to redeem Securities pursuant to
paragraph 5 of the Securities, it shall notify the Trustee in writing of the
Redemption Date, the Principal Amount at Maturity of Securities to be redeemed
and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.1 by a Company Order, at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee).
Section 3.2 Selection of Securities to Be Redeemed. If less than all
--------------------------------------------------
the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall select the Securities to be redeemed on a
pro rata basis (so long as such method is not prohibited by the rules of any
stock exchange on which the Securities are then listed). The Trustee shall make
the selection at least 15 days but not more than 60 days before the Redemption
Date from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the Principal Amount at Maturity
of Securities that have denominations larger than $1,000.
Securities and portions of them the Trustee selects shall be in
Principal Amounts at Maturity of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall notify
the Company promptly of the Securities or portions of Securities to be redeemed.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed may be treated by
the Trustee as outstanding for the purpose of such selection.
21
Section 3.3 Notice of Redemption. At least 20 days but not more than
--------------------------------
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first-class mail, postage prepaid, to each Holder of Securities to be
redeemed.
The notice shall identify the Securities to be redeemed (including the
CUSIP number(s)) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Securities called for redemption may be converted at any
time before the close of business on the date that is two
Business Days prior to the Redemption Date;
(6) that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 8 of the Securities;
(7) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(8) if fewer than all the outstanding Securities are to be redeemed,
the certificate numbers, if any, and Principal Amounts at
Maturity of the particular Securities to be redeemed;
(9) that, unless the Company defaults in making payment of such
Redemption Price, Issue Discount on Securities called for
redemption will cease to accrete on and after the Redemption
Date; and
(10) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company makes such request at least three Business Days prior to the date by
which such notice of redemption must be given to Holders in accordance with this
Section 3.3.
Section 3.4 Effect of Notice of Redemption. Once notice of redemption
------------------------------------------
is given, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price stated in the notice except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Xxxxx stated in the notice.
Section 3.5 Deposit of Redemption Price. Prior to 10:00 a.m. (New York
---------------------------------------
City Time), on the Redemption Date, the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
Redemption Price of all Securities to be redeemed
22
on that date other than Securities or portions of Securities called for
redemption which on or prior thereto have been delivered by the Company to the
Trustee for cancellation or have been converted. The Paying Agent shall as
promptly as practicable return to the Company any money not required for that
purpose because of conversion of Securities pursuant to Article 10. If such
money is then held by the Company in trust and is not required for such purpose
it shall be discharged from such trust.
Section 3.6 Securities Redeemed in Part. Upon surrender of a Security
---------------------------------------
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Principal Amount at Maturity to the unredeemed portion of
the Security surrendered.
Section 3.7 Purchase of Securities at Option of the Holder. (a)
----------------------------------------------------------
General. Securities shall be purchased by the Company pursuant to paragraph 6 of
the Securities at the option of the Holder as of April 24, 2004, April 24, 2007,
April 24, 2012 and April 24, 2017 (each, a "Purchase Date"), at the purchase
price set forth below (each, a "Purchase Price", as applicable):
Purchase Price per $1,000
Purchase Date Principal Amount at Maturity
----------------------- ------------------------------
April 24, 2004 $668.49
April 24, 2007 $714.90
April 24, 2012 $799.52
April 24, 2017 $894.16
The foregoing Purchase Prices are equal to the Issue Price plus accreted Issue
Discount to the applicable Purchase Date. If, prior to a Purchase Date, the
Securities have been converted to semiannual coupon Securities following the
occurrence of a Tax Event pursuant to paragraph 1 of the Securities, the
Purchase Price will be equal to the restated principal amount plus accrued and
unpaid interest from the date of conversion to semiannual coupon Securities to
the Purchase Date. Purchases of Securities hereunder shall be made, at the
option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written
notice of purchase (a "Purchase Notice") at any time
from the opening of business on the date that is 20
Business Days prior to a Purchase Date until the close
of business on the third Business Day prior to such
Purchase Date stating:
(A) the certificate number of the Security which
the Holder will deliver to be purchased;
(B) the portion of the Principal Amount at
Maturity of the Security which the Holder will deliver
to be purchased, which portion must be in principal
amounts of maturity of $1,000 or an integral multiple
thereof;
23
(C) that such Security shall be purchased as of the
Purchase Date pursuant to the terms and conditions
specified in paragraph 6 of the Securities and in this
Indenture; and
(D) delivery of such Security to the Paying Agent prior
to, on or after the Purchase Date (together with all
necessary endorsements) at the offices of the Paying Agent,
such delivery being a condition to receipt by the Holder of
the Purchase Price therefor; provided, however, that such
Purchase Price shall be so paid pursuant to this Section
3.7 only if the Security so delivered to the Paying Agent
shall conform in all respects to the description thereof in
the related Purchase Notice, as determined by the Company.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.7, a portion of a Security, if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions
of this Section 3.7 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Purchase Date and
the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Purchase Notice contemplated by this Section
3.7(a) shall have the right to withdraw such Purchase Notice at any time prior
to the close of business on the Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.9.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Purchase Notice or written notice of withdrawal thereof.
(b) Certificate to Trustee. At least three Business Days before each
----------------------
Company Notice Date, the Company shall deliver an Officers' Certificate to the
Trustee specifying:
(i) the information required by Section 3.7(d); and
(ii) whether the Company desires the Trustee to give the Company
Notice required by Section 3.7(d).
(c) Purchase Price. The Purchase Price of Securities in respect of
--------------
which a Purchase Notice has been given shall be paid by the Company in U.S.
legal tender ("cash") equal to the aggregate Purchase Price of such Securities.
The Company Notice, as provided in Section 3.7(d), shall be sent to Holders (and
to beneficial owners as required by applicable law) not less than 20 Business
Days prior to such Purchase Date (the "Company Notice Date").
(d) Company Notice. In connection with any purchase of Securities
--------------
pursuant to paragraph 6 of the Securities, the Company shall give notice to
Holders setting forth information specified in this Section 3.7(d) (the "Company
Notice").
24
Each Company Notice shall include a form of Purchase Notice to be
completed by a Securityholder and shall state:
(i) the Purchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and the
Conversion Agent;
(iii) that Securities as to which a Purchase Notice has been
given may be converted if they are otherwise convertible only in
accordance with Article 10 hereof and paragraph 8 of the Securities if the
applicable Purchase Notice has been withdrawn in accordance with the terms
of this Indenture;
(iv) that Securities must be surrendered to the Paying Agent
to collect payment;
(v) that the Purchase Price for any security as to which a
Purchase Notice has been given and not withdrawn will be paid promptly
following the later of the Purchase Date and the time of surrender of such
Security as described in (iv);
(vi) the procedures the Holder must follow to exercise rights
under Section 3.7 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities;
(viii) the procedures for withdrawing a Purchase Notice;
(ix) that, unless the Company defaults in making payment on
Securities for which a Purchase Notice has been submitted, Issue Discount
on such Securities will cease to accrue on the Purchase Date; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company Notice
in the Company's name and at the Company's expense; provided, however, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
(e) Procedure upon Purchase. The Company shall deposit cash, at the
-----------------------
time and in the manner as provided in Section 3.10, sufficient to pay the
aggregate Purchase Price of all Securities to be purchased pursuant to this
Section 3.7.
Section 3.8 Purchase of Securities at Option of the Holder upon
---------------------------------------------------------------
Change in Control. (a) If there shall have occurred a Change in Control,
-----------------
Securities shall be purchased by the Company, at the option of the Holder
thereof, at a purchase price specified in paragraph 6 of the Securities (the
"Change in Control Purchase Price"), as of the date that is no later than 30
days after the delivery by the Company of the notice required by Section 3.8(b)
(the "Change in Control Purchase Date"), subject to satisfaction by or on behalf
of the Holder of the requirements set forth in Section 3.8(c).
25
A "Change in Control" shall be deemed to have occurred at such time
as either of the following events shall occur:
(1) the acquisition by any "person", including any syndicate or group
deemed to be a "person" under Section 13(d)(3) of the Exchange Act, as
amended, of beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of purchase,
merger or other acquisition transactions of shares of the Company's
Capital Stock entitling such person to exercise 50% or more of the total
voting power of all shares of the Company's Capital Stock entitled to vote
generally in elections of directors, other than any acquisition by the
Company, any of its Subsidiaries or any of its employee benefit plans
(except that such person shall be deemed to have beneficial ownership of
all securities that such person has the right to acquire, whether such
right is currently exercisable or is exercisable only upon the occurrence
of a subsequent condition);
(2) the first day on which a majority of the members of the Board of
Directors of the Company does not consist of Continuing Directors; or
(3) any consolidation or merger of the Company with or into any other
person (which for purposes of this definition has the meaning set forth in
Section 13(d)(3) of the Exchange Act), any merger of another person into
the Company, or any conveyance, transfer, sale, lease or other disposition
of all or substantially all of the properties and assets of the Company to
another person, other than in each case (x) any transaction pursuant to
which holders of 50% or more of the total voting power of all shares of
Capital Stock of the Company entitled to vote generally in the election of
directors immediately prior to such transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total voting power of
all shares of Capital Stock of the person that is the continuing or
surviving person or the parent corporation thereof entitled to vote
generally in the election of directors immediately after such transaction
or (y) any such merger solely for the purpose of changing the jurisdiction
of incorporation of the Company and resulting in a reclassification,
conversion or exchange of outstanding Common Stock solely into shares of
the common stock of the surviving entity;
provided, however, that a Change in Control shall not be deemed to have occurred
if (x) the Closing Price per share of Common Stock for any five trading days
within the period of 10 consecutive trading days ending immediately after the
later of the Change in Control or the public announcement of the Change in
Control, in the case of a Change in Control under clause (1) or (2) above, or
the period of 10 consecutive trading days ending immediately before the Change
in Control, in the case of a Change in Control under clause (3) above, shall
equal or exceed 110% of the Accreted Conversion Price of the Securities in
effect on each such trading day or (y) all of the consideration in the
transaction or transactions constituting a Change in Control (other than cash
payments for fractional shares and cash payments made in respect of dissenters'
appraisal rights) payable with respect to the Common Stock consists of shares of
Common Stock traded or to be traded immediately following such Change in Control
on a national securities exchange or the Nasdaq National Market and, as a result
of the transaction or transactions, the Securities become convertible solely
into such Common Stock (and any rights attached thereto).
26
"Continuing Directors" shall mean, as of any date of determination,
any member of the Board of Directors who (i) was a member of the Board of
Directors on April 18, 2002 or (ii) was nominated for election or elected to the
Board of Directors with the approval of two-thirds of the Continuing Directors
who were members of the Board of Directors at the time of a new director's
nomination or election.
(b) No later than 30 days after the occurrence of a Change in
Control, the Company shall mail a written notice of the Change in Control by
first- class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of Change in
Control Purchase Notice to be completed by the Securityholder and shall state:
(1) briefly, the events causing a Change in Control and the date
of such Change in Control;
(2) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.8 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent and the Conversion
Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that Securities as to which a Change in Control Purchase
Notice has been given may be converted if they are otherwise
convertible pursuant to Article 10 hereof only if the Change in
Control Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(8) that Securities must be surrendered to the Paying Agent to
collect payment;
(9) that the Change in Control Purchase Price for any Security
as to which a Change in Control Purchase Notice has been duly given
and not withdrawn will be paid promptly following the later of the
Change in Control Purchase Date and the time of surrender of such
Security as described in (8);
(10) briefly, the procedures the Holder must follow to exercise
rights under this Section 3.8;
(11) briefly, the conversion rights, if any, of the Securities;
(12) the procedures for withdrawing a Change in Control Purchase
Notice;
(13) that, unless the Company defaults in making payment of such
Change in Control Purchase Price, Issue Discount on Securities
surrendered for purchase
27
by the Company will cease to accrete on and after the Change in Control
Purchase Date; and
(14) the CUSIP number of the Securities.
(c) A Holder may exercise its rights specified in Section 3.8(a)
upon delivery of a written notice of purchase (a "Change in Control Purchase
Notice") to the Paying Agent at any time prior to the close of business on the
third business day prior to the Change in Control Purchase Date, stating:
(1) the certificate number of the Security which the Holder
will deliver to be purchased;
(2) the portion of the Principal Amount at Maturity of the
Security which the Holder will deliver to be purchased, which portion
must be $1,000 or an integral multiple thereof; and
(3) that such Security shall be purchased pursuant to the
terms and conditions specified in paragraph 6 of the Securities.
The delivery of such Security to the Paying Agent prior to, on
or after the Change in Control Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Change in Control Purchase Price therefor;
provided, however, that such Change in Control Purchase Price shall be so paid
pursuant to this Section 3.8 only if the Security so delivered to the Paying
Agent shall conform in all respects to the description thereof set forth in the
related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to
this Section 3.8, a portion of a Security if the Principal Amount at Maturity of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.8 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Change in Control Purchase Date and the time of delivery of the Security to the
Paying Agent in accordance with this Section 3.8.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change in Control Purchase Notice
contemplated by this Section 3.8(c) shall have the right to withdraw such Change
in Control Purchase Notice at any time prior to the close of business on the
Change in Control Purchase Date by delivery of a written notice of withdrawal to
the Paying Agent in accordance with Section 3.9.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written withdrawal
thereof.
Section 3.9 Effect of Purchase Notice or Change in Control
----------------------------------------------------------
Purchase Notice. Upon receipt by the Paying Agent of the Purchase Notice or
---------------
Change in Control Purchase Notice specified in Section 3.7(a) or Section 3.8(c),
as applicable, the Holder of the Security in respect of which such Purchase
Notice or Change in Control Purchase Notice, as the case may be, was
28
given shall (unless such Purchase Notice or Change in Control Purchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be entitled
to receive solely the Purchase Price or Change in Control Purchase Price, as the
case may be, with respect to such Security. Such Purchase Price or Change in
Control Purchase Price shall be paid to such Holder, subject to receipts of
funds and/or securities by the Paying Agent, promptly following the later of (x)
the Purchase Date or the Change in Control Purchase Date, as the case may be,
with respect to such Security (provided the conditions in Section 3.7(a) or
Section 3.8(c), as applicable, have been satisfied) and (y) the time of delivery
of such Security to the Paying Agent by the Holder thereof in the manner
required by Section 3.7(a) or Section 3.8(c), as applicable. Securities in
respect of which a Purchase Notice or Change in Control Purchase Notice, as the
case may be, has been given by the Holder thereof may not be converted pursuant
to Article 10 hereof on or after the date of the delivery of such Purchase
Notice or Change in Control Purchase Notice, as the case may be, unless such
Purchase Notice or Change in Control Purchase Notice, as the case may be, has
first been validly withdrawn as specified in the following two paragraphs.
A Purchase Notice or Change in Control Purchase Notice, as the
case may be, may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Purchase
Notice or Change in Control Purchase Notice, as the case may be, at any time
prior to the close of business on the Purchase Date or the Change in Control
Purchase Date, as the case may be, specifying:
(1) the certificate number, if any, of the Security in respect
of which such notice of withdrawal is being submitted,
(2) the Principal Amount at Maturity of the Security with
respect to which such notice of withdrawal is being
submitted, and
(3) the Principal Amount at Maturity, if any, of such Security
which remains subject to the original Purchase Notice or
Change in Control Purchase Notice, as the case may be, and
which has been or will be delivered for purchase by the
Company.
There shall be no purchase of any Securities pursuant to
Section 3.7 or 3.8 if there has occurred (prior to, on or after, as the case may
be, the giving, by the Holders of such Securities, of the required Purchase
Notice or Change in Control Purchase Notice, as the case may be) and is
continuing an Event of Default (other than a default in the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be, with
respect to such Securities). The Paying Agent will promptly return to the
respective Holders thereof any Securities (x) with respect to which a Purchase
Notice or Change in Control Purchase Notice, as the case may be, has been
withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Purchase Price or Change in Control Purchase Price, as the case may be, with
respect to such Securities) in which case, upon such return, the Purchase Notice
or Change in Control Purchase Notice with respect thereto shall be deemed to
have been withdrawn.
Section 3.10 Deposit of Purchase Price or Change in Control
-----------------------------------------------------------
Purchase Price. Prior to 10:00 a.m. (local time in the City of New York) on the
--------------
Business Day following the Purchase Date or the Change in Control Purchase Date,
as the case may be, the Company shall deposit with the Trustee or with the
Paying Agent (or, if the Company or a Subsidiary or an
29
Affiliate of either of them is acting as the Paying Agent, shall segregate and
hold in trust as provided in Section 2.4) an amount of cash (in immediately
available funds if deposited on such Business Day) sufficient to pay the
aggregate Purchase Price or Change in Control Purchase Price, as the case may
be, of all the Securities or portions thereof which are to be purchased as of
the Purchase Date or Change in Control Purchase Date, as the case may be.
Section 3.11 Securities Purchased in Part. Any Certificated
-----------------------------------------
Security which is to be purchased only in part shall be surrendered at the
office of the Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Xxxxxx's
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder in aggregate Principal Amount at Maturity equal to, and
in exchange for, the portion of the Principal Amount at Maturity of the Security
so surrendered which is not purchased.
Section 3.12 Covenant to Comply With Securities Laws Upon
---------------------------------------------------------
Purchase of Securities. When complying with the provisions of Section 3.7 or 3.8
----------------------
hereof (provided that such offer or purchase constitutes an "issuer tender
offer" for purposes of Rule 13e-4 (which term, as used herein, includes any
successor provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall (i) comply with Rule 13e- 4 and Rule 14e-1 under
the Exchange Act, (ii) file the related Schedule TO (or any successor schedule,
form or report) under the Exchange Act, and (iii) otherwise comply with all
Federal and state securities laws so as to permit the rights and obligations
under Sections 3.7 and 3.8 to be exercised in the time and in the manner
specified in Sections 3.7 and 3.8.
Section 3.13 Repayment to the Company. The Trustee and the
-------------------------------------
Paying Agent shall return to the Company any cash that remains unclaimed as
provided in paragraph 12 of the Securities, together with interest thereon
(subject to the provisions of Section 7.1(f)), held by them for the payment of
the Purchase Price or Change in Control Purchase Price, as the case may be;
provided, however, that to the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 3.10 exceeds the aggregate Purchase
Price or Change in Control Purchase Price, as the case may be, of the Securities
or portions thereof which the Company is obligated to purchase as of the
Purchase Date or Change in Control Purchase Date, as the case may be, then,
unless otherwise agreed in writing with the Company, promptly after the Business
Day following the Purchase Date or Change in Control Purchase Date, as the case
may be, the Trustee shall return any such excess to the Company together with
interest, if any, thereon (subject to the provisions of Section 7.1(f)).
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities. The Company shall promptly
---------------------------------
make all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Any amounts to be
given to the Trustee or Paying Agent, shall be deposited with the Trustee or
Paying Agent by 10:00 a.m. New York City time by the Company. Principal Amount
at Maturity, Issue Price plus accreted Issue Discount, Redemption Price,
Purchase Price, Change in Control Purchase Price and interest, if any, shall be
considered paid
30
on the applicable date due if on such date (or, in the case of a Purchase Price
or Change in Control Purchase Price, on the Business Day following the
applicable Purchase Date or Change in Control Purchase Date, as the case may be)
the Trustee or the Paying Agent holds, in accordance with this Indenture, money
or securities, if permitted hereunder, sufficient to pay all such amounts then
due.
The Company shall, to the extent permitted by law, pay interest
on overdue amounts at the rate per annum set forth in paragraph 1 of the
Securities, compounded semiannually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in addition to the continued accretion of Issue Discount.
Section 4.2 SEC and Other Reports. The Company shall file with
---------------------------------
the Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. In the event the Company is at any time
no longer subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, it shall continue to provide the Trustee with reports containing
substantially the same information as would have been required to be filed with
the SEC had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided at the times the
Company would have been required to provide reports had it continued to have
been subject to such reporting requirements. The Company also shall comply with
the other provisions of TIA Section 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely conclusively on Officers'
Certificates).
Section 4.3 Compliance Certificate. The Company shall deliver to
----------------------------------
the Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2002) an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 4.4 Further Instruments and Acts. Upon request of the
----------------------------------------
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
Section 4.5 Maintenance of Office or Agency. The Company will
-------------------------------------------
maintain in the Borough of Manhattan, the City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer, exchange, purchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The office of the Trustee at Wall Street
Plaza,
31
00 Xxxx Xxxxxx, 00/xx/ Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, shall initially be such
office or agency for all of the aforesaid purposes. The Company shall give
prompt written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of
the office of the Trustee). If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 11.2.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, the City of New York, for such purposes.
Section 4.6 Delivery of Certain Information. At any time when
-------------------------------------------
the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of Common Stock issued upon conversion thereof, the
Company will promptly furnish or cause to be furnished Rule 144A Information (as
defined below) to such Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of Common Stock, or to a prospective purchaser of any
such security designated by any such holder, as the case may be, to the extent
required to permit compliance by any such holder with Rule 144A under the
Securities Act in connection with the resale of any such security. "Rule 144A
Information" shall be such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act. Whether a person is a beneficial owner
shall be determined by the Company to the Company's reasonable satisfaction.
Section 4.7 Tax Treatment of Securities. The Company agrees, and
---------------------------------------
by acceptance of a beneficial ownership interest in the Securities each Holder
of Securities will be deemed to have agreed, for United States federal income
tax purposes, (i) to treat the Securities as indebtedness that is subject to
United States Treasury regulation section 1.1275-4 (the "Contingent Payment Debt
Regulations") and, for purposes of the Contingent Payment Debt Regulations, to
treat the fair market value of any stock beneficially received by a Holder upon
any conversion of the Securities as a contingent payment and (ii) to be bound by
the Company's determination of the comparable yield and projected payment
schedule, within the meaning of the Contingent Payment Debt Regulations, with
respect to the Securities. A Holder of Securities may obtain the issue price,
issue date, amount of original issue discount, yield to maturity, comparable
yield and projected payment schedule by submitting a written request to the
Company at the following address: Greater Bay Bancorp, 0000 Xxxx Xxxxxxxx Xxxx,
Xxxx Xxxx, XX 00000, Attention: Xxxxx X. Xxxxxxxx.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets. The
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Company shall not consolidate with or merge with or into any other person or
convey, transfer or lease its properties and assets substantially as an entirety
to any person, unless:
32
(a) either (1) the Company shall be the continuing corporation
or (2) the person (if other than the Company) formed by such consolidation or
into which the Company is merged or the person which acquires by conveyance,
transfer or lease the properties and assets of the Company substantially as an
entirety (i) shall be organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia and (ii) shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form satisfactory to the Trustee, all of the obligations of the
Company under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article 5 and that all conditions precedent herein provided for
relating to such transaction have been satisfied. The Trustee shall be entitled
to rely on such Officers' Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Article 5.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if such
assets were owned by the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
The successor person formed by such consolidation or into
which the Company is merged or the successor person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor had been named as the Company herein; and
thereafter, except in the case of a lease and obligations the Company may have
under a supplemental indenture pursuant to Section 10.4, the Company shall be
discharged from all obligations and covenants under this Indenture and the
Securities. Subject to Section 9.6, the Company, the Trustee and the successor
person shall enter into a supplemental indenture to evidence the succession and
substitution of such successor person and such discharge and release of the
Company.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default. An "Event of Default" occurs if:
-----------------------------
(1) the Company defaults in the payment of the Issue Price plus
accreted Issue Discount, Redemption Price, Purchase Price or Change in
Control Purchase Price on any Security when the same becomes due and
payable at its Stated Maturity, upon redemption, upon declaration, when
due for purchase by the Company or otherwise;
(2) default in the payment of any contingent interest,
additional amounts or, if the Securities have been converted to
semiannual coupon notes as provided in paragraph
33
1 of the Securities, accrued and unpaid interest, in each case, when due and
payable, and continuance of such default for a period of 30 days;
(3) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clause
(1) or (2) above) and such failure continues for 60 days after receipt
by the Company of a Notice of Default;
(4) the Company defaults under any indebtedness for money
borrowed by the Company or any of its Subsidiaries that is an insured
bank Subsidiary or any Subsidiary with assets that exceed 10% of the
Company's consolidated assets, the aggregate outstanding principal
amount of which is in an amount in excess of $25.0 million, for a
period of 30 days after the receipt by the Company of a Notice of
Default, which default (i) is caused the Company's failure to pay when
due principal or interest on such indebtedness by the end of the
applicable grace period, if any, unless such indebtedness is discharged
or (ii) results in the acceleration of such indebtedness because of a
default with respect to such indebtedness without such indebtedness
having been discharged or such non-payment or acceleration having been
cured, waived, rescinded or annulled;
(5) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of
the Company or for any substantial part of its property or ordering the
winding up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(6) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of
or taking possession by a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or for any
substantial part of its property or make any general assignment for the
benefit of creditors.
A Default under clause (3) or (4) above is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25%
in aggregate Principal Amount at Maturity of the Securities at the time
outstanding notify the Company and the Trustee, of the Default and the Company
does not cure such Default (and such Default is not waived) within the time
specified in clause (3) or (4) above after actual receipt of such notice. Any
such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after it
becomes aware of the occurrence thereof, written notice of any event which with
the giving of notice or the lapse of time, or both, would become an Event of
Default under clauses (3) or (4) above, its status and what action the Company
is taking or proposes to take with respect thereto. The Trustee shall not be
deemed to have notice of any such Event of Default until it has received the
aforementioned notice from the Company.
Section 6.2 Acceleration. If an Event of Default (other than an
-------------------------
Event of Default specified in Section 6.1(5) or (6)) occurs and is continuing,
the Trustee by Notice to the
34
Company, or the Holders of at least 25% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding by notice to the Company and
the Trustee, may declare the Issue Price plus accreted Issue Discount through
the date of declaration plus accrued any unpaid interest, if any (including
contingent interest and additional amounts) on all the Securities to be
immediately due and payable. Upon such a declaration, such Issue Price plus
accreted Issue Discount and accrued and unpaid interest, if any, (including
contingent interest and additional amounts) shall be due and payable
immediately. If an Event of Default specified in Section 6.1(5) or (6) occurs
and is continuing, the Issue Price plus accreted Issue Discount and accrued and
unpaid interest, if any, (including contingent interest and additional amounts)
on all the Securities shall become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Securityholders.
The Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding, by notice to the Trustee (and without notice
to any other Securityholder) may rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of the
Issue Price plus accreted Issue Discount that have become due solely as a result
of acceleration and if all amounts due to the Trustee under Section 7.7 have
been paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
If the Securities have, at the Company's option, been converted
to semiannual coupon Securities as provided in paragraph 1 of the Securities,
the amount due upon any acceleration will be the restated principal amount
thereof together with accrued and unpaid interest thereon.
Section 6.3 Other Remedies. If an Event of Default occurs and is
--------------------------
continuing, the Trustee may pursue any available remedy to collect the payment
of the Issue Price plus accreted Issue Discount on the Securities or to enforce
the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does
not possess any of the Securities or does not produce any of the Securities in
the proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 6.4 Waiver of Past Defaults. The Holders of a majority in
-----------------------------------
aggregate Principal Amount at Maturity of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder), may waive an existing Default and its consequences except (1)
an Event of Default described in Section 6.1(1), (2) a Default in respect of a
provision that under Section 9.2 cannot be amended without the consent of each
Securityholder affected or (3) a Default which constitutes a failure to convert
any Security in accordance with the terms of Article 10. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right. This Section 6.4 shall be in lieu
of Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section 6.5 Control by Majority. The Holders of a majority in
-------------------------------
aggregate Principal Amount at Maturity of the Securities at the time outstanding
may direct the time,
35
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines in good faith is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability unless the Trustee is offered indemnity satisfactory to it. This
Section 6.5 shall be in lieu of Section 316(a)1(A) of the TIA and such Section
316(a)1(A) is hereby expressly excluded from this Indenture, as permitted by the
TIA.
Section 6.6 Limitation on Suits. A Securityholder may not pursue
-------------------------------
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that
an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or
indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of such notice, request and offer of security or
indemnity; and
(5) +the Holders of a majority in aggregate Principal Amount at
Maturity of the Securities at the time outstanding do not give the
Trustee a direction inconsistent with the request during such 60-day
period.
A Securityholder may not use this Indenture to prejudice the
rights of any other Securityholder or to obtain a preference or priority over
any other Securityholder.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding
------------------------------------------------
any other provision of this Indenture, the right of any Holder to receive
payment of the Principal Amount at Maturity, Issue Price plus accreted Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, in respect of the Securities held by such Holder, on or after
the respective due dates expressed in the Securities or any Redemption Date, and
to convert the Securities in accordance with Article 10, or to bring suit for
the enforcement of any such payment on or after such respective dates or the
right to convert, shall not be impaired or affected adversely without the
consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default
--------------------------------------
described in Section 6.1(1) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount owing with respect to the Securities and the amounts
provided for in Section 7.7.
Section 6.9 Trustee May File Proofs of Claim. In case of the
--------------------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the Principal Amount at Maturity, Issue Price
plus accreted Issue
36
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, in respect of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of any such
amount) shall be entitled and empowered (but shall have no duty), by
intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
Principal Amount at Maturity, Issue Price plus accreted Issue Discount,
Redemption Price, Purchase Price, Change in Control Purchase Price, or interest,
if any, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.7) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money
-----------------------
pursuant to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for the Principal Amount at Maturity, Issue Price plus accreted Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price or
interest, if any, as the case may be, ratably, without preference or priority of
any kind, according to such amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Trustee shall mail to each Securityholder and the
Company a notice that states the record date, the payment date and the amount to
be paid.
Section 6.11 Undertaking for Costs. In any suit for the
----------------------------------
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the Trustee)
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses,
37
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in aggregate Principal Amount at
Maturity of the Securities at the time outstanding. This Section 6.11 shall be
in lieu of Section 315(e) of the TIA and such Section 315(e) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
Section 6.12 Waiver of Stay, Extension or Usury Laws. The Company
----------------------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the Principal Amount at
Maturity, Issue Price plus accreted Issue Discount, Redemption Price, Purchase
Price or Change in Control Purchase Price in respect of Securities, or any
interest on such amounts, as contemplated herein, or which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee. (a) If an Event of Default has
-----------------------------
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others;
and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, but in
case of any such certificates or opinions which by any
provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall examine the
certificates and opinions to determine whether or not on
their face they conform to the requirements of this
Indenture, but need not confirm or investigate the
accuracy of mathematical calculations or other facts
stated therein. This Section 7.1(b) shall be in lieu of
Section 3.15(a) of the TIA and such Section 315(a) is
hereby expressly excluded from this Indenture, as
permitted by the TIA.
38
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.1;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer
unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in
accordance with direction received by it pursuant to
Section 6.5.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any
right or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
Section 7.2 Rights of Trustee. Subject to its duties and
------------------------------
responsibilities under Section 7.1 and the TIA,
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
39
(d) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith which it believes to be
authorized or within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel.
(f) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby.
(g) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(h) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice or knowledge
of any Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event which is in
fact such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder;
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(l) the Trustee may consult with accountants, financial advisers
or other advisors reasonably selected by it to assist it with administering its
duties as Conversion Agent or Calculation Agent hereunder, and shall be fully
protected in respect of any action taken or
40
suffered or omitted by it hereunder in good faith and in accordance with the
advice provided by such accountants, financial advisors or other advisors.
Section 7.3 Individual Rights of Trustee. The Trustee in its
----------------------------------------
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent, Calculation Agent or co-registrar may do the same with like rights.
However, the Trustee must comply with Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer. The Trustee makes no
--------------------------------
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use or application of
the proceeds from the Securities, it shall not be responsible for any statement
in the registration statement for the Securities under the Securities Act or in
any offering document for the Securities, the Indenture or the Securities (other
than its certificate of authentication), or the determination as to which
beneficial owners are entitled to receive any notices hereunder.
Section 7.5 Notice of Defaults. If a Default occurs and if it is
------------------------------
known to the Trustee, the Trustee shall give to each Securityholder notice of
the Default within 90 days after it occurs or, if later, within 15 days after it
is known to the Trustee, unless such Default shall have been cured or waived
before the giving of such notice. Notwithstanding the preceding sentence, except
in the case of a Default described in Section 6.1(1), the Trustee may withhold,
and shall be protected in withholding, the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice
is in the interests of Securityholders. The second sentence of this Section 7.5
shall be in lieu of the proviso to Section 315(b) of the TIA and such proviso is
hereby expressly excluded from this Indenture, as permitted by the TIA. The
Trustee shall not be deemed to have knowledge of a Default unless a Responsible
Officer of the Trustee has received written notice of such Default.
Section 7.6 Reports by Trustee to Holders. Within 60 days after
-----------------------------------------
each May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Securityholder a brief report dated as of such May 15
that complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each securities exchange, if
any, on which the Securities are listed. The Company agrees to notify the
Trustee promptly whenever the Securities become listed on any securities
exchange and of any delisting thereof.
Section 7.7 Compensation and Indemnity. The Company agrees:
--------------------------------------
(a) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited (to
the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and
41
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee or any predecessor, Trustee and
their agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including attorney's fees and expenses, and taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee)) incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim (whether asserted
by the Company or any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.7,
the Company and the Holders agree that the Trustee shall have a lien prior to
the Securities on all money or property held or collected by the Trustee.
The Company's obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(4), the expenses including the reasonable charges and
expenses of its counsel, are intended to constitute expenses of administration
under any Bankruptcy Law.
Section 7.8 Replacement of Trustee. The Trustee may resign by so
----------------------------------
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.8. The Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding may remove the Trustee by so notifying the
Trustee and the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.7.
If a successor Xxxxxxx does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in
42
aggregate Principal Amount at Maturity of the Securities at the time outstanding
may petition any court of competent jurisdiction at the expense of the Company
for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
Section 7.9 Successor Trustee by Xxxxxx. If the Trustee
---------------------------------------
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
Section 7.10 Eligibility; Disqualification. The Trustee shall at
------------------------------------------
all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The
Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. Nothing herein contained shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate
paragraph of TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
--------------------------------------------------------------
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities. When (i) the
------------------------------------------------
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.7) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits with
the Trustee cash sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.7), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.7, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand of
the Company accompanied by an Officers' Certificate and Opinion of Counsel and
at the cost and expense of the Company.
Section 8.2 Repayment to the Company. The Trustee and the Paying
------------------------------------
Agent shall return to the Company upon written request any money or securities
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years, subject to applicable unclaimed property law.
After return to the Company, Holders entitled to the money or securities must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person and the Trustee and the Paying
Agent shall have no further liability to the Securityholders with respect to
such money or securities for that period commencing after the return thereof.
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ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders. The Company and the
--------------------------------------
Trustee may amend this Indenture or the Securities without the consent of any
Securityholder, so long as such changes, other than those in clause (2), do not
materially and adversely affect the interests of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency
provided that such modification or amendment does not, in the good
faith opinion of the Company's Board of Directors and the Trustee,
adversely affect the interests of the holders of the Securities in any
material respect;
(2) to comply with Article 5;
(3) to secure the Company's obligations under the Securities and
this Indenture;
(4) to add to the Company's covenants for the benefit of the
Securityholders or to surrender any right or power conferred upon the
Company; or
(5) to make any change necessary for the registration of the
Securities under the Securities Act or to comply with the TIA, or any
amendment thereto, or to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA
provided that such modification or amendment does not, in the good
faith opinion of the Company's Board of Directors and the Trustee,
adversely affect the interests of the holders of the Securities in any
material respect.
Section 9.2 With Consent of Holders. With the written consent of
-----------------------------------
the Holders of at least a majority in aggregate Principal Amount at Maturity of
the Securities at the time outstanding, the Company and the Trustee may amend
this Indenture or the Securities. However, without the consent of each
Securityholder affected, an amendment to this Indenture or the Securities may
not:
(1) make any change in the manner or rate of accretion in
connection with Issue Discount, reduce the rate of interest (including
contingent interest) referred to in paragraph 1 of the Securities, or
extend the time for payment of Issue Discount on any Security;
(2) reduce the Principal Amount at Maturity or the Issue Price of
or extend the Stated Maturity of any Security;
(3) reduce the Redemption Price, Purchase Price or Change in
Control Purchase Price of any Security;
(4) make any Security or interest thereon payable in money or
securities other than that stated in the Security;
44
(5) make any change in Section 6.4, Section 6.7 or this Section
9.2, except to increase any percentage set forth therein;
(6) make any change that adversely affects the right to convert
any Security; or
(7) make any change that adversely affects the right to require
the Company to purchase the Securities in accordance with the terms
thereof and this Indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.2 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
Section 9.3 Compliance with Trust Indenture Act. Every
-----------------------------------------------
supplemental indenture executed pursuant to this Article shall comply with the
TIA.
Section 9.4 Revocation and Effect of Consents, Waivers and
----------------------------------------------------------
Actions. Until an amendment, waiver or other action by Holders becomes
-------
effective, a consent thereto by a Holder of a Security hereunder is a continuing
consent by the Holder and every subsequent Holder of that Security or portion of
the Security that evidences the same obligation as the consenting Holder's
Security, even if notation of the consent, waiver or action is not made on the
Security. However, any such Holder or subsequent Holder may revoke the consent,
waiver or action as to such Holder's Security or portion of the Security if the
Trustee receives the notice of revocation before the date the amendment, waiver
or action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
Section 9.5 Notation on or Exchange of Securities. Securities
-------------------------------------------------
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Company, bear a
notation in form approved by the Company as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
Section 9.6 Trustee to Sign Supplemental Indentures. The Trustee
---------------------------------------------------
shall sign any supplemental indenture authorized pursuant to this Article IX if
the amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing any supplemental indenture the
Trustee shall receive, and (subject to the provisions of Section 7.1) shall be
fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
Section 9.7 Effect of Supplemental Indentures. Upon the execution
---------------------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
45
ARTICLE X
CONVERSIONS
Section 10.1 Conversion Privilege. (a) Subject to and upon
---------------------------------
compliance with the provisions of this Article 10, at the option of the Holder,
any Securities or any portion of the Principal Amount at Maturity thereof which
is an integral multiple of $1,000 may be converted at the Principal Amount at
Maturity thereof, or of such portion thereof, into duly authorized, fully paid
and nonassessable shares of Common Stock, at the Conversion Rate in effect at
the time of conversion:
(1) during any Conversion Period, if the Closing Price of the
Common Stock for at least 20 trading days in the 30 consecutive trading
day period ending on the first day of the Conversion Period was more
than 120% of the Accreted Conversion Price on that thirtieth trading
day;
(2) during the five Business Day period following any 10
consecutive trading-day period in which the average of the Trading
Prices for the Securities for that 10 trading-day period was less than
105% of the Average Conversion Value of the Securities during that
period;
(3) during any period after the 30th day following the original
issuance of the Securities in which the credit rating assigned to the
Securities by either Xxxxx'x or Standard & Poor's is lower than Ba3 or
BB-, respectively, in which the credit rating assigned to the
Securities is suspended or withdrawn by either such rating agency or in
which neither such rating agency continues to rate the Securities or
provide ratings services coverage to the Company;
(4) if the Company has called the Securities for redemption; or
(5) upon the occurrence of the corporate transactions specified
in clause (b) of this Section 10.1.
The Conversion Agent shall, on behalf of the Company, determine
on a daily basis whether the Securities shall be convertible as a result of the
occurrence of an event specified in clause (1) or clause (2) above and, if the
Securities shall be so convertible, the Company shall promptly deliver to the
Trustee written notice thereof. Whenever the Securities shall become convertible
pursuant to Section 10.1, the Company or, at the Company's written request, the
Trustee in the name and at the expense of the Company, shall notify the Trustee
and the Holders of the event triggering such convertibility in the manner
provided in Section 11.2, and the Company shall also publicly announce such
information and publish it on the Company's World Wide web site. Any notice so
given shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. Except as expressly set forth in this paragraph,
the Trustee (in any of its capacities hereunder) shall have no duty to determine
the convertibility of any of the Securities.
(b) In addition, in the event that:
(1) (A) the Company distributes to all holders of its shares of
Common Stock rights or warrants entitling them to subscribe for or
purchase shares of Common Stock, at
46
a price per share less than the Closing Price of the Common Stock on the
Business Day immediately preceding the announcement of such distribution, (B)
the Company distributes to all holders of its shares of Common Stock, cash or
other assets, debt securities or rights or warrants to purchase its securities,
where the Fair Market Value (as determined by the Board of Directors) of such
distribution per share of Common Stock exceeds 10% of the Closing Price of a
share of Common Stock on the Business Day immediately preceding the date of
declaration of such distribution, or (C) a Change in Control occurs but Holders
of Securities do not have the right to require the Company to purchase their
Securities as a result of such Change in Control because either (i) the Closing
Price of the Common Stock for specified periods (as described in the definition
of Change in Control) exceeds specified levels (as described in the definition
of Change in Control) or (ii) the consideration received in such Change in
Control consists of Capital Stock that is freely tradeable and the Securities
become convertible into that Capital Stock as specified in the definition of
Change in Control, then, in each case, the Securities may be surrendered for
conversion at any time on and after the date that the Company gives notice to
the Holders of such right, which shall be not less than 20 days prior to the
Ex-Dividend Time for such distribution, in the case of (A) or (B), or within 30
days after the occurrence of the Change in Control, in the case of (C), until
the earlier of the close of business on the Business Day immediately preceding
the Ex-Dividend Time or the date the Company announces that such distribution
will not take place, in the case of (A) or (B), or the earlier of 30 days after
the Company's delivery of the notice of the Change in Control or the date the
Company announces that the Change of Control will not take place, in the case of
(C), or
(2) the Company consolidates with or merges into another
corporation, or is a party to a binding share exchange pursuant to
which the shares of Common Stock would be converted into cash,
securities or other property as set forth in Section 10.4 hereof, then
the Securities may be surrendered for conversion at any time from and
after the date which is 15 days prior to the date announced by the
Company as the anticipated effective time of such transaction until 15
days after the actual date of such transaction.
The "Conversion Rate" means the number of shares of Common
Stock issuable upon conversion of a Security per $1,000 of Principal Amount at
Maturity thereof, which shall be as set forth initially in paragraph 8 of the
Securities, subject to adjustment as herein set forth. The Company shall provide
the Trustee, the Calculation Agent and the Conversion Agent with the initial
Conversion Rate and shall notify each of them of any change in the Conversion
Rate, in writing, on or before the date such new Conversion Rate becomes
effective.
Section 10.2 Conversion Procedure; Conversion Price; Fractional
---------------------------------------------------------------
Shares. (a) Each Security shall be convertible at the office of the Conversion
------
Agent into fully paid and nonassessable shares (calculated to the nearest
1/100th of a share) of Common Stock. The number of shares of Common Stock
issuable upon conversion of a Security per $1,000 principal amount thereof shall
be equal to the Conversion Rate. No payment or adjustment shall be made in
respect of dividends on the Common Stock or accreted Issue Discount on a
converted Security, except as described in Section 10.9 hereof. The Company
shall not issue any fraction of a share of Common Stock in connection with any
conversion of Securities, but instead shall, subject to Section 10.3(h) hereof,
make a cash payment (calculated to the nearest cent) equal to such fraction
multiplied by the Closing Price of the Common Stock on the last Trading Day
prior to the date of conversion. Notwithstanding the foregoing, a Security in
respect of which a
47
Holder has delivered a Purchase Notice or a Change in Control Purchase Notice
exercising such Holder's option to require the Company to repurchase such
Securities may be converted only if such notice of exercise is withdrawn in
accordance with Section 3.9 hereof.
(b) Before any Holder of a Securities shall be entitled to
convert the same into Common Stock, such Holder shall, in the case of Global
Securities, comply with the procedures of the Depositary in effect at that time,
and in the case of Certificated Securities, surrender such Securities, duly
endorsed to the Company or in blank, at the office of the Conversion Agent, and
shall give written notice to the Company at said office or place that such
Holder elects to convert the same and shall state in writing therein the
principal amount of Securities to be converted and the name or names (with
addresses) in which such Holder wishes the certificate or certificates for
Common Stock to be issued.
Before any such conversion, a Holder also shall pay all funds
required, if any, relating to interest on the Securities, as provided in Section
10.9, and all taxes or duties, if any, as provided in Section 10.8.
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 deliverable upon conversion shall be computed on the basis of the total
Principal Amount at Maturity of the Securities (or specified portions thereof to
the extent permitted thereby) so surrendered. Subject to the next succeeding
sentence, the Company will, as soon as practicable thereafter, issue and deliver
at said office or place to such Holder of a Securities, or to such Holder's
nominee or nominees, certificates for the number of full shares of Common Stock
to which such Holder shall be entitled as aforesaid, together with cash in lieu
of any fraction of a share to which such Holder would otherwise be entitled. The
Company shall not be required to deliver certificates for shares of Common Stock
while the stock transfer books for such stock or the security register are duly
closed for any purpose, but certificates for shares of Common Stock shall be
issued and delivered as soon as practicable after the opening of such books or
security register.
(c) A Security shall be deemed to have been converted as of the
close of business on the date of the surrender of such Securities for conversion
as provided above, and the person or persons entitled to receive the Common
Stock issuable upon such conversion shall be treated for all purposes as the
record Holder or Holders of such Common Stock as of the close of business on
such date.
(d) In case any Securities shall be surrendered for partial
conversion, the Company shall execute and the Trustee shall authenticate and
deliver to or upon the written order of the Holder of the Securities so
surrendered, without charge to such Holder (subject to the provisions of Section
10.8 hereof), new Securities in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Securities.
Section 10.3 Adjustments of Conversion Rate for Common Stock. The
------------------------------------------------------------
Conversion Rate shall be adjusted from time to time as follows:
(a) In case the Company shall, at any time or from time to time
after the Issue Date while any of the Securities are outstanding, pay a dividend
or make a distribution in shares of Common Stock to all holders of its
outstanding shares of Common Stock, then the Conversion Rate in effect at the
opening of business on the date following the record date fixed for the
48
determination of stockholders entitled to receive such dividend or other
distribution shall be increased by dividing such Conversion Rate by a fraction:
(1) the numerator of which shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date
fixed for such determination; and
(2) the denominator of which shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution.
Such increase shall become effective immediately after the
opening of business on the day following the Record Date fixed for such
determination. If any dividend or distribution of the type described in this
Section 10.3(a) is declared but not so paid or made, the Conversion Rate shall
again be adjusted to the Conversion Rate which would then be in effect if such
dividend or distribution had not been declared.
(b) In case the Company shall, at any time or from time to time
after the Issue Date while any of the Securities are outstanding, subdivide its
outstanding shares of Common Stock into a greater number of shares of Common
Stock, then the Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately increased, and conversely, in case the Company shall, at any
time or from time to time while any of the Securities are outstanding, combine
its outstanding shares of Common Stock into a smaller number of shares of Common
Stock, then the Conversion Rate in effect at the opening of business on the day
following the day upon which such combination becomes effective shall be
proportionately decreased.
Such reduction or increase, as the case may be, shall become
effective immediately after the opening of business on the day following the day
upon which such subdivision or combination becomes effective.
(c) In case the Company shall, at any time or from time to time
after the Issue Date while any of the Securities are outstanding, issue rights
or warrants (other than any rights or warrants referred to in Section 10.3(d))
to all holders of its shares of Common Stock entitling them to subscribe for or
purchase shares of Common Stock (or securities convertible into shares of Common
Stock) at a price per share (or having a conversion price per share) less than
the Closing Price on the Business Day immediately preceding the date of the
announcement of such issuance (treating the conversion price per share of the
securities convertible into Common Stock as equal to (x) the sum of (i) the
price for a unit of the security convertible into Common Stock and (ii) any
additional consideration initially payable upon the conversion of such security
into Common Stock divided by (y) the number of shares of Common Stock initially
underlying such convertible security), then the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by dividing the
Conversion Rate in effect at the opening of business on the date after such date
of announcement by a fraction:
(1) the numerator of which shall be the number of shares of
Common Stock outstanding on the close of business on the date of
announcement, plus the number of shares or securities which the
aggregate offering price of the total number of shares or securities so
offered for subscription or purchase (or the aggregate conversion price
of the convertible securities so offered) would purchase at such
Closing Price of the Common Stock; and
49
(2) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date of
announcement, plus the total number of additional shares of Common
Stock so offered for subscription or purchase (or into which the
convertible securities so offered are convertible).
Such adjustment shall become effective immediately after the
opening of business on the day following the date of announcement of such
issuance. To the extent that shares of Common Stock (or securities convertible
into shares of Common Stock) are not delivered pursuant to such rights or
warrants, upon the expiration or termination of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate which would then be
in effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of the delivery of only the number of shares of Common
Stock (or securities convertible into shares of Common Stock) actually
delivered. In the event that such rights or warrants are not so issued, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if the date fixed for the determination of stockholders
entitled to receive such rights or warrants had not been fixed. In determining
whether any rights or warrants entitle the holders to subscribe for or purchase
shares of Common Stock at less than such Closing Price, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken
into account any consideration received for such rights or warrants, the value
of such consideration if other than cash, to be determined by the Board of
Directors.
(d) (i) In case the Company shall, at any time or from time to
time after the Issue Date while any of the Securities are outstanding, by
dividend or otherwise, distribute to all holders of its shares of Common Stock
(including any such distribution made in connection with a consolidation or
merger in which the Company is the continuing corporation and the Common Stock
is not changed or exchanged), cash, shares of its capital stock (other than any
dividends or distributions to which Section 10.3(a) applies), evidences of its
Indebtedness or other assets, including securities, but excluding (i) any rights
or warrants referred to in Section 10.3(c), (ii) dividends or distributions of
stock, securities or other property or assets (including cash) in connection
with a reclassification, change, merger, consolidation, statutory share
exchange, combination, sale or conveyance to which Section 10.4 applies and
(iii) dividends and distributions paid exclusively in cash (such capital stock,
evidence of its indebtedness, cash, other assets or securities being distributed
hereinafter in this Section 10.3(d) called the "distributed assets"), then, in
each such case, subject to paragraphs (iv), (vi) and (vii) of this Section
10.3(d), the Conversion Rate shall be adjusted so that the same shall be equal
to the rate determined by dividing the Conversion Rate in effect immediately
prior to the close of business on the Record Date with respect to such
distribution by a fraction:
(1) the numerator of which shall be the Current Market Price of
the Common Stock, less the Fair Market Value on such date of the
portion of the distributed assets so distributed applicable to one
share of Common Stock (determined on the basis of the number of shares
of Common Stock outstanding on the record date)(determined as provided
in Section 10.3(g)) on such date; and
(2) the denominator of which shall be such Current Market Price.
Such adjustment shall become effective immediately prior to the opening of
business on the day following the Record Date for such distribution. In the
event that such dividend or distribution is
50
not so paid or made, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such dividend or distribution
had not been declared.
(ii) If the Board of Directors determines the Fair Market Value
of any distribution for purposes of this Section 10.3(d) by reference to the
actual or when issued trading market for any distributed assets comprising all
or part of such distribution, it must in doing so consider the prices in such
market over the same period (the "Reference Period") used in computing the
Current Market Price pursuant to Section 10.3(g) to the extent possible, unless
the Board of Directors determines in good faith that determining the Fair Market
Value during the Reference Period would not be in the best interest of the
Holders.
(iii) In the event any such distribution consists of shares of
capital stock of, or similar equity interests in, one or more of the Company's
Subsidiaries (a "Spin-Off"), the Fair Market Value of the securities to be
distributed shall equal the average of the closing sale prices of such
securities on the principal securities market on which such securities are
traded for the five consecutive Trading Days commencing on and including the
sixth day of trading of those securities after the effectiveness of the
Spin-Off, and the Current Market Price shall be measured for the same period. In
the event, however, that an underwritten initial public offering of the
securities in the Spin-Off occurs simultaneously with the Spin-Off, Fair Market
Value of the securities distributed in the Spin-Off shall mean the initial
public offering price of such securities and the Current Market Price shall mean
the Closing Price for the Common Stock on the same Trading Day.
(iv) Rights or warrants distributed by the Company to all holders
of its shares of Common Stock entitling them to subscribe for or purchase shares
of the Company's capital stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a specified
event or events ("Trigger Event"), (i) are deemed to be transferred with such
shares of Common Stock, (ii) are not exercisable and (iii) are also issued in
respect of future issuances of shares of Common Stock shall be deemed not to
have been distributed for purposes of this Section 10.3(d) (and no adjustment to
the Conversion Rate under this Section 10.3(d) will be required) until the
occurrence of the earliest Trigger Event. If such right or warrant is subject to
subsequent events, upon the occurrence of which such right or warrant shall
become exercisable to purchase different distributed assets, evidences of
indebtedness or other assets, or entitle the holder to purchase a different
number or amount of the foregoing or to purchase any of the foregoing at a
different purchase price, then the occurrence of each such event shall be deemed
to be the date of issuance and record date with respect to a new right or
warrant (and a termination or expiration of the existing right or warrant
without exercise by the holder thereof). In addition, in the event of any
distribution (or deemed distribution) of rights or warrants, or any Trigger
Event or other event (of the type described in the preceding sentence) with
respect thereto, that resulted in an adjustment to the Conversion Rate under
this Section 10.3(d):
(1) in the case of any such rights or warrants which shall all
have been redeemed or repurchased without exercise by any holders
thereof, the Conversion Rate shall be readjusted upon such final
redemption or repurchase to give effect to such distribution or Trigger
Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder of
shares of Common Stock with respect to such rights or warrants
(assuming such holder had retained such rights or warrants), made to
all holders of shares of Common Stock as of the date of such redemption
or repurchase; and
51
(2) in the case of such rights or warrants which shall have expired or
been terminated without exercise, the Conversion Rate shall be
readjusted as if such rights and warrants had never been issued.
(v) For purposes of this Section 10.3(d) and Sections 10.3(a),
10.3(b) and 10.3(c), any dividend or distribution to which this Section 10.3(d)
is applicable that also includes (i) shares of Common Stock, (ii) a subdivision
or combination of shares of Common Stock to which Section 10.3(b) applies or
(iii) rights or warrants to subscribe for or purchase shares of Common Stock to
which Section 10.3(c) applies (or any combination thereof), shall be deemed
instead to be:
(1) a dividend or distribution of the evidences of indebtedness,
assets, shares of capital stock, rights or warrants, other than such
shares of Common Stock, such subdivision or combination or such rights
or warrants to which Sections 10.3(a), 10.3(b) and 10.3(c) apply,
respectively (and any Conversion Rate increase required by this Section
10.3(d) with respect to such dividend or distribution shall then be
made), immediately followed by
(2) a dividend or distribution of such shares of Common Stock,
such subdivision or combination or such rights or warrants (and any
further Conversion Rate increase required by Sections 10.3(a), 10.3(b)
and 10.3(c) with respect to such dividend or distribution shall then be
made), except:
(A) the Record Date of such dividend or distribution shall be
substituted as (i) "the date fixed for the determination of
stockholders entitled to receive such dividend or other
distribution," "Record Date fixed for such determinations" and
"Record Date" within the meaning of Section 10.3(a), (ii) "the
day upon which such subdivision becomes effective" and "the day
upon which such combination becomes effective" within the meaning
of Section 10.3(b), and (iii) as "the date fixed for the
determination of stockholders entitled to receive such rights or
warrants," "the Record Date fixed for the determination of the
stockholders entitled to receive such rights or warrants" and
such "Record Date" within the meaning of Section 10.3(c); and
(B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the
meaning of Section 10.3(a) and any reduction or increase in the
number of shares of Common Stock resulting from such subdivision
or combination shall be disregarded in connection with such
dividend or distribution.
(vi) In the event of any distribution referred to in this Section
10.3(d) in which (1) the Fair Market Value (as determined by the Board of
Directors) of such distribution applicable to one share of Common Stock
(determined as provided above) equals or exceeds the average of the Closing
Prices of the Common Stock over the ten consecutive Trading Day period ending on
the Record Date for such distribution or (2) the average of the Closing Prices
of the Common Stock over the ten consecutive Trading Day period ending on the
Record Date for such distribution exceeds the Fair Market Value of such
distribution by less than $1.00, then, in each such case, in lieu of an
adjustment to the Conversion Rate, adequate provision shall be made so
52
that each Holder shall have the right to receive upon conversion of a
Securities, in addition to shares of Common Stock, the kind and amount of such
distribution such Holder would have received had such Holder converted such
Securities immediately prior to the Record Date for determining the shareholders
entitled to receive the distribution.
(vii) In the event of any distribution referred to in Section
10.3(c) or 10.3(d), where, in the case of a distribution described in Section
10.3(d), the Fair Market Value of such distribution per share of Common Stock
(as determined by the Board of Directors) exceeds 10% of the Closing Price of a
share of Common Stock on the Business Day immediately preceding the declaration
date for such distribution, then, if such distribution would also trigger a
conversion right under Section 10.1(b) or the Securities are otherwise
convertible pursuant to this Article 10, the Company will be required to give
notice to the Holders of Securities at least 20 days prior to the Ex-Dividend
Time for the distribution and, upon the giving of notice, the Securities may be
surrendered for conversion at any time on and after the date that the Company
gives notice to the Holders of such conversion right, until the close of
business on the Business Day prior to the Ex-Dividend Time or the Company
announces that such distribution will not take place. No adjustment to the
Conversion Rate or the ability of a Holder of a Security to convert will be made
if the Holder will otherwise participate in such distribution without
conversion.
(e) In case the Company shall, at any time or from time to time
while any of the Securities are outstanding, by dividend or otherwise,
distribute to all holders of its shares of Common Stock, cash (excluding any
cash that is distributed upon a reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance to which Section 10.4
applies or as part of a distribution referred to in Section 10.3(d)), in an
aggregate amount that, combined together with:
(1) the aggregate amount of any other such distributions to
all holders of shares of Common Stock made exclusively in cash
within the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to
this Section 10.3(e) has been made; and
(2) the aggregate amount of any cash, plus the Fair Market
Value (as determined by the Board of Directors) of consideration
payable in respect of any tender offer by the Company or any of
its Subsidiaries for all or any portion of the shares of Common
Stock concluded within the 12 months preceding the date of such
distribution, and in respect of which no adjustment pursuant to
Section 10.3(f) has been made;
exceeds 10% of the product of the Current Market Price of the Common Stock on
the Record Date with respect to such distribution, times the number of shares of
Common Stock outstanding on such date, then, and in each such case, immediately
after the close of business on such date, the Conversion Rate shall be adjusted
so that the same shall equal the number determined by dividing the Conversion
Rate in effect immediately prior to the close of business on such Record Date by
a fraction:
(1) the numerator of which shall be equal to the Current
Market Price on the Record Date, less an amount equal to the
quotient of (x) the excess of such
53
combined amount over such 10% and (y) the number of shares of Common
Stock outstanding on the Record Date; and
(2) the denominator of which shall be equal to the Current
Market Price on such date.
However, in the event that the then Fair Market Value (as so
determined) of the portion of cash and other securities, if any, so distributed
applicable to one share of Common Stock is equal to or greater than the Current
Market Price on the Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder shall have the right to receive upon
conversion of a Securities (or any portion thereof) the amount of cash in excess
of such 10% such Holder would have received had such Holder converted such
Securities (or portion thereof) immediately prior to such Record Date. In the
event that such dividend or distribution is not so paid or made, the Conversion
Rate shall again be adjusted to be the Conversion Rate which would then be in
effect if such dividend or distribution had not been declared.
(f) In case a tender offer made by the Company or any of its
Subsidiaries for all or any portion of the shares of Common Stock shall expire
and such tender offer (as amended upon the expiration thereof) shall require the
payment to stockholders (based on the acceptance (up to any maximum specified in
the terms of the tender offer) of shares tendered) of an aggregate consideration
having a Fair Market Value (as determined by the Board of Directors) that
combined together with:
(1) the aggregate amount of the cash, plus the Fair Market Value
(as determined by the Board of Directors), as of the expiration of
such tender offer, of consideration payable in respect of any other
tender offers, by the Company or any of its Subsidiaries for all or
any portion of the shares of Common Stock expiring within the 12
months preceding the expiration of such tender offer and in respect
of which no adjustment pursuant to this Section 10.3(f) has been
made; and
(2) the aggregate amount of any distributions to all holders of
shares of Common Stock made exclusively in cash within 12 months
preceding the expiration of such tender offer and in respect of which
no adjustment pursuant to Section 10.3(e) has been made;
exceeds 10% of the product of the Current Market Price of the Common Stock as of
the last time (the "Expiration Time") tenders could have been made pursuant to
such tender offer (as it may be amended), times the number of shares of Common
Stock outstanding (including any tendered shares) on the Expiration Time (such
excess, the "Excess Amount"), then, and in each such case, immediately prior to
the opening of business on the day after the date of the Expiration Time, the
Conversion Rate shall be adjusted so that the same shall equal the number
determined by dividing the Conversion Rate in effect immediately prior to the
close of business on the date of the Expiration Time by a fraction:
(1) the numerator of which shall be the (x) product of (i) the
number of shares of Common Stock outstanding (including any tendered
shares) at the Expiration Time and (ii) the Current Market Price of
the Common Stock at the Expiration Time, less (y) the Excess Amount;
and
54
(2) the denominator shall be the product of the number of shares
of Common Stock outstanding (including any tendered shares) at the
Expiration Time and the Current Market Price of the Common Stock at
the Expiration Time.
Such increase (if any) shall become effective immediately prior to
the opening of business on the day following the Expiration Time. In the event
that the Company is obligated to purchase shares pursuant to any such tender
offer, but the Company is permanently prevented by applicable law from effecting
any such purchases or all or a portion of such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if such (or such portion of the) tender offer had not been
made. If the application of this Section 10.3(f) to any tender offer would
result in a decrease in the Conversion Rate, no adjustment shall be made for
such tender offer under this Section 10.3(f).
Pursuant to rights issued under the Company's preferred share
purchase rights plan, if holders of the Securities exercising the right of
conversion attaching after the date the rights separate from the underlying
Common Stock are not entitled to receive the rights that would otherwise be
attributable to the shares of Common Stock received upon conversion, the
Conversion Rate will be adjusted as though the rights were being distributed to
holders of Common Stock on the date of such separation. If such an adjustment is
made and the rights are later redeemed, invalidated or terminated, then a
corresponding reversing adjustment will be made to the Conversion Rate on an
equitable basis.
(g) For purposes of this Article 10, the following terms shall have
the meanings indicated:
"Current Market Price" on any date means the average of the daily
Closing Prices per share of Common Stock for the ten consecutive Trading Days
immediately prior to such date; provided, however, that if:
-------- -------
(1) the "ex" date (as hereinafter defined) for any event (other than
the issuance or distribution requiring such computation) that requires an
adjustment to the Conversion Rate pursuant to Section 10.3(a), (b), (c),
(d), (e) or (f) occurs during such ten consecutive Trading Days, the
Closing Price for each Trading Day prior to the "ex" date for such other
event shall be adjusted by dividing such Closing Price by the same
fraction by which the Conversion Rate is so required to be adjusted as a
result of such other event;
(2) the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to
the Conversion Rate pursuant to Section 10.3(a), (b), (c), (d), (e) or (f)
occurs on or after the "ex" date for the issuance or distribution
requiring such computation and prior to the day in question, the Closing
Price for each Trading Day on and after the "ex" date for such other event
shall be adjusted by dividing such Closing Price by the reciprocal of the
fraction by which the Conversion Rate is so required to be adjusted as a
result of such other event; and
(3) the "ex" date for the issuance or distribution requiring such
computation is prior to the day in question, after taking into account any
adjustment required pursuant to clause (1) or (2) of this proviso, the
Closing Price for each Trading Day on or after such "ex" date shall be
adjusted by adding thereto the amount of any cash and the Fair Market
Value (as determined by the Board of Directors in a manner consistent with
any determination of such value for purposes of Section 10.3(d), (e) or
(f)) of the evidences of
55
Indebtedness, shares of capital stock or assets being distributed
applicable to one share of Common Stock as of the close of business on the
day before such "ex" date.
For purposes of any computation under Section 10.3(f), if the "ex" date for any
event (other than the tender offer requiring such computation) that requires an
adjustment to the Conversion Rate pursuant to Section 10.3(a), (b), (c), (d),
(e) or (f) occurs on or after the Expiration Time for the tender or exchange
offer requiring such computation and prior to the day in question, the Closing
Price for each Trading Day on and after the "ex" date for such other event shall
be adjusted by dividing such Closing Price by the reciprocal of the fraction by
which the Conversion Rate is so required to be adjusted as a result of such
other event. For purposes of this paragraph, the term "ex" date, when used:
(1) with respect to any issuance or distribution, means the first
date on which the shares of Common Stock trade regular way on the relevant
exchange or in the relevant market from which the Closing Price was
obtained without the right to receive such issuance or distribution;
(2) with respect to any subdivision or combination of shares of
Common Stock, means the first date on which the shares of Common Stock
trade regular way on such exchange or in such market after the time at
which such subdivision or combination becomes effective; and
(3) with respect to any tender or exchange offer, means the first
date on which the shares of Common Stock trade regular way on such
exchange or in such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments to the Conversion
Rate are called for pursuant to this Section 10.3, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 10.3 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
"Fair Market Value" shall mean the amount which a willing buyer would
pay a willing seller in an arm's length transaction (as determined by the Board
of Directors, whose determination shall be conclusive).
"Record Date" shall mean, with respect to any dividend, distribution
or other transaction or event in which the holders of shares of Common Stock
have the right to receive any cash, securities or other property or in which the
shares of Common Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other property, the date
fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
(h) The Company shall be entitled to make such additional increases
in the Conversion Rate, in addition to those required by Sections 10.3(a), (b),
(c), (d), (e) and (f), as shall be necessary in order that any dividend or
distribution of Common Stock, any subdivision, reclassification or combination
of shares of Common Stock or any issuance of rights or warrants referred to
above shall not be taxable to the holders of Common Stock for United States
federal income tax purposes.
56
(i) To the extent permitted by applicable law, the Company may, from
time to time, increase the Conversion Rate by any amount for any period of time,
if such period is at least 20 days and the reduction is irrevocable during the
period. Whenever the Conversion Rate is increased pursuant to the preceding
sentence, the Company shall mail to the Trustee and each Holder at the address
of such Holder as it appears in the register of the Securities maintained by the
Registrar, at least 15 days prior to the date the increased Conversion Rate
takes effect, a notice of the increase stating the increased Conversion Rate and
the period during which it will be in effect.
(j) In any case in which this Section 10.3 shall require that any
adjustment be made effective as of or retroactively immediately following a
Record Date, the Company may elect to defer (but only for five Trading Days
following the filing of the statement referred to in Section 10.5) issuing to
the Holder of any Securities converted after such Record Date the shares of
Common Stock issuable upon such conversion over and above the shares of Common
Stock issuable upon such conversion on the basis of the Conversion Rate prior to
adjustment; provided, however, that the Company shall deliver to such Holder a
-------- -------
due bill or other appropriate instrument evidencing such Holder's right to
receive such additional shares upon the occurrence of the event requiring such
adjustment.
(k) All calculations under this Section 10.3 shall be made to the
nearest cent or one-hundredth of a share, with one-half cent and 0.005 of a
share, respectively, being rounded upward. Notwithstanding any other provision
of this Section 10.3, the Company shall not be required to make any adjustment
of the Conversion Rate unless such adjustment would require an increase or
decrease of at least 1% of such rate. Any lesser adjustment shall be carried
forward and shall be made at the time of and together with the next subsequent
adjustment which, together with any adjustment or adjustments so carried
forward, shall amount to an increase or decrease of at least 1% in such rate.
Any adjustments under this Section 10.3 shall be made successively whenever an
event requiring such an adjustment occurs.
(l) In the event that at any time, as a result of an adjustment made
pursuant to this Section 10.3, the Holder of any Securities thereafter
surrendered for conversion shall become entitled to receive any shares of stock
of the Company other than shares of Common Stock into which the Securities
originally were convertible, the Conversion Rate of such other shares so
receivable upon conversion of any such Securities shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to Common Stock contained in subparagraphs (a)
through (k) of this Section 10.3, and the provisions of Sections 10.1, 10.2 and
10.4 through 10.9 with respect to the Common Stock shall apply on like or
similar terms to any such other shares and the determination of the Board of
Directors as to any such adjustment shall be conclusive.
(m) No adjustment shall be made pursuant to this Section 10.3 (i) if
the effect thereof would be to reduce the Accreted Conversion Price at any time
below the par value (if any) of the Common Stock or (ii) if the Holders of the
Securities may participate in the transaction that would otherwise give rise to
an adjustment pursuant to this Section 10.3.
Section 10.4 Consolidation or Merger of the Company. If any of the
---------------------------------------------------
following events occurs, namely:
57
(1) any reclassification or change of the outstanding Common Stock
(other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or
combination);
(2) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities or
other property or assets (including cash) with respect to or in exchange
for such Common Stock; or
(3) any sale or conveyance of the properties and assets of the
Company as, or substantially as, an entirety to any other corporation as a
result of which holders of Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock;
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the Trust Indenture Act as in force at the date of execution of such
supplemental indenture, if such supplemental indenture is then required to so
comply) providing that such Securities shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) which such Holder would have been entitled to receive upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance had such Securities been converted into Common
Stock immediately prior to such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance assuming such holder
of Common Stock did not exercise its rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance (provided, that if
--------
the kind or amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share exchange, sale or conveyance is not the
same for each share of Common Stock in respect of which such rights of election
shall not have been exercised ("Non-Electing Share"), then for the purposes of
this Section 10.4, the kind and amount of securities, cash or other property
receivable upon such merger, consolidation, statutory share exchange, sale or
conveyance for each Non-Electing Share shall be deemed to be the kind and amount
so receivable per share by a plurality of the Non-Electing Shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
X. If, in the case of any such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance, the stock or other
securities and assets receivable thereupon by a holder of Common Stock includes
shares of stock or other securities and assets of a corporation other than the
successor or purchasing corporation, as the case may be, in such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing,
including to the extent practicable the provisions providing for the repurchase
rights set forth in Article 10 hereof.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the register of the Securities maintained by the Registrar, within 20
days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.
58
The above provisions of this Section 10.4 shall similarly
apply to successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 10.4 applies to any event or occurrence,
Section 10.3 shall not apply.
Section 10.5 Notice of Adjustment. Whenever an adjustment in
----------------------------------
the Conversion Rate with respect to the Securities is required:
(1) the Company shall forthwith place on file with the
Trustee and any Conversion Agent for such securities a certificate of
the Treasurer of the Company, stating the adjusted Conversion Rate
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment; and
(2) a notice stating that the Conversion Rate has been
adjusted and setting forth the adjusted Conversion Rate shall forthwith
be given by the Company or, at the Company's written request, by the
Trustee in the name and at the expense of the Company, to each Holder
in the manner provided in Section 11.2. Any notice so given shall be
conclusively presumed to have been duly given, whether or not the
Holder receives such notice.
Section 10.6 Notice in Certain Events. In case:
--------------------------------------
(1) of a consolidation or merger to which the Company is a
party and for which approval of any stockholders of the Company is
required, or of the sale or conveyance to another Person or entity or
group of Persons or entities acting in concert as a partnership,
limited partnership, syndicate or other group (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of
all or substantially all of the property and assets of the Company; or
(2) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(3) of any action triggering an adjustment of the Conversion
Rate referred to in clauses (x) or (y) below;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent, and shall cause to be given, to the Holders of the Securities
in the manner provided in Section 11.2, at least 15 days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Rate pursuant to this Article 10, or,
if a record is not to be taken, the date as of which the holders of record of
Common Stock entitled to such distribution, rights or warrants are to be
determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding up triggering an
adjustment to the Conversion Rate pursuant to this Article 10 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 Common Stock for securities
or other property deliverable
59
upon such reclassification, consolidation, merger sale, conveyance, dissolution,
liquidation or winding up.
Failure to give such notice or any defect therein shall not
affect the legality or validity of the proceedings described in clause (1), (2)
or (3) of this Section 10.6.
Section 10.7 Company to Reserve Stock; Registration; Listing.
------------------------------------------------------------
(a) The Company shall, in accordance with the laws of the
State of California, at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued shares of Common Stock,
for the purpose of effecting the conversion of the Securities, such number of
its duly authorized shares of Common Stock as shall from time to time be
sufficient to effect the conversion of all Securities then Outstanding into such
Common Stock at any time (assuming that, at the time of the computation of such
number of shares or securities, all such Securities would be held by a single
Holder); provided, however, that nothing contained herein shall preclude the
Company from satisfying its obligations in respect of the conversion of the
Securities by delivery of purchased shares of Common Stock which are then held
in the treasury of the Company. The Company covenants that all shares of Common
Stock which may be issued upon conversion of Securities will upon issue be fully
paid and nonassessable and free from all liens and charges and, except as
provided in Section 10.8, taxes with respect to the issue thereof.
(b) If any shares of Common Stock which would be issuable upon
conversion of Securities hereunder require registration with or approval of any
governmental authority before such shares or securities may be issued upon such
conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company further covenants that so long as the Common
Stock shall be listed on the Nasdaq National Market, the Company will, if
permitted by the rules of the National Association of Securities Dealers, Inc.,
list and keep listed all Common Stock issuable upon conversion of the
Securities, and the Company will endeavor to list the shares of Common Stock
required to be delivered upon conversion of the Securities prior to such
delivery upon any other primary national securities exchange upon which the
outstanding Common Stock is listed at the time of such delivery.
Section 10.8 Taxes on Conversion. The issue of stock
--------------------------------
certificates on conversion of Securities shall be made without charge to the
converting Holder for any documentary, stamp or similar issue or transfer taxes
in respect of the issue thereof, and the Company shall pay any and all
documentary, stamp or similar issue or transfer taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
Securities pursuant hereto. The Company shall not, however, be required to pay
any such tax which may be payable in respect of any transfer involved in the
issue or delivery of shares of Common Stock or the portion, if any, of the
Securities which are not so converted in a name other than that in which the
Securities so converted were registered, 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 such tax or has established to the satisfaction of the Company
that such tax has been paid.
Section 10.9 Conversion After Record Date. Except as provided
-----------------------------------------
below, if any Securities are surrendered for conversion on any day other than an
interest payment date, the Holder of such Securities shall not be entitled to
receive any interest (including contingent
60
interest) that has accrued on such Securities since the prior interest payment
date. By delivery to the Holder of the number of shares of Common Stock or other
consideration issuable upon conversion in accordance with this Article 10, any
accrued and unpaid interest (including contingent interest) on such Securities
will be deemed to have been paid in full.
If any Securities are surrendered for conversion subsequent to
the Record Date preceding an interest payment date but on or prior to such
interest payment date, the Holder of such Securities at the close of business on
such Record Date shall receive any interest (including contingent interest)
payable on such Securities on such interest payment date notwithstanding the
conversion thereof. Securities surrendered for conversion during the period from
the close of business on any Record Date preceding any interest payment date to
the opening of business on such interest payment date shall (except in the case
of Securities which have been called for redemption on a Redemption Date within
such period) be accompanied by payment by Holders, for the account of the
Company, in New York Clearing House funds or other funds of an amount equal to
the interest (including contingent interest) payable on such interest payment
date on the Securities being surrendered for conversion. Except as provided in
this Section 10.9, no adjustments in respect of payments of interest (including
contingent interest) on Securities surrendered for conversion or any dividends
or distributions or interest on the Common Stock issued upon conversion shall be
made upon the conversion of any Securities.
Section 10.10 Company Determination Final. Any determination
-----------------------------------------
that the Company or the Board of Directors must make pursuant to this Article 10
shall be conclusive if made in good faith and in accordance with the provisions
of this Article X, absent manifest error, and set forth in a resolution of the
Board of Directors.
Section 10.11 Responsibility of Trustee for Conversion
------------------------------------------------------
Provisions. The Trustee has no duty to determine when an adjustment under this
----------
Article 10 should be made, how it should be made or what it should be, or
whether any Securities have become convertible pursuant to this Article 10. The
Trustee makes no representation as to the validity or value of any securities or
assets issued upon conversion of Securities. The Trustee shall not be
responsible for any failure of the Company to comply with this Article 10. Each
Conversion Agent other than the Company shall have the same protection under
this Section 10.11 as the Trustee.
The rights, privileges, protections, immunities and benefits
given to the Trustee under this Indenture including, without limitation, its
rights to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each Paying Agent or Conversion
Agent acting hereunder.
Section 10.12 Unconditional Right of Holders to Convert.
-------------------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Securities shall have the right, which is absolute and unconditional, to convert
its Securities in accordance with this Article 10 and to bring an action for the
enforcement of any such right to convert, and such rights shall not be impaired
or affected without the consent of such Holder.
61
ARTICLE XI
MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls. If any provision of
-----------------------------------------
this Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 11.2 Notices. Any request, demand, authorization,
--------------------
notice, waiver, consent or communication shall be in writing and delivered in
person or mailed by first-class mail, postage prepaid, addressed as follows or
transmitted by facsimile transmission (confirmed by guaranteed overnight
courier) to the following facsimile numbers:
if to the Company:
Greater Bay Bancorp.
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
Attention: Xxxxx X. Xxxxxxxx
if to the Trustee:
Wilmington Trust Company
Xxxxxx Square North
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
Attention: Corporate Trust Administration
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Securityholder shall be
mailed to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
62
If the Company mails a notice or communication to the
Securityholders, it shall mail a copy to the Trustee and each Registrar, Paying
Agent, Conversion Agent or co-registrar.
Section 11.3 Communication by Holders with Other Holders.
--------------------------------------------------------
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
Section 11.4 Certificate and Opinion as to Conditions
-----------------------------------------------------
Precedent. Upon any request or application by the Company to the Trustee to take
---------
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any, provided for
in this Indenture relating to the proposed action have been complied
with; and
(2) an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been
complied with.
Section 11.5 Statements Required in Certificate or Opinion.
----------------------------------------------------------
Each Officers' Certificate or Opinion of Counsel with respect to compliance with
a covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such
Officers' Certificate or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of
the examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are
based;
(3) a statement that, in the opinion of each such
person, he has made such examination or investigation as is necessary
to enable such person to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person,
such covenant or condition has been complied with.
Section 11.6 Separability Clause. In case any provision in
--------------------------------
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 11.7 Rules by Trustee, Paying Agent, Conversion Agent
-------------------------------------------------------------
and Registrar. The Trustee may make reasonable rules for action by or a meeting
-------------
of Securityholders. The Registrar, the Conversion Agent, Calculation Agent and
the Paying Agent may make reasonable rules for their functions.
Section 11.8 Legal Holidays. A "Legal Holiday" is any day
---------------------------
other than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the
63
action shall be taken on the next succeeding day that is not a Legal Holiday,
and, if the action to be taken on such date is a payment in respect of the
Securities, no Issue Discount or interest, if any, shall accrete or accrue for
the intervening period.
Section 11.9 GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED BY, AND
--------------------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 11.10 No Recourse Against Others. A director, officer, employee
----------------------------------------
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
Section 11.11 Successors. All agreements of the Company in this
------------------------
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 11.12 Multiple Originals. The parties may sign any number of
--------------------------------
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
64
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this
Indenture on behalf of the respective parties hereto as of the date first above
written.
GREATER BAY BANCORP
By: /s/ Xxxxx X. Xxxxxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxxxxx
Title: President
WILMINGTON TRUST COMPANY,
as Trustee
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Financial Services Officer
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT AND IS
SUBJECT TO THE RULES FOR DEBT INSTRUMENTS WITH CONTINGENT PAYMENTS UNDER
TREASURY REGULATIONS SECTION 1.1275-4(b). FOR INFORMATION REGARDING THE ISSUE
PRICE, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, THE YIELD TO MATURITY,
THE "COMPARABLE YIELD" AND PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY, YOU
SHOULD CONTACT: GREATER BAY BANCORP, 0000 XXXX XXXXXXXX XXXX, XXXX XXXX, XX
00000, ATTENTION: XXXXX X. XXXXXXXX.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF
1933"), OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT
OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE
ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE
TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON
STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO A
QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT OF 1933, (C) TO A NON-U.S.
PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE WITH
REGULATION S UNDER THE SECURITIES ACT OF 1933, (D)
PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT OF 1933 (IF
AVAILABLE), (E) TO AN
2
INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR
WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, IF
AVAILABLE OR (F) PURSUANT TO A REGISTRATION STATEMENT
WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE
SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(F) ABOVE) A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON
SATISFACTION OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
GREATER BAY BANCORP
Zero Coupon Senior Convertible Contingent Debt Securities due 2022
No. CUSIP: 391648 AH 5
Issue Date: April 24, 2002 Issue Discount: $360.77 (for each $1,000
Principal Amount at Maturity)
Issue Price: $639.23
(for each $1,000 Principal Amount at
Maturity)
GREATER BAY BANCORP, a California corporation, promises to pay
to Cede & Co. or registered assigns, the Principal Amount at Maturity of Three
hundred and twelve million, eight hundred seventy-seven thousand dollars
($312,877,000) on April 24, 2022.
This Security shall not bear interest except as specified on
the other side of this Security. Issue Discount will accrete as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: GREATER BAY BANCORP
By: ______________________________
Title: ______________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
WILMINGTON TRUST COMPANY, not in its individual capacity, but solely as Trustee,
certifies that this is one of the Securities referred to in the within-mentioned
Indenture.
By ____________________________________
Authorized Signatory
Dated:
[FORM OF REVERSE SIDE OF CODES]
Zero Coupon Senior Convertible
Contingent Debt Securities due 2022
1. Interest.
Except as provided below, this Security shall not bear interest. Issue
Discount (the difference between the Issue Price and the Principal Amount at
Maturity of the Security), in the period during which a Security remains
outstanding, shall accrete at 2.25% per annum, on a semiannual bond equivalent
basis using a 360-day year comprised of twelve 30-day months, from the Issue
Date of this Security.
Contingent Interest. Interest will accrue on this Security during any
-------------------
six-month period from October 24 to April 23 and from April 24 to October 23,
commencing October 24, 2002, if the average Trading Price of the Security for
the five trading day period ending on (if the second Business Day is not a
trading day, then on the last trading day prior to) the second Business Day
prior to the first day of the applicable six-month period equals 120% or more of
the sum of the Issue Price and accreted Issue Discount for such Security to the
day immediately preceding the relevant six-month period.
The "Trading Price" of the Securities means: (i) the average of the
secondary market bid quotations per Securities obtained by the Company or the
Calculation Agent for $10,000,000 principal amount of the Securities at
approximately 3:30 p.m., New York City time, on such determination date from
three independent nationally recognized securities dealers selected by the
Company; (ii) if at least three such bids cannot reasonably be obtained by the
Company or the Calculation Agent, but two such bids are obtained, then the
average of the two bids shall be used; (iii) if only one such bid can reasonably
be obtained by the Company or the Calculation Agent, this one bid shall be used;
or (iv) if the Company or the Calculation Agent cannot reasonably obtain at
least one bid for $10,000,000 principal amount of the Securities from a
nationally recognized securities dealer or in the Company's reasonable judgment,
the bid quotations are not indicative of the secondary market value of the
Securities, then the trading price of the Securities will equal (x) the
then-applicable conversion rate of the Securities multiplied by (y) the Closing
Price of the Company's Common Stock on such determination date, appropriately
adjusted.
The Calculation Agent will initially be the Trustee. The Company may
change the Calculation Agent, but the Calculation Agent will not be an Affiliate
of the Company. The Calculation Agent will solicit bids from securities dealers
that are believed by the Company to be willing to bid for the Securities.
The amount of contingent interest payable on this Security in respect
of any six-month period, if any, will equal the greater of (i) 0.35% per annum
and (ii) a per annum rate equal to 5% of the Company's borrowing rate for senior
non-convertible, non-contingent fixed-rate Indebtedness with a maturity and
other terms comparable to this Security (but in no case more
2
than 0.5%) multiplied by the sum of the Issue Price and the accreted Issue
Discount as of the Business Day immediately preceding the applicable six-month
period. The Company will determine its borrowing rate for senior
non-convertible, fixed-rate Indebtedness with a maturity comparable to this
Security, on such basis as it, in good faith, considers appropriate.
Contingent interest, if any, will be payable to the Holders of this
Security as of the fifteenth day preceding the last day of the relevant
six-month period. Such payments will be paid on the last day of the relevant
six-month period.
Issue Discount will continue to accrete at the yield to maturity
whether or not contingent interest is paid.
Upon determination that the Holder of this Security is entitled to
receive contingent interest which may become payable during a relevant six-month
period, on or prior to the start of such six-month period, the Company will
publicly announce such determination and publish it on the Company's site on the
World Wide Web.
The Company will not pay contingent interest accrued and unpaid on this
Security upon conversion into Common Stock, except under certain limited
circumstances described below.
Semiannual Interest Payments at the Company's Option. From and after
----------------------------------------------------
the date of the occurrence of a Tax Event, the Company will have the option to
elect to have interest in lieu of future Issue Discount accrue at 2.25% per year
on a restated principal amount per Security and to pay such interest in cash.
The "restated principal amount" of a Security will be equal to the Issue Price
plus Issue Discount accreted to the date of the Tax Event or the date on which
the Company exercises the option described herein, whichever is later (the
"Option Exercise Date").
Such interest shall accrue from the Option Exercise Date and will be
payable semiannually on interest payment dates of April 23 and October 23 of
each year to Holders of record at the close of business on April 8 or October 8
immediately preceding the interest payment date. Interest will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the Option Exercise Date. In the event that the Company exercises its
option to pay interest, the Redemption Price, Purchase Price and Change in
Control Purchase Price will be adjusted to reflect the restated principal
amount.
A "Tax Event" means that the Company shall have received an opinion
from independent tax counsel experienced in such matters to the effect that, on
or after April 18, 2002, as a result of:
(i) any amendment to, or change (including any announced proposed
change) in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, or
(ii) any amendment to, or change in, an interpretation or application
of such laws or regulations by any legislative body, court, governmental agency
or regulatory authority,
in each case which amendment or change is enacted, promulgated, issued or
announced or which interpretation is issued or announced, on or after April 18,
2002 there is more than an
3
insubstantial risk that interest (including issue discount and contingent
interest) payable on this Security either:
(i) would not be deductible on a current accrual basis, or
(ii) would not be deductible under any other method,
in either case in whole or in part, by the Company (by reason of deferral,
disallowance, or otherwise) for United States federal income tax purposes.
General. If this Security is redeemed on a date that is after the
-------
record date and prior to the corresponding interest payment date, interest, if
any, accrued and unpaid hereon to but not including the applicable Redemption
Date will be paid to the same Holder to whom the Company pays the principal of
this Security.
Interest on Securities converted after a record date but prior to the
corresponding interest payment date will be paid to the Holder of the Securities
on the record date but, upon conversion the Holder must pay the Company the
interest which has accrued and will be paid on such interest payment date. No
such payment need be made with respect to Securities which will be redeemed
after a record date and prior to the corresponding interest payment date.
Except as provided below, interest will be paid (i) on the Global
Securities to DTC in immediately available funds, (ii) on the Certificated
Securities having an aggregate Principal Amount at Maturity of $5,000,000 or
less, by check mailed to the Holders of such Securities; and (iii) on the
Certificated Securities having an aggregate Principal Amount at Maturity of more
than $5,000,000, by wire transfer in immediately available funds at the election
of the Holders of these Securities.
Contingent interest and interest payable upon a conversion of a
Security to semiannual coupon Securities will be computed on the basis of a
360-day year comprised of twelve 30-day months.
If the Principal Amount at Maturity hereof or any portion of such
Principal Amount at Maturity is not paid when due (whether upon acceleration
pursuant to Section 6.2 of the Indenture, upon the date set for payment of the
Redemption Price pursuant to paragraph 5 hereof, upon the date set for payment
of the Purchase Price or Change in Control Purchase Price pursuant to paragraph
6 hereof or upon the Stated Maturity of this Security), then in each such case
the overdue amount shall, to the extent permitted by law, bear interest at the
rate of 2.25% per annum, compounded semiannually, which interest shall accrue
from the date such overdue amount was originally due to the date payment of such
amount, including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Redemption Prices, Purchase Prices, Change in
Control Purchase Prices and at Stated Maturity to Holders who surrender
Securities to a Paying Agent to collect such payments in respect of the
Securities. The Company will pay cash amounts in money of the United States that
4
at the time of payment is legal tender for payment of public and private debts.
However, the Company may make such cash payments by check payable in such money.
3. Paying Agent, Conversion Agent and Registrar.
Initially, the Trustee will act as Paying Agent, Conversion Agent,
Calculation Agent and Registrar. The Company may appoint and change any Paying
Agent, Conversion Agent, Calculation Agent or Registrar without notice, other
than notice to the Trustee; provided that the Company will maintain at least one
Paying Agent in the State of New York, City of New York, Borough of Manhattan,
which shall initially be an office or agency of the Trustee. The Company or any
of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent, Calculation Agent or Registrar.
4. Indenture.
The Company issued the Securities under an Indenture dated as of April
24, 2002 (the "Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as in effect from
time to time (the "TIA"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
The Securities are general unsecured obligations of the Company limited
to $375,452,000 aggregate Principal Amount at Maturity (subject to Section 2.7
of the Indenture). The Indenture does not limit other indebtedness of the
Company, secured or unsecured.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company at the Redemption Prices set forth below plus contingent interest
and additional amounts, if any, accrued and unpaid to the Redemption Date,
provided that the Securities are not redeemable prior to April 24, 2007.
The table below shows the Redemption Prices of $1,000 Principal Amount
at Maturity of a Security on the dates shown below and at Stated Maturity, which
prices reflect accreted Issue Discount calculated to each such date. The
Redemption Price of a Security redeemed between such dates shall include an
additional amount reflecting the accreted Issue Discount accrued since the next
preceding date in the table.
Accreted Issue Redemption
Redemption Date Issue Price Discount Price
------------------------------------ ----------- --------------- ----------
April 24:
2007 ............................... $ 639.23 $ 75.67 $ 714.90
2008 ............................... $ 639.23 $ 91.84 $ 731.07
2009 ............................... $ 639.23 $ 108.39 $ 747.62
2010 ............................... $ 639.23 $ 125.30 $ 764.53
2011 ............................... $ 639.23 $ 142.60 $ 781.83
5
2012 ............................... $ 639.23 $ 160.29 $ 799.52
2013 ............................... $ 639.23 $ 178.38 $ 817.61
2014 ............................... $ 639.23 $ 196.88 $ 836.11
2015 ............................... $ 639.23 $ 215.80 $ 855.03
2016 ............................... $ 639.23 $ 235.14 $ 874.37
2017 ............................... $ 639.23 $ 254.93 $ 894.16
2018 ............................... $ 639.23 $ 275.16 $ 914.39
2019 ............................... $ 639.23 $ 295.85 $ 935.08
2020 ............................... $ 639.23 $ 317.01 $ 956.24
2021 ............................... $ 639.23 $ 338.64 $ 977.87
At stated maturity ................. $ 639.23 $ 360.77 $ 1,000.00
If converted to semiannual coupon notes following the occurrence of a
Tax Event, the Security will be redeemable at the restated principal amount plus
accrued and unpaid interest from the date of conversion through the conversion
date.
6. Purchase By the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, all or any portion of
the Securities held by such Holder in integral multiples of $1,000 Principal
Amount at Maturity on the following Purchase Dates and at the following Purchase
Prices per $1,000 Principal Amount at Maturity, plus, in each case, accrued and
unpaid contingent interest and additional amounts, if any, to the Purchase Date
upon delivery of a Purchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is 20
Business Days prior to such Purchase Date until the close of business on the
third Business Day prior to such Purchase Date, and upon delivery of the
Securities to the Paying Agent by the Holder as set forth in the Indenture.
Purchase Price Purchase Price
-------------- --------------
April 24, 2004 $ 668.49
April 24, 2007 $ 714.90
April 24, 2012 $ 799.52
April 24, 2017 $ 894.16
The purchase prices shown above are equal to the issue price plus
accreted issue discount to the purchase date. If prior to a purchase date the
Securities have been converted to semiannual coupon Securities following the
occurrence of a Tax Event, the Purchase Price will be equal to the restated
principal amount plus accrued and unpaid interest from the Option Exercise Date
to the Purchase Date.
The Purchase Price shall be paid by the Company in cash.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase the Securities
held by such Holder no later than 30 days after the Company's delivery of notice
of a Change in Control of the Company (as required
6
by Section 3.8(b) of the Indenture) for a Change in Control Purchase Price equal
to the Issue Price plus accreted Issue Discount plus accrued and unpaid
contingent interest and additional amounts, if any, to the Change in Control
Purchase Date, which Change in Control Purchase Price shall be paid in cash;
provided, that if prior to a Change in Control Purchase Date the Securities have
been converted to semiannual coupon Securities following the occurrence of a Tax
Event, the Company will be required to purchase the Securities at a cash price
equal to the restated principal amount plus accrued and unpaid interest
(including contingent interest and additional amounts, if any) from the Option
Exercise Date to the Change in Control Purchase Date.
Holders have the right to withdraw any Purchase Notice or Change in Control
Purchase Notice, as the case may be, by delivering to the Paying Agent a written
notice of withdrawal in accordance with the provisions of the Indenture.
If cash sufficient to pay the Purchase Price or Change in Control Purchase
Price, as the case may be, of all Securities or portions thereof to be purchased
as of the Purchase Date or the Change in Control Purchase Date, as the case may
be, is deposited with the Paying Agent on the Business Day following the
Purchase Date or the Change in Control Purchase Date, Issue Discount and other
interest ceases to accrete or accrue on such Securities (or portions thereof)
immediately after such Purchase Date or Change in Control Purchase Date, and the
Holder thereof shall have no other rights as such other than the right to
receive the Purchase Price or Change in Control Purchase Price upon surrender of
such Security.
7. Notice of Redemption.
Notice of redemption pursuant to paragraph 5 of this Security will be
mailed at least 20 days but not more than 60 days before the Redemption Date to
each Holder of Securities to be redeemed at the Holder's registered address. If
money sufficient to pay the Redemption Price of all Securities (or portions
thereof) to be redeemed on the Redemption Date is deposited with the Paying
Agent prior to or on the Redemption Date, immediately after such Redemption Date
Issue Discount ceases to accrete on such Securities or portions thereof.
Securities in denominations larger than $1,000 of Principal Amount at Maturity
may be redeemed in part but only in integral multiples of $1,000 of Principal
Amount at Maturity.
8. Conversion.
Subject to and in compliance with the provisions of the Indenture
(including, without limitation, the conditions to conversion of this Security
set forth in Section 10.1 thereof), a Holder is entitled, at such Holder's
option, to convert the Holder's Security (or any portion of the Principal Amount
at Maturity thereof that is $1,000 or an integral multiple $1,000), into a
number of fully paid and nonassessable shares of Common Stock equal to the
Conversion Rate in effect at the time of conversion.
The Company will notify Holders of any event triggering the right to
convert the Securities as specified above in accordance with the Indenture.
A Security in respect of which a Holder has delivered a Purchase Notice or
Change in Control Purchase Notice exercising the option of such Holder to
require the Company to
7
purchase such Security may be converted only if such notice of exercise is
withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is 15.3699 shares of Common Stock per $1,000
Principal Amount at Maturity, subject to adjustment in certain events described
in the Indenture.
To surrender a Security for conversion, a Holder must (1) complete and
manually sign the conversion notice below (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent, (2)
surrender the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents and (4) pay any transfer or similar tax, if
required.
A Holder may convert a portion of a Security if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment will be made for dividends on the shares of Common Stock except as
provided in the Indenture. On conversion of a Security, that portion of accreted
Issue Discount attributable to the period from the Issue Date through the
Conversion Date with respect to the converted Security shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
Holder thereof through the delivery of the Common Stock (together with the cash
payment, if any, in lieu of fractional shares) in exchange for the Security
being converted pursuant to the terms hereof; and the fair market value of such
shares of Common Stock (together with any such cash payment in lieu of
fractional shares) shall be treated as issued, to the extent thereof, first in
exchange for Issue Discount accreted through the Conversion Date, and the
balance, if any, of such fair market value of such Common Stock (and any such
cash payment) shall be treated as issued in exchange for the Issue Price of the
Security being converted pursuant to the provisions hereof.
No fractional shares of Common Stock shall be issued upon conversion of any
Security. Instead of any fractional share of Common Stock that would otherwise
be issued upon conversion of such Security, the Company shall pay a cash
adjustment as provided in the Indenture.
The Conversion Rate may be adjusted from time to time as set forth in the
Indenture.
The Company from time to time may voluntarily increase the Conversion Rate
as set forth in the Indenture.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the Indenture, the right to convert a
Security into shares of Common Stock may be changed into a right to convert it
into securities, cash or other assets of the Company or another person.
9. Conversion Arrangement on Call for Redemption.
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the day that is two Business Days prior to the
Redemption Date, may be deemed to be purchased from the Holders of such
Securities at an amount not less than the Redemption Price, by one or more
investment bankers or other purchasers who may agree with the Company
8
to purchase such Securities from the Holders, to convert them into shares of
Common Stock and to make payment for such Securities to the Trustee in trust for
such Holders.
10. Tax Treatment.
The Company agrees, and by acceptance of a beneficial ownership interest in
the Securities each Holder of Securities will be deemed to have agreed, for
United States federal income tax purposes, (i) to treat the Securities as
indebtedness that is subject to United States Treasury regulation section
1.1275-4 (the "Contingent Payment Debt Regulations") and, for purposes of the
Contingent Payment Debt Regulations, to treat the fair market value of any stock
beneficially received by a Holder upon any conversion of the Securities as a
contingent payment and (ii) to be bound by the Company's determination of the
comparable yield and projected payment schedule, within the meaning of the
Contingent Payment Debt Regulations, with respect to the Securities. A Holder of
Securities may obtain the issue price, issue date, amount of original issue
discount, yield to maturity, comparable yield and projected payment schedule by
submitting a written request to the Company at the following address: Greater
Bay Bancorp, 0000 Xxxx Xxxxxxxx Xxxx, Xxxx Xxxx, XX 00000, Attention: Xxxxx X.
Xxxxxxxx.
11. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount at Maturity and integral multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not transfer
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities in respect of which a Purchase Notice or Change in Control
Purchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.
12. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
13. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the Company upon written
request any money or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years, subject to
applicable unclaimed property law. After return to the Company, Holders entitled
to the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
9
14. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in aggregate Principal Amount at Maturity of the Securities at
the time outstanding and (ii) certain Defaults may be waived with the written
consent of the Holders of a majority in aggregate Principal Amount at Maturity
of the Securities at the time outstanding. Subject to certain exceptions set
forth in the Indenture, without the consent of any Securityholder, the Company
and the Trustee may amend the Indenture or the Securities so long as such
changes, other that those in clause (ii), do not materially and adversely affect
the interest of Securityholders (i) to cure any ambiguity, omission, defect or
inconsistency, (ii) to comply with Article 5 of the Indenture, (iii) to add to
the covenants of the Company for the benefit of Securityholders or to secure the
Company's obligations under the Securities and this Indenture, or (iv) to comply
with any requirement of the SEC in connection with the qualification of the
Indenture under the TIA.
15. Defaults and Remedies.
If any Event of Default with respect to Securities shall occur and be
continuing, the principal of all the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.
16. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
17. Calculations in Respect of Securities.
The Company or its agents will be responsible for making all calculations
called for under the Securities including, but not limited to, determination of
the Trading Prices for the Securities and the Closing Prices of the Common Stock
and the amounts of contingent interest payments, if any. Any calculations made
in good faith and without manifest error will be final and binding on Holders of
the Securities. The Company will be required to deliver to the Trustee a
schedule of its calculations and the Trustee will be entitled to rely upon the
accuracy of such calculations without independent verification.
18. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Securities
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. By accepting a Security, each Securityholder
waives and releases all such liability. The waiver and release are part of the
consideration for the issue of the Securities.
10
19. Authentication.
This Security shall not be valid until an authorize signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
20. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
21. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY.
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
Greater Bay Bancorp
0000 Xxxx Xxxxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Investor Relations Department
11
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill in the To convert this Security into Common
form below: Stock of the Company, check the box [_]
I or we assign and transfer this To convert only part of this Security,
Security to state the Principal Amount at Maturity
_________________________ to be converted (which must be $1,000 or
_________________________ an integral multiple of $1,000):
(Insert assignee's soc. sec. or tax
ID no.) If you want the stock certificate made
_________________________ out in another person's name fill in the
_________________________ form below:
_________________________
(Print or type assignee's name, _________________________
address and zip code) _________________________
(Insert the other person's soc. sec. tax
ID no.
and irrevocably appoint
__________________________
____________________ agent to __________________________
transfer this Security on the books __________________________
of the Company. The agent may __________________________
substitute another to act for him. __________________________
(Print or type other person's name,
address and zip code)
Date: __________ Your Signature: ______________________________________________
________________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed
________________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
By: ____________________________________
Authorized Signatory
EXHIBIT A-2
[Form of Certificated Security]
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT AND IS SUBJECT
TO THE RULES FOR DEBT INSTRUMENTS WITH CONTINGENT PAYMENTS UNDER TREASURY
REGULATIONS SECTION 1.1275-4(b). FOR INFORMATION REGARDING THE ISSUE PRICE, THE
AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE, THE YIELD TO MATURITY, THE
"COMPARABLE YIELD" AND PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY, YOU SHOULD
CONTACT: GREATER BAY BANCORP, 0000 XXXX XXXXXXXX XXXX, XXXX XXXX, XX 00000,
ATTENTION: XXXXX X. XXXXXXXX.
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR
ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN
THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT OF 1933;
(2) AGREES THAT IT WILL NOT WITHIN TWO YEARS AFTER THE ORIGINAL
ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THE
SECURITY EVIDENCED HEREBY OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT OF 1933, (C)
TO A NON-U.S. PERSON OUTSIDE THE UNITED STATES IN COMPLIANCE
WITH REGULATION S UNDER THE SECURITIES ACT OF 1933, (D) PURSUANT
TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER
THE SECURITIES ACT OF 1933 (IF AVAILABLE), (E) TO AN
INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE
MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER
THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT, IF AVAILABLE OR (F) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER
THE SECURITIES ACT OF 1933 AND WHICH CONTINUES TO BE EFFECTIVE
AT THE TIME OF SUCH TRANSFER; AND
(3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY
EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A TRANSFER PURSUANT
TO CLAUSE 2(F) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND.
[THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON
SATISFACTION OF THE CONDITIONS SPECIFIED IN THE INDENTURE.]
2
GREATER BAY BANCORP
Zero Coupon Senior Convertible Contingent Debt Securities due 2022
No. CUSIP: 391648 AH 5
Issue Date: April 24, 2002 Issue Discount: $360.77 (for each
Issue Price: $639.23 $1,000 Principal Amount at
(for each $1,000 Principal Amount Maturity)
at Maturity)
GREATER BAY BANCORP, a Delaware corporation, promises to pay to
____________ or registered assigns, the Principal Amount at Maturity of
[_____________________ ($____________)] on ____________ _____, 2022.
This Security shall not bear interest except as specified on the other side
of this Security. Issue Discount will accrete as specified on the other side of
this Security. This Security is convertible as specified on the other side of
this Security.
Additional provisions of this Security are set forth on the other side of
this Security.
Dated: GREATER BAY BANCORP
By: _______________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
WILMINGTON TRUST COMPANY,
not in its individual capacity, but solely
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By ___________________________
Authorized Signatory
Dated:
[FORM OF REVERSE SIDE IS IDENTICAL TO A-1]
EXHIBIT B-1
Transfer Certificate
In connection with any transfer of any of the Securities within the
period prior to the expiration of the holding period applicable to the sales
thereof under Rule 144(k) under the Securities Act of 1933, as amended (the
"Securities Act") (or any successor provision), the undersigned registered owner
of this Security hereby certifies with respect to $____________ Principal Amount
at Maturity of the above-captioned Securities presented or surrendered on the
date hereof (the "Surrendered Securities") for registration of transfer, or for
exchange or conversion where the securities issuable upon such exchange or
conversion are to be registered in a name other than that of the undersigned
registered owner (each such transaction being a "transfer"), that such transfer
complies with the restrictive legend set forth on the face of the Surrendered
Securities for the reason checked below:
[_] A transfer of the Surrendered Securities is made to the Company
or any subsidiaries; or
[_] The transfer of the Surrendered Securities complies with Rule
144A under the U.S. Securities Act of 1933, as amended (the
"Securities Act"); or
[_] The transfer of the Securities is made to a "non-U.S. person" (as
such term is used in Regulation S under the Securities Act
("Regulation S")) in compliance with Regulation S; or
[_] The transfer of the Surrendered Securities complies with Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act; or
[_] The transfer of the Surrendered Securities is pursuant to an
effective registration statement under the Securities Act, or
[_] The transfer of the Surrendered Securities is pursuant to another
available exemption from the registration requirement of the
Securities Act.
and unless the box below is checked, the undersigned confirms that, to
the undersigned's knowledge, such Securities are not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act (an
"Affiliate").
[_] The transferee is an Affiliate of the Company.
DATE: __________________________________
Signature(s)
2
(If the registered owner is a corporation, partnership or fiduciary,
the title of the Person signing on behalf of such registered owner must be
stated.)
Signature Guaranteed
_______________________________________
Participant in a Recognized Signature
Guarantee Medallion Program
By: _____________________________
Authorized Signatory