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EXHIBIT 4.5
AMKOR TECHNOLOGY, INC.
AND
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STATE STREET BANK AND TRUST COMPANY
AS TRUSTEE
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$225,000,000
5% Convertible Subordinated Notes due 2007*
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INDENTURE
Dated as of March 22, 2000
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* Plus an over-allotment option to purchase up to $33,750,000 principal
amount of 5% Convertible Subordinated Notes due 2007.
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TABLE OF CONTENTS
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ARTICLE 1 Definitions................................................................................................ 1
SECTION 1.01 Definitions......................................................................... 1
SECTION 1.02 Other Definitions................................................................... 8
SECTION 1.03 Incorporation by Reference of Trust Indenture Act................................... 9
SECTION 1.04 Rules of Construction............................................................... 9
ARTICLE 2 The Convertible Subordinated Notes......................................................................... 10
SECTION 2.01 Form and Dating..................................................................... 10
SECTION 2.02 Execution and Authentication........................................................ 11
SECTION 2.03 Registrar, Paying Agent and Conversion Agent........................................ 12
SECTION 2.04 Paying Agent To Hold Money in Trust................................................. 12
SECTION 2.05 Holder Lists........................................................................ 13
SECTION 2.06 Transfer and Exchange............................................................... 13
SECTION 2.07 Replacement Convertible Subordinated Notes.......................................... 16
SECTION 2.08 Outstanding Convertible Subordinated Notes.......................................... 17
SECTION 2.09 When Treasury Convertible Subordinated Notes Disregarded............................ 18
SECTION 2.10 Temporary Convertible Subordinated Notes............................................ 18
SECTION 2.11 Cancellation........................................................................ 19
SECTION 2.12 Defaulted Interest.................................................................. 19
SECTION 2.13 CUSIP Number........................................................................ 19
SECTION 2.14 Regulation S........................................................................ 19
ARTICLE 3 Redemption................................................................................................. 20
SECTION 3.01 Optional Redemption................................................................. 20
SECTION 3.02 Notices to Trustee.................................................................. 20
SECTION 3.03 Selection of Convertible Subordinated Notes To Be Redeemed.......................... 20
SECTION 3.04 Notice of Redemption................................................................ 21
SECTION 3.05 Effect of Notice of Redemption...................................................... 22
SECTION 3.06 Deposit of Redemption Price......................................................... 22
SECTION 3.07 Convertible Subordinated Notes Redeemed in Part..................................... 23
SECTION 3.08 Conversion Arrangement on Call for Redemption....................................... 23
ARTICLE 4 Covenants.................................................................................................. 24
SECTION 4.01 Payment of Convertible Subordinated Notes........................................... 24
SECTION 4.02 Commission Reports.................................................................. 24
SECTION 4.03 Compliance Certificate.............................................................. 24
SECTION 4.04 Maintenance of Office or Agency..................................................... 25
SECTION 4.05 Continued Existence................................................................. 25
SECTION 4.06 Repurchase Upon Designated Event.................................................... 25
SECTION 4.07 Appointments to Fill Vacancies in Trustee's Office.................................. 28
SECTION 4.08 Stay, Extension and Usury Laws...................................................... 28
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SECTION 4.09 Repurchase Upon Related Transactions Event.......................................... 28
SECTION 4.10 Taxes............................................................................... 30
SECTION 4.11 Cash Maintenance.................................................................... 31
ARTICLE 5 Successors................................................................................................. 31
SECTION 5.01 When the Company May Merge, Etc..................................................... 31
SECTION 5.02 Successor Corporation Substituted................................................... 32
SECTION 5.03 Purchase Option on Change of Control................................................ 32
ARTICLE 6 Defaults and Remedies...................................................................................... 32
SECTION 6.01 Events of Default................................................................... 32
SECTION 6.02 Acceleration........................................................................ 34
SECTION 6.03 Other Remedies...................................................................... 35
SECTION 6.04 Waiver of Past Defaults............................................................. 35
SECTION 6.05 Control by Majority................................................................. 36
SECTION 6.06 Limitation on Suits................................................................. 36
SECTION 6.07 Rights of Holders To Receive Payment................................................ 36
SECTION 6.08 Collection Suit by Trustee.......................................................... 37
SECTION 6.09 Trustee May File Proofs of Claim.................................................... 37
SECTION 6.10 Priorities.......................................................................... 37
SECTION 6.11 Undertaking for Costs............................................................... 38
ARTICLE 7 The Trustee................................................................................................ 38
SECTION 7.01 Duties of the Trustee............................................................... 38
SECTION 7.02 Rights of the Trustee............................................................... 39
SECTION 7.03 Individual Rights of the Trustee.................................................... 40
SECTION 7.04 Trustee's Disclaimer................................................................ 41
SECTION 7.05 Notice of Defaults.................................................................. 41
SECTION 7.06 Reports by the Trustee to Holders................................................... 41
SECTION 7.07 Compensation and Indemnity.......................................................... 41
SECTION 7.08 Replacement of the Trustee.......................................................... 42
SECTION 7.09 Successor Trustee by Merger, etc.................................................... 44
SECTION 7.10 Eligibility, Disqualification....................................................... 44
SECTION 7.11 Preferential Collection of Claims Against Company................................... 44
ARTICLE 8 Satisfaction and Discharge of Indenture.................................................................... 44
SECTION 8.01 Discharge of Indenture.............................................................. 44
SECTION 8.02 Deposited Monies to be Held in Trust by Trustee..................................... 45
SECTION 8.03 Paying Agent to Repay Monies Held................................................... 45
SECTION 8.04 Return of Unclaimed Monies.......................................................... 45
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SECTION 8.05 Reinstatement....................................................................... 45
ARTICLE 9 Amendments................................................................................................. 46
SECTION 9.01 Without the Consent of Holders...................................................... 46
SECTION 9.02 With the Consent of Holders......................................................... 47
SECTION 9.03 Compliance with the Trust Indenture Act............................................. 48
SECTION 9.04 Revocation and Effect of Consents................................................... 48
SECTION 9.05 Notation on or Exchange of Convertible Subordinated Notes........................... 49
SECTION 9.06 Trustee Protected................................................................... 49
ARTICLE 10 General Provisions........................................................................................ 49
SECTION 10.01 Trust Indenture Act Controls........................................................ 49
SECTION 10.02 Notices............................................................................. 49
SECTION 10.03 Communication by Holders With Other Holders......................................... 50
SECTION 10.04 Certificate and Opinion as to Conditions Precedent.................................. 50
SECTION 10.05 Statements Required in Certificate or Opinion....................................... 51
SECTION 10.06 Rules by Trustee and Agents......................................................... 51
SECTION 10.07 Legal Holidays...................................................................... 51
SECTION 10.08 No Recourse Against Others.......................................................... 52
SECTION 10.09 Counterparts........................................................................ 52
SECTION 10.10 Other Provisions.................................................................... 52
SECTION 10.11 Governing Law....................................................................... 53
SECTION 10.12 No Adverse Interpretation of Other Agreements....................................... 53
SECTION 10.13 Successors.......................................................................... 53
SECTION 10.14 Severability........................................................................ 53
SECTION 10.15 Table of Contents, Headings, Etc.................................................... 53
ARTICLE 11 Subordination............................................................................................. 53
SECTION 11.01 Agreement to Subordinate............................................................ 53
SECTION 11.02 Liquidation; Dissolution; Bankruptcy................................................ 54
SECTION 11.03 Default on Senior Debt and/or Designated Senior Debt................................ 54
SECTION 11.04 Acceleration of Convertible Subordinated Notes...................................... 55
SECTION 11.05 When Distribution Must Be Paid Over................................................. 55
SECTION 11.06 Notice by Company................................................................... 56
SECTION 11.07 Subrogation......................................................................... 56
SECTION 11.08 Relative Rights..................................................................... 56
SECTION 11.09 Subordination May Not Be Impaired by Company........................................ 57
SECTION 11.10 Distribution or Notice to Representative............................................ 57
SECTION 11.11 Rights of Trustee and Paying Agent.................................................. 57
SECTION 11.12 Authorization to Effect Subordination............................................... 58
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SECTION 11.13 Article Applicable to Paying Agents................................................. 58
SECTION 11.14 Senior Debt Entitled to Rely........................................................ 58
SECTION 11.15 Permitted Payments.................................................................. 58
ARTICLE 12 Conversion of Convertible Subordinated Notes.............................................................. 59
SECTION 12.01 Right to Convert.................................................................... 59
SECTION 12.02 Exercise of Conversion Privilege; Issuance of Common Stock on
Conversion; No Adjustment for Interest or Dividends................................. 59
SECTION 12.03 Cash Payments in Lieu of Fractional Shares.......................................... 61
SECTION 12.04 Conversion Price.................................................................... 61
SECTION 12.05 Adjustment of Conversion Price...................................................... 61
SECTION 12.06 Effect of Reclassification, Consolidation, Merger or Sale........................... 70
SECTION 12.07 Taxes on Shares Issued.............................................................. 71
SECTION 12.08 Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock............. 71
SECTION 12.09 Responsibility of Trustee........................................................... 72
SECTION 12.10 Notice to Holders Prior to Certain Actions.......................................... 72
SECTION 12.11 Restriction on Common Stock Issuable Upon Conversion................................ 73
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THIS INDENTURE, dated as of March 22, 2000, is between Amkor
Technology, Inc., a Delaware corporation (the "Company"), and State Street Bank
and Trust Company, a trust company duly organized and existing under laws of the
Commonwealth of Massachusetts (the "Trustee"). The Company has duly authorized
the creation of its 5% Convertible Subordinated Notes due 2007 (the "Convertible
Subordinated Notes") and to provide therefor the Company and the Trustee have
duly authorized the execution and delivery of this Indenture. Each party agrees
as follows for the benefit of the other party and for the equal and ratable
benefit of the holders from time to time of the Convertible Subordinated Notes:
ARTICLE 1
DEFINITIONS
SECTION 1.01 Definitions.
"Acquiring Person" means any person (as defined in Section 13(d)(3) of
the Exchange Act) who or which, together with all affiliates and associates
(each as defined in Rule 12b-2 under the Exchange Act), becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act and as further
defined below) of shares of Common Stock or other voting securities of the
Company having more than 50% of the total voting power of the Voting Stock of
the Company; provided, however, that an Acquiring Person shall not include (i)
the Company, (ii) any subsidiary of the Company, (iii) any Permitted Holder,
(iv) an underwriter engaged in a firm commitment underwriting in connection with
a public offering of the Voting Stock of the Company or (v) any current or
future employee or director benefit plan of the Company or any subsidiary of the
Company or any entity holding Common Stock of the Company for or pursuant to the
terms of any such plan. For purposes hereof, a person shall not be deemed to be
the beneficial owner of (A) any securities tendered pursuant to a tender or
exchange offer made by or on behalf of such person or any of such person's
affiliates until such tendered securities are accepted for purchase or exchange
thereunder, or (B) any securities if such beneficial ownership (1) arises solely
as a result of a revocable proxy delivered in response to a proxy or consent
solicitation made pursuant to the applicable rules and regulations under the
Exchange Act, and (2) is not also then reportable on Schedule 13D (or any
successor schedule) under the Exchange Act.
"Affiliate" means, when used with reference to any person, any other
person directly or indirectly controlling, controlled by, or under direct or
indirect common control of, the referent 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 management or policies of the referent
person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise. The terms "controlling" and "controlled"
have meanings correlative of the foregoing.
"Agent" means any Registrar, Paying Agent, Conversion Agent or
co-registrar.
"Agent Member" means any member of, or participant in, the Depositary.
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"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 Global Security to
the extent applicable to such transaction and as in effect from time to
time.
"ASI" means Anam Semiconductor, Inc.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"Capital Stock" of any person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such person, but excluding any debt
securities convertible into such equity.
"Change of Control" means the occurrence of one or more of the
following events: (a) any person has become an Acquiring Person, (b) the Company
consolidates with or merges into any other corporation, or conveys, transfers or
leases all or substantially all of its assets to any person, or any other
corporation merges into the Company, and, in the case of any such transaction,
the outstanding Common Stock of the Company is changed or exchanged as a result,
unless the stockholders of the Company immediately before such transaction own,
directly or indirectly immediately following such transaction, at least a
majority of the combined voting power of the outstanding voting securities of
the corporation resulting from such transaction in substantially the same
proportion as their ownership of the Voting Stock of the Company immediately
before such transaction, or (c) any time the Continuing Directors do not
constitute a majority of the Board of Directors of the Company (or, if
applicable, a successor corporation to the Company); provided, that a Change of
Control shall not be deemed to have occurred if either (y) the last sale price
of the Common Stock for any five trading days during the ten trading days
immediately preceding the Change of Control is at least equal to 105% of the
Conversion Price in effect on the date of such Change of Control or (z) at least
90% of the consideration (excluding cash payments for fractional shares) in the
transaction or transactions constituting the Change of Control consists of
shares of common stock that are, or upon issuance will be, traded on a United
States national securities exchange or approved for trading on an established
automated over-the-counter trading market in the United States.
"Commission" means the Securities and Exchange Commission.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. Subject to the provisions
of Section 12.06, however, shares issuable on conversion of Convertible
Subordinated Notes shall include only shares of the class designated as Common
Stock of the Company at the date of this Indenture or shares of any class or
classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which are not subject to redemption by the Company; provided
that if at any time there shall be more than one such resulting class, the
shares of each such class then so issuable
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shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"Company" means the party named as such above until a successor
replaces it in accordance with Article 5 and thereafter means the successor.
A "consolidated subsidiary" of any person means a subsidiary which for
financial reporting purposes is or, in accordance with GAAP, should be,
accounted for by such person as a consolidated subsidiary.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors who (i) was a member of such Board of Directors
on the date of this Indenture or (ii) was nominated for election or elected to
such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board at the time of such nomination or
election.
"Convertible Subordinated Notes" means the 5% Convertible Subordinated
Notes due 2007 issued, authenticated and delivered under this Indenture.
"Conversion Price" means the initial conversion price specified in the
form of Convertible Subordinated Note in Paragraph 16 of such form, as adjusted
in accordance with the provisions of Article 12.
"Corporate Trust Office" means the corporate trust office of the
Trustee at which at any particular time the trust created by this Indenture
shall principally be administered; as of the date hereof, the Corporate Trust
Office is located at Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx, Xxxxxx, XX 00000.
"Default" means any event that is, or after notice or passage of time,
or both, would be, an Event of Default.
"Depositary" means, with respect to any Global Securities, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Global Securities (or any successor
securities clearing agency so registered), which shall initially be DTC.
"Designated Event" means the occurrence of a Change of Control or a
Termination of Trading.
"Designated Senior Debt" means any particular Senior Debt if the
instrument creating or evidencing the same or the assumption or guarantee
thereof (or related agreements or documents to which the Company is a party)
expressly provides that such Indebtedness shall be "Designated Senior Debt" for
purposes of the Indenture (provided that such instrument, agreement or other
document may place limitations and conditions on the right of such Senior Debt
to exercise the rights of Designated Senior Debt.)
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"DTC" means The Depository Trust Company, a New York corporation.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, which are in effect from time to time.
"Global Security" means a Convertible Subordinated Note that is
registered in the Register.
"Global Securities Legend" means the legend labeled as such and that is
set forth in Exhibit A hereto.
"Indebtedness" means, with respect to any person, all obligations,
whether or not contingent, of such person (i) (a) for borrowed money (including,
but not limited to, any indebtedness secured by a security interest, mortgage or
other lien on the assets of the Company that is (1) given to secure all or part
of the purchase price of property subject thereto, whether given to the vendor
of such property or to another, or (2) existing on property at the time of
acquisition thereof), (b) evidenced by a note, debenture, bond or other written
instrument, (c) under a lease required to be capitalized on the balance sheet of
the lessee under GAAP or under any lease or related document (including a
purchase agreement) that provides that the Company is contractually obligated to
purchase or cause a third party to purchase and thereby guarantee a minimum
residual value of the lease property to the lessor and the obligations of the
Company under such lease or related document to purchase or to cause a third
party to purchase such leased property, (d) in respect of letters of credit,
bank guarantees or bankers' acceptances (including reimbursement obligations
with respect to any of the foregoing), (e) with respect to Indebtedness secured
by a mortgage, pledge, lien, encumbrance, charge or adverse claim affecting
title or resulting in an encumbrance to which the property or assets of such
person are subject, whether or not the obligation secured thereby shall have
been assumed by or shall otherwise be such person's legal liability, (f) in
respect of the balance of deferred and unpaid purchase price of any property or
assets, (g) under interest rate or currency swap agreements, cap, floor and
collar agreements, spot and forward contracts and similar agreements and
arrangements; (ii) with respect to any obligation of others of the type
described in the preceding clause (i) or under clause (iii) below assumed by or
guaranteed in any manner by such person through an agreement to purchase
(including, without limitation, "take or pay" and similar arrangements),
contingent or otherwise (and the obligations of such person under any such
assumptions, guarantees or other such arrangements); and (iii) any and all
deferrals, renewals, extensions, refinancings and refundings of, or amendments,
modifications or supplements to, any of the foregoing.
"Indenture" means this Indenture as amended or supplemented from time
to time.
"Initial Purchasers" means Xxxxxxx Xxxxx Xxxxxx Inc., XX Xxxxx
Securities Corporation, Deutsche Bank Securities Inc., FleetBoston Xxxxxxxxx
Xxxxxxxx Inc., Prudential Securities
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Incorporated, Xxxxxx Xxxxxx Partners LLC, Banc of America Securities LLC, CIBC
Xxxxxxxxxxx Corp. and Soundview Technology Group, Inc.
"Interest Payment Date" means March 15 and September 15 of each year.
"Issue Date" means the date on which Convertible Subordinated Notes are
first issued and authenticated under this Indenture.
"Liquidated Damages" has the meaning specified in paragraph 18 of the
form of Convertible Subordinated Note which is attached as Exhibit A hereto.
"Material Subsidiary" means any subsidiary of the Company which at the
date of determination is a "significant subsidiary" as defined in Rule 1-02(w)
of Regulation S-X under the Securities Act and the Exchange Act.
"Maturity Date" means March 15, 2007.
"Note Custodian" means State Street Bank and Trust Company, as
custodian with respect to any Global Security, or any successor entity thereto.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Financial Officer, the Chief Accounting Officer, any
Executive Vice President, Senior Vice President or Vice President (whether or
not designated by a number or numbers or word or words before or after the title
"Vice President"), the Treasurer, any other executive officer, the Secretary and
any Assistant Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company.
"Opinion of Counsel" means a written opinion from legal counsel who may
be an employee of or counsel to the Company or the Trustee except to the extent
otherwise indicated in this Indenture.
A "person" means any individual, corporation, partnership, joint
venture, trust, estate, unincorporated organization, limited liability company
or government or any agency or political subdivision thereof.
"Permitted Holders" means Xxxxx X. Xxx and his estates, spouses,
ancestors and lineal descendants (and spouses thereof), the legal
representatives of any of the foregoing, and the trustee of any bona fide trust
of which one or more of the foregoing are the sole beneficiaries or the
grantors, or any person of which any of the foregoing, individually or
collectively, beneficially own
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(as defined in Rules 13d-3 and 13d-5 under the Exchange Act) voting securities
representing at least a majority of the total voting power of all classes of
Capital Stock of such person (exclusive of any matters as to which class voting
rights exist).
"Put Expiration Date" means the earlier of (i) to the extent such date
does not occur after August 31, 2000, the date the Related Transactions are
consummated in all material respects, and (ii) 30 days following the Related
Transactions Payment Date.
"Redemption date" when used with respect to any of the Convertible
Subordinated Notes to be redeemed, means the date fixed by the Company for such
redemption pursuant to Article 3 of this Indenture and the Convertible
Subordinated Notes.
"Redemption price" when used with respect to any of the Convertible
Subordinated Notes to be redeemed, means the price fixed for such redemption
pursuant to Article 3 of this Indenture and the Convertible Subordinated Notes.
"Registration Agreement" means the Registration Agreement relating to
the Convertible Subordinated Notes and Common Stock issuable upon conversion of
such Convertible Subordinated Notes dated March 22, 2000, between the Company
and the Initial Purchasers, as such agreement may be amended, modified or
supplemented from time to time.
"Regular Record Date" means the March 1 or September 1 immediately
preceding each Interest Payment Date.
"Related Agreement" means the asset purchase agreement between ASI and
the Company dated as of January 14, 2000 relating to the Related Transactions,
as such agreement may be amended or restated from time to time.
"Related Transactions" means the acquisition by the Company or any of
its subsidiaries from ASI of three of ASI's facilities known as K1, K2 and K3.
"Related Transactions Event" shall have the meaning given thereto in
Section 4.09.
"Representative" means (a) the indenture trustee or other trustee,
agent or representative for any Senior Debt or (b) with respect to any Senior
Debt that does not have any such trustee, agent or other representative, (i) in
the case of such Senior Debt issued pursuant to an agreement providing for
voting arrangements as among the holders or owners of such Senior Debt, any
holder or owner of such Senior Debt acting with the consent of the required
persons necessary to bind such holders or owners of such Senior Debt and (ii) in
the case of all other such Senior Debt, the holder or owner of such Senior Debt.
"Restricted Common Stock Legend" means the legend labeled as such and
that is set forth in Exhibit D hereto.
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"Restricted Securities Legend" means the legend labeled as such and
that is set forth in Exhibit A hereto.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Senior Debt" means the principal of, premium, if any, and interest on,
rent under, and any other amounts payable on or in respect of any Indebtedness
of the Company (including, without limitation, any Obligations in respect of
such Indebtedness and, in the case of Designated Senior Debt, any interest
accruing after the filing of a petition by or against the Company under any
bankruptcy law, whether or not allowed as a claim after such filing in any
proceeding under such bankruptcy law), whether outstanding on the date of this
Indenture or thereafter created, incurred, assumed, guaranteed or in effect
guaranteed by the Company (including all deferrals, renewals, extensions or
refundings of, or amendments, modifications or supplements to the foregoing);
provided, however, that Senior Debt does not include (v) Indebtedness evidenced
by the Convertible Subordinated Notes, (w) any liability for federal, state,
local or other taxes owed or owing by the Company, (x) Indebtedness of the
Company to any Subsidiary of the Company except to the extent such Indebtedness
is of a type described in clause (ii) of the definition of Indebtedness, (y)
trade payables of the Company for goods, services or materials purchased in the
ordinary course of business (other than, to the extent they may otherwise
constitute trade payables, any obligations of the type described in clause (ii)
of the definition of Indebtedness), and (z) any particular Indebtedness in which
the instrument creating or evidencing the same expressly provides that such
Indebtedness shall not be senior in right of payment to, or is pari passu with,
or is subordinated or junior to, the Convertible Subordinated Notes.
"Shelf Registration Statement " shall have the meaning set forth in the
Registration Agreement.
A "subsidiary" means, with respect to any person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of capital stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
person or one or more of the other subsidiaries of that person (or a combination
thereof) and (ii) any partnership (a) the sole general partner or managing
general partner of which is such person or a Subsidiary of such person or (b)
the only general partners of which are such person or of one or more
Subsidiaries of such person (or any combination thereof).
"Termination of Trading" will be deemed to have occurred if the Common
Stock (or other common stock into which the Convertible Subordinated Notes are
then convertible) is neither listed for trading on a United States national
securities exchange nor approved for trading on an established automated
over-the-counter trading market in the United States.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of execution of this Indenture, except as
provided in Sections 9.03 and 12.06.
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"Trustee" means the party named as such above until a successor replaces it in
accordance with the applicable provisions of this Indenture and thereafter means
the successor.
"Trust Officer" means an officer in the Corporate Trust Office of the
Trustee.
"U.S. Government Obligations" means direct obligation of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged. In order to have money available on a
payment date to pay principal or interest on the Convertible Subordinated Notes,
the U.S. Government Obligations shall be payable as to principal or interest on
or before such payment date in such amounts as will provide the necessary money.
U.S. Government Obligations shall not be callable at the issuer's option.
"Voting Stock" of a corporation means all classes of Capital Stock of
such corporation then outstanding and normally entitled to vote in the election
of directors.
SECTION 1.02 Other Definitions.
Defined in
Section
"Bankruptcy Law"......................................................................................... 6.01
"business day"........................................................................................... 10.07
"Current Market Price"................................................................................... 12.05
"closing price".......................................................................................... 12.05
"Conversion Agent"....................................................................................... 2.03
"Custodian".............................................................................................. 6.01
"Definitive Securities".................................................................................. 2.01
"Designated Event Date".................................................................................. 4.06
"Designated Event Offer"................................................................................. 4.06
"Designated Event Offer Termination Date"................................................................ 4.06
"Designated Event Payment"............................................................................... 4.06
"Designated Event Payment Date".......................................................................... 4.06
"Event of Default"....................................................................................... 6.01
"Expiration Time"........................................................................................ 12.05
"fair market value"...................................................................................... 12.05
"Legal Holiday".......................................................................................... 10.07
"New Rights Plan......................................................................................... 12.05
"non-electing share"..................................................................................... 12.06
"Paying Agent"........................................................................................... 2.03
"Payment Blockage Notice"................................................................................ 10.04
"Purchased Shares"....................................................................................... 12.05
"Record Date"............................................................................................ 12.05
"Registrar".............................................................................................. 2.03
"Related Transactions Offer"............................................................................. 4.09
"Related Transactions Offer Termination Date"............................................................ 4.09
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"Related Transactions Payment"........................................................................... 4.09
"Related Transactions Payment Date"...................................................................... 4.09
"Securities"............................................................................................. 12.05
"trading day"............................................................................................ 12.05
"Trigger Event".......................................................................................... 12.05
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
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 Commission;
"indenture securities" means the Convertible Subordinated
Notes;
"indenture security holder" means a holder of a Convertible
Subordinated Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the Convertible Subordinated Notes means the
Company or any other obligor on the Convertible Subordinated
Notes.
All other terms in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise 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 GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) the male, female and neuter genders include one another.
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ARTICLE 2
THE CONVERTIBLE SUBORDINATED NOTES
SECTION 2.01 Form and Dating.
(a) GLOBAL SECURITIES. The Convertible Subordinated Notes are
being offered and sold by the Company pursuant to a Purchase Agreement relating
to the Convertible Subordinated Notes, dated March 16, 2000, among the Company
and the Initial Purchasers (the "Purchase Agreement").
Convertible Subordinated Notes offered and sold (i) in reliance on
Regulation S under the Securities Act ("Regulation S") or (ii) to "qualified
institutional buyers" as defined in Rule 144A ("QIBs") in reliance on Rule 144A
under the Securities Act ("Rule 144A"), each as provided in the Purchase
Agreement, shall be issued in the form of one or more permanent global
securities in definitive, fully registered form without interest coupons with
the Global Securities Legend and Restricted Securities Legend set forth in
Exhibit A hereto (each, a "Global Security"). Any Global Security shall be
deposited on behalf of the purchasers of the Convertible Subordinated Notes
represented thereby with the Trustee, at its New York office, as custodian for
the Depositary, and registered in the name of the Depositary or a nominee of the
Depositary for the accounts of participants in the Depositary (and, in the case
of Convertible Subordinated Notes held in accordance with Regulation S,
registered with the Depositary for the accounts of designated agents holding on
behalf of the Euroclear System ("Euroclear") or Clearstream Banking, societe
anonyme ("Clearstream")), duly executed by the Company and authenticated by the
Trustee as hereinafter provided. The aggregate principal amount of a Global
Security may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary or its nominee as hereinafter
provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.01(b) shall apply only to a
Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(b) and the written order of the Company, authenticate and
deliver initially one or more Global Securities that (i) shall be registered in
the name of Cede & Co. or other nominee of such Depositary and (ii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instructions or held by the Trustee as custodian for the Depositary pursuant to
a FAST Balance Certificate Agreement between the Depositary and the Trustee.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or by the Trustee as the custodian of the
Depositary or under such Global Security, and the Depositary may be treated by
the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of 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
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giving effect to any written certification, proxy or other authorization
furnished by the Depositary or impair, as between the Depositary and its Agent
Members, the operation of customary practices of such Depositary governing the
exercise of the rights of a holder of a beneficial interest in any Global
Security.
The provisions of the "Operating Procedures of the Euroclear System"
and "Terms and Conditions Governing Use of Euroclear" and the "Management
Regulations and Instructions to Participants" of Cedel shall be applicable to
interests in any Global Securities that are held by participants through
Euroclear or Cedel. The Trustee shall have no obligation to notify holders of
any such procedures or to monitor or enforce compliance with the same.
(c) DEFINITIVE SECURITIES. Except as provided in Section 2.06 and
2.10, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of certificated Convertible Subordinated Notes in
definitive form. Purchasers of Securities who are not QIBs and did not purchase
Convertible Subordinated Notes sold in reliance on Regulation S under the
Securities Act (referred to herein as the "Non-Global Purchasers") will receive
certificated Convertible Subordinated Notes in definitive form bearing the
Restricted Securities Legend set forth in Exhibit A hereto ("Definitive
Securities"). Definitive Securities will bear the Restricted Securities Legend
set forth on Exhibit A unless removed in accordance with Section 2.06(b).
SECTION 2.02 Execution and Authentication.
One Officer shall sign the Convertible Subordinated Notes for the
Company by manual or facsimile signature. The Company's seal shall be reproduced
on the Convertible Subordinated Notes.
If an Officer whose signature is on a Convertible Subordinated Note no
longer holds that office at the time the Convertible Subordinated Note is
authenticated, the Convertible Subordinated Note shall nevertheless be valid.
A Convertible Subordinated Note shall not be valid until authenticated
by the manual signature of the Trustee. The signature shall be conclusive
evidence that the Convertible Subordinated Note has been authenticated under
this Indenture.
Upon a written order of the Company signed by an Officer of the
Company, the Trustee shall authenticate Convertible Subordinated Notes for
original issue up to an aggregate principal amount of $225,000,000 (plus up to
$33,750,000 aggregate principal amount of Convertible Subordinated Notes that
may be sold by the Company pursuant to the over-allotment option granted
pursuant to the Purchase Agreement). Purchasers. The aggregate principal amount
of Convertible Subordinated Notes outstanding at any time may not exceed that
amount except as provided in Section 2.07.
The Convertible Subordinated Notes shall be issuable only in registered
form without coupons and only in denominations of $1,000 or any integral
multiple thereof.
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The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Convertible Subordinated Notes. An authenticating agent
may authenticate Convertible Subordinated Notes whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same right as an
Agent to deal with the Company or an Affiliate of the Company.
SECTION 2.03 The Trustee Registrar, Paying Agent and Conversion Agent.
The Company shall maintain or cause to be maintained in such locations
as it shall determine, which may be the Corporate Trust Office, an office or
agency: (i) where securities may be presented for registration of transfer or
for exchange ("Registrar"); (ii) where Convertible Subordinated Notes may be
presented for payment ("Paying Agent"); (iii) an office or agency where
Convertible Subordinated Notes may be presented for conversion (the "Conversion
Agent"); and (iv) where notices and demands to or upon the Company in respect of
Convertible Subordinated Notes and this Indenture may be served by the holders
of the Convertible Subordinated Notes. The Registrar shall keep a Register
("Register") of the Convertible Subordinated Notes and of their transfer and
exchange. The Company may appoint 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 and the term "Conversion
Agent" includes any additional Conversion Agent. The Company may change any
Paying Agent, Registrar, Conversion Agent or co-registrar without prior notice.
The Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture and shall enter into an appropriate agency agreement
with any Registrar, Paying Agent, Conversion Agent or co-registrar not a party
to this Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company or any of its subsidiaries may
act as Paying Agent, Registrar, Conversion Agent or co-registrar, except that
for purposes of Articles 3 and 8 and Section 4.06, neither the Company nor any
of its subsidiaries shall act as Paying Agent. If the Company fails to appoint
or maintain another entity as Registrar, or Paying Agent or Conversion Agent,
the Trustee shall act as such, and the Trustee shall initially act as such.
SECTION 2.04 Paying Agent To Hold Money in Trust.
The Company shall require each Paying Agent (other than the Trustee,
who hereby so agrees), to agree in writing that the Paying Agent will hold in
trust for the benefit of holders of the Convertible Subordinated Notes or the
Trustee all money held by the Paying Agent for the payment of principal or
interest (including Liquidated Damages) on the Convertible Subordinated Notes,
and will notify the Trustee of any default by the Company in respect of making
any such payment. While any such default continues, the Trustee may require a
Paying Agent to pay all money held by it to the Trustee. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee. Upon
payment over to the Trustee, the Paying Agent (if other than the Company or a
subsidiary of the Company) shall have no further liability for the money. If the
Company or a subsidiary of the Company acts as Paying Agent, it shall segregate
and hold in a separate trust fund for the benefit of the holders of the
Convertible Subordinated Notes all money held by it as Paying Agent.
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SECTION 2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
holders of Convertible Subordinated Notes and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven business days before each Interest Payment Date,
and as the Trustee may request in writing within fifteen (15) days after receipt
by the Company of any such request (or such lesser time as the Trustee may
reasonably request in order to enable it to timely provide any notice to be
provided by it hereunder), a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of holders of
Convertible Subordinated Notes.
SECTION 2.06 Transfer and Exchange.
When Convertible Subordinated Notes are presented to the Registrar or a
co-registrar with a request to register a transfer or to exchange them for an
equal principal amount of Convertible Subordinated Notes for other
denominations, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Convertible Subordinated Notes at the Registrar's request, bearing
registration numbers not contemporaneously outstanding. No service charge shall
be made to a holder for any registration of transfer or exchange (except as
otherwise expressly permitted herein), but the Company may require payment of a
sum sufficient to cover any transfer tax or other governmental charge payable
upon exchanges pursuant to Sections 2.10, 3.07, 9.05 or 12.02.
The Company or the Registrar shall not be required (i) to issue,
register the transfer of or exchange Convertible Subordinated Notes during a
period beginning at the opening of business fifteen (15) days before the day of
any selection of Convertible Subordinated Notes for redemption under Section
3.03 and ending at the close of business on the day of selection, (ii) to
register the transfer or exchange of any Convertible Subordinated Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Convertible Subordinated Note being redeemed in part or (iii) to register
the transfer of any Convertible Subordinated Notes surrendered for repurchase
pursuant to Section 4.06 or Section 4.09.
All Convertible Subordinated Notes issued upon any transfer or exchange
of Convertible Subordinated Notes in accordance with this Indenture shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture as the Convertible Subordinated Notes
surrendered upon such registration of transfer or exchange.
(a) 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, or of any
beneficial interest therein, shall only be made in accordance with Sections
2.01(b) and 2.10 and this Section 2.06(a); provided, however, that beneficial
interests in a Global Security may be transferred to persons who take delivery
thereof in the form of a beneficial interest in the Global Security in
accordance with the transfer restrictions set forth under the heading "Notice to
Investors" in the Offering Memorandum and, if applicable, in the Restricted
Securities Legend.
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Except for transfers or exchanges made in accordance with paragraphs
(i) through (iv) of this Section 2.06(a) and Section 2.10, transfers of a Global
Security shall be limited to transfers of such Global Security in whole, but not
in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(i) GLOBAL SECURITY TO DEFINITIVE SECURITY. If an owner of a
beneficial interest in a Global Security deposited with the Depositary or with
the Trustee as custodian for the Depositary wishes at any time to transfer its
interest in such Global Security to a Person who is required to take delivery
thereof in the form of a Definitive Security, such owner may, subject to the
rules and procedures of Euroclear or Clearstream, if applicable, and the
Depositary, cause the exchange of such interest for one or more Definitive
Securities of any authorized denomination or denominations and of the same
aggregate principal amount. Upon receipt by the Registrar of (1) instructions
from Euroclear or Clearstream, if applicable, and the Depositary directing the
Trustee to authenticate and deliver one or more Definitive Securities of the
same aggregate principal amount as the beneficial interest in the Global
Security to be exchanged, such instructions to contain the name or names of the
designated transferee or transferees, the authorized denomination or
denominations of the Definitive Securities to be so issued and appropriate
delivery instructions, (2) a certificate substantially in the form of Exhibit B
attached hereto given by the owner of such beneficial interest, (3) a
certificate substantially in the form of Exhibit C attached hereto given by the
person acquiring the Definitive Securities for which such interest is being
exchanged, to the effect set forth therein, and (4) such other certifications or
other information and, in the case of transfers pursuant to Rule 144 under the
Securities Act, legal opinions as the Company may reasonably require to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act,
then Euroclear or Clearstream, if applicable, or the Registrar, as the case may
be, will instruct the Depositary to reduce or cause to be reduced such Global
Security by the aggregate principal amount of the beneficial interest therein to
be exchanged and to debit or cause to be debited from the account of the Person
making such transfer the beneficial interest in the Global Security that is
being transferred, and concurrently with such reduction and debit the Company
shall execute, and the Trustee shall authenticate and deliver, one or more
Definitive Securities of the same aggregate principal amount in accordance with
the instructions referred to above.
(ii) DEFINITIVE SECURITY TO DEFINITIVE SECURITY. If a holder of a
Definitive Security wishes at any time to transfer such Definitive Security (or
portion thereof) to a Person who is required to take delivery thereof in the
form of a Definitive Security, such holder may, subject to the restrictions on
transfer set forth herein and in such Definitive Security, cause the transfer of
such Definitive Security (or any portion thereof in a principal amount equal to
an authorized denomination) to such transferee. Upon receipt by the Registrar of
(1) such Definitive Security, duly endorsed as provided herein, (2) instructions
from such holder directing the Trustee to authenticate and deliver one or more
Definitive Securities of the same aggregate principal amount as the Definitive
Security (or portion thereof) to be transferred, such instructions to contain
the name or names of the designated transferee or transferees, the authorized
denomination or denominations of the Definitive Securities to be so issued and
appropriate delivery instructions, (3) a certificate from the holder of the
Definitive Security to be transferred in substantially the form of Exhibit B
attached
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hereto, (4) a certificate substantially in the form of Exhibit C attached hereto
given by the person acquiring the Definitive Securities (or portion thereof), to
the effect set forth therein, and (5) such other certifications or other
information and, in the case of transfers pursuant to Rule 144 under the
Securities Act, legal opinions as the Company may reasonably require to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act,
then the Registrar, shall cancel or cause to be canceled such Definitive
Security and concurrently therewith, the Company shall execute, and the Trustee
shall authenticate and deliver, one or more Definitive Securities in the
appropriate aggregate principal amount, in accordance with the instructions
referred to above and, if only a portion of a Definitive Security is transferred
as aforesaid, concurrently therewith Company shall execute and the Trustee shall
authenticate and deliver to the transferor a Definitive Security in a principal
amount equal to the principal amount which has not been transferred. A holder of
a Definitive Security may at any time exchange such Definitive Security for one
or more Definitive Securities of other authorized denominations and in the same
aggregate principal amount and registered in the same name by delivering such
Definitive Security, duly endorsed as provided herein, to the Trustee together
with instructions directing the Trustee to authenticate and deliver one or more
Definitive Securities in the same aggregate principal amount and registered in
the same name as the Definitive Security to be exchanged, and the Registrar
thereupon shall cancel or caused to be canceled such Definitive Security and
concurrently therewith the Company shall execute and Trustee shall authenticate
and deliver, one or more Definitive Securities in the same aggregate principal
amount and registered in the same name as the Definitive Security being
exchanged.
(iii) DEFINITIVE SECURITY TO GLOBAL SECURITY. If a holder of a
Definitive Security wishes at any time to transfer such Definitive Security (or
portion thereof) to a Person who is not required to take delivery thereof in the
form of a Definitive Security, such holder shall, subject to the restrictions on
transfer set forth herein and in such Definitive Security and the rules of the
Depositary and Euroclear and Clearstream, as applicable, cause the exchange of
such Definitive Security for a beneficial interest in the Global Security. Upon
receipt by the Registrar of (1) such Definitive Security, duly endorsed as
provided herein, (2) instructions from such holder directing the Trustee to
increase the aggregate principal amount of the Global Security deposited with
the Depository or with the Trustee as custodian for the Depository by the same
aggregate principal amount at maturity as the Definitive Security to be
exchanged, such instructions to contain the name or names of a member of, or
participant in, the Depository that is designated as the transferee, the account
of such member or participant and other appropriate delivery instructions, (3)
the assignment form on the back of the Definitive Security completed in full
(certifying in effect that such transfer complies with Rule 144A or Regulation S
under the Securities Act or is otherwise being made to a Person who is not
required to take delivery of the Convertible Subordinated Notes in the form of a
Definitive Security) and (4) such other certifications or other information and,
in the case of transfers pursuant to Rule 144 under the Securities Act, legal
opinions as the Company may reasonably require to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act, then the Trustee shall
cancel or cause to be canceled such Definitive Security and concurrently
therewith shall increase the aggregate principal amount of the Global Security
by the same aggregate principal amount as the Definitive Security canceled.
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(iv) OTHER EXCHANGES. In the event that a Global Security is exchanged
for Convertible Subordinated Notes in definitive registered form pursuant to
Section 2.10 prior to the effectiveness of a Shelf Registration Statement with
respect to such Convertible Subordinated Notes, such Convertible Subordinated
Notes may be exchanged only in accordance with such procedures as are
substantially consistent with the provisions of clauses (ii) and (iii) above
(including the certification requirements intended to ensure that such transfers
comply with Rule 144A or Regulation S under the Securities Act, as the case may
be) and such other procedures as may from time to time be adopted by the
Company.
(b) Except in connection with a Shelf Registration Statement
contemplated by and in accordance with the terms of the Registration Agreement,
if Convertible Subordinated Notes are issued upon the registration of transfer,
exchange or replacement of Convertible Subordinated Notes bearing a Restricted
Securities Legend, or if a request is made to remove such a Restrictive
Securities Legend on Convertible Subordinated Notes, the Convertible
Subordinated Notes so issued shall bear the Restricted Securities Legend, or a
Restricted Securities Legend shall not be removed, as the case may be, unless
there is delivered to the Company such satisfactory evidence, which, in the case
of a transfer made pursuant to Rule 144 under the Securities Act, may include an
opinion of counsel given in accordance with the laws in the State of New York,
as may be reasonably required by the Company, that 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, Rule 144 or Regulation S under
the Securities Act or that such Convertible Subordinated Notes are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon
provision to the Company of such satisfactory evidence, the Trustee, at the
written direction of the Company, shall authenticate and deliver Convertible
Subordinated Notes that do not bear the legend. The Company shall not otherwise
be entitled to require the delivery of a legal opinion in connection with any
transfer or exchange of Securities.
(c) Neither the Trustee nor any Agent shall have any
responsibility for any actions taken or not taken by the Depositary.
(d) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Convertible Subordinated Notes (including any transfers between
or among Depositary's participants or beneficial owners of interests in any
Global Security) other than to require delivery of such certificates and other
documentation as is expressly required by, and to do so if and when expressly
required by, the terms of this Indenture and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 2.07 Replacement Convertible Subordinated Notes.
If the holder of a Convertible Subordinated Note claims that the
Convertible Subordinated Note has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Convertible
Subordinated Note if the Trustee's requirements are met. If required by the
Trustee or the Company as a condition of receiving a replacement Convertible
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Subordinated Note, the holder of a Convertible Subordinated Note must provide a
certificate of loss and an indemnity and/or an indemnity bond sufficient, in the
judgment of both the Company and the Trustee, to fully protect the Company, the
Trustee, any Agent and any authenticating agent from any loss, liability, cost
or expense which any of them may suffer or incur if the Convertible Subordinated
Note is replaced. The Company and the Trustee may charge the relevant holder for
their expenses in replacing any Convertible Subordinated Note.
The Trustee or any authenticating agent may authenticate any such
substituted Convertible Subordinated Note, and deliver the same upon the receipt
of such security or indemnity as the Trustee, the Company and, if applicable,
such authenticating agent may require. Upon the issuance of any substituted
Convertible Subordinated Note, 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 connected therewith. In case any
Convertible Subordinated Note which has matured or is about to mature, or has
been called for redemption pursuant to Article 3, submitted for repurchase
pursuant to Section 4.06 or Section 4.09 or is about to be converted into Common
Stock pursuant to Article 12, shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Convertible
Subordinated Note, pay or authorize the payment of or convert or authorize the
conversion of the same (without surrender thereof except in the case of a
mutilated Convertible Subordinated Note), as the case may be, if the applicant
for such payment or conversion shall furnish to the Company, to the Trustee and,
if applicable, to the authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or connected with such substitution, and, in case of
destruction, loss or theft, evidence satisfactory to the Company, the Trustee
and, if applicable, any paying agent or conversion agent of the destruction,
loss or theft of such Convertible Subordinated Note and of the ownership
thereof.
Every replacement Convertible Subordinated Note is an additional
obligation of the Company and shall be entitled to all the benefits provided
under this Indenture equally and proportionately with all other Convertible
Subordinated Notes duly issued, authenticated and delivered hereunder.
SECTION 2.08 Outstanding Convertible Subordinated Notes.
The Convertible Subordinated Notes outstanding at any time are all the
Convertible Subordinated Notes properly authenticated by the Trustee except for
those canceled by the Trustee, those delivered to it for cancellation, and those
described in this Section as not outstanding.
If a Convertible Subordinated Note is replaced pursuant to Section
2.07, it ceases to be outstanding unless the Trustee receives proof satisfactory
to it that the replaced Convertible Subordinated Note is held by a bona fide
purchaser.
If Convertible Subordinated Notes are considered paid under Section
4.01 or converted under Article 12, they cease to be outstanding and interest
(and Liquidated Damages, if any) on them ceases to accrue.
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Subject to Section 2.09 hereof, a Convertible Subordinated Note does
not cease to be outstanding because the Company or an Affiliate of the Company
holds the Convertible Subordinated Note.
SECTION 2.09 When Treasury Convertible Subordinated Notes Disregarded.
In determining whether the holders of the required principal amount of
Convertible Subordinated Notes have concurred in any direction, waiver or
consent, Convertible Subordinated Notes owned by the Company or an Affiliate of
the Company shall be considered as though they are not outstanding except that
for the purposes of determining whether the Trustee shall be protected in
relying on any such direction, waiver or consent, only Convertible Subordinated
Notes which the Trustee knows are so owned shall be so disregarded.
SECTION 2.10 Temporary Convertible Subordinated Notes.
(a) Until definitive Convertible Subordinated Notes are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Convertible Subordinated Notes. Temporary Convertible Subordinated Notes shall
be substantially in the form of definitive Convertible Subordinated Notes but
may have variations that the Company considers appropriate for temporary
Convertible Subordinated Notes and shall be reasonably acceptable to the
Trustee. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Convertible Subordinated Notes in exchange for
temporary Convertible Subordinated Notes.
(b) Except for transfers made in accordance with Section 2.06(a),
a Global Security deposited with the Depositary or with the Trustee as custodian
for the Depositary pursuant to Section 2.01 shall be transferred to the
beneficial owners thereof in the form of certificated Convertible Subordinated
Notes in definitive form only if such transfer complies with Section 2.06 and
(i) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Global Security or if at any time such
Depositary ceases to be a "clearing agency" registered under the Exchange Act
and a successor Depositary is not appointed by the Company within 90 days of
such notice, or (ii) an Event of Default has occurred and is continuing.
(c) Any Global Security or interest thereon that is transferable
to the beneficial owners thereof in the form of certificated Convertible
Subordinated Notes in definitive form shall, if held by the Depository, be
surrendered by the Depositary to the Trustee, without charge, and the Trustee
shall authenticate and deliver, upon such transfer of each portion of such
Global Security, an equal aggregate principal amount of Convertible Subordinated
Notes of authorized denominations in the form of certificated Convertible
Subordinated Notes in definitive form. Any portion of a Global Security
transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any Convertible
Subordinated Notes in the form of certificated Convertible Subordinated Notes in
definitive form delivered in exchange for an interest in the Global Security
shall, except as otherwise provided by Section 2.06(b), bear the Restricted
Securities Legend set forth in Exhibit A hereto.
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(d) Prior to any transfer pursuant to Section 2.10(b), the
registered holder of a Global Security may grant proxies and otherwise authorize
any Person, including Agent Members 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 Convertible Subordinated Notes.
(e) The Company will make available to the Trustee a reasonable
supply of certificated Convertible Subordinated Notes in definitive form without
interest coupons.
SECTION 2.11 Cancellation.
The Company at any time may deliver Convertible Subordinated Notes to
the Trustee for cancellation. The Registrar and Paying Agent shall forward to
the Trustee any Convertible Subordinated Notes surrendered to them for
registration of transfer, exchange or payment. The Trustee and no one else may
cancel Convertible Subordinated Notes surrendered for registration of transfer,
exchange, payment, replacement, conversion, redemption, repurchase or
cancellation. Upon written instructions of the Company, the Trustee shall
destroy and dispose of canceled Convertible Subordinated Notes as the Company
directs and, after such destruction, shall deliver a certificate of destruction
to the Company. The Company may not issue new Convertible Subordinated Notes to
replace Convertible Subordinated Notes that it has paid, redeemed or repurchased
or that have been delivered to the Trustee for cancellation or that any holder
has (i) converted pursuant to Article 12 hereof, (ii) submitted for redemption
pursuant to Article 3 hereof or (iii) submitted for repurchase pursuant to
Section 4.06 hereof (unless revoked).
SECTION 2.12 Defaulted Interest.
If the Company fails to make a payment of interest on the Convertible
Subordinated Notes, it shall pay such defaulted interest plus, to the extent
lawful, any interest payable on the defaulted interest. It may pay such
defaulted interest, plus any such interest payable on it, to the persons who are
holders of Convertible Subordinated Notes on a subsequent special record date.
The Company shall fix any such record date and payment date. At least 15 days
before any such record date, the Company shall mail to holders of the
Convertible Subordinated Notes a notice that states the record date, payment
date and amount of such interest to be paid.
SECTION 2.13 CUSIP Number.
The Company in issuing the Convertible Subordinated Notes may use a
"CUSIP" number, and if so, such CUSIP number shall be included in notices of
redemption, repurchase or exchange as a convenience to holders of Convertible
Subordinated Notes; provided, however, that any such notice may state that no
representation is made as to the correctness or accuracy of the CUSIP number
printed in the notice or on the Convertible Subordinated Notes and that reliance
may be placed only on the other identification numbers printed on the
Convertible Subordinated Notes. The Company will promptly notify the Trustee of
any change in the CUSIP number.
SECTION 2.14 Regulation S.
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The Company agrees that it will refuse to register any transfer of
Convertible Subordinated Notes or any shares of Common Stock issued upon
conversion of Convertible Subordinated Notes that is not made in accordance with
the provisions of Regulation S under the Securities Act, pursuant to a
registration statement which has been declared effective under the Securities
Act or pursuant to an available exemption from the registration requirements of
the Securities Act; provided that the provisions of this paragraph shall not be
applicable to any Convertible Subordinated Notes which do not bear a Restricted
Securities Legend or to any shares of Common Stock evidenced by certificates
which do not bear a Restricted Common Stock Legend.
ARTICLE 3
REDEMPTION
SECTION 3.01 Optional and Provisional Redemption.
The Company may redeem all or any portion of the Convertible
Subordinated Notes upon the terms and at the redemption prices set forth in each
of the Convertible Subordinated Notes. Any redemption shall be made pursuant to
Paragraph 5 of the Convertible Subordinated Notes and this Article 3.
SECTION 3.02 Notices to Trustee.
If the Company elects to redeem Convertible Subordinated Notes pursuant
to the optional redemption provisions of paragraph 5 of the Convertible
Subordinated Notes, it shall furnish to the Trustee, at least 15 (20 if less
than all of the then outstanding Convertible Subordinated Notes are to be
redeemed or if the Company requests the Trustee to give notice of redemption
pursuant to Section 3.04 and 30 in the case of a Provisional Redemption (as
defined in Paragraph 5 of the Convertible Subordinated Notes)) days but not more
than 60 days before a redemption date (unless a shorter period shall be
satisfactory to the Trustee), an Officers' Certificate setting forth (i) the
Section of this Indenture pursuant to which the redemption shall occur, (ii) the
redemption date, (iii) the principal amount of Convertible Subordinated Notes
(if less than all) to be redeemed, (iv) the redemption price and (v) the CUSIP
number of the Convertible Subordinated Notes being redeemed.
SECTION 3.03 Selection of Convertible Subordinated Notes To Be Redeemed.
If less than all the Convertible Subordinated Notes are to be redeemed,
the Trustee shall select the Convertible Subordinated Notes to be redeemed by a
method that complies with the requirements of the principal national securities
exchange, if any, on which the Convertible Subordinated Notes are listed or
quoted or, if the Convertible Subordinated Notes are not so listed, on a pro
rata basis by lot or by any other method that the Trustee considers fair and
appropriate. The Trustee shall make the selection not more than 60 days and not
less than 15 days before the redemption date from Convertible Subordinated Notes
outstanding and not previously called for redemption. The Trustee may select for
redemption a portion of the principal of any Convertible
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Subordinated Notes that has a denomination larger than $1,000. Convertible
Subordinated Notes and portions thereof will be redeemed in the amount of $1,000
or integral multiples of $1,000.
Provisions of this Indenture that apply to Convertible Subordinated
Notes called for redemption also apply to portions of Convertible Subordinated
Notes called for redemption. The Trustee shall notify the Company promptly of
the Convertible Subordinated Notes or portions of Convertible Subordinated Notes
to be called for redemption.
If any Convertible Subordinated Note selected for partial redemption is
converted in part after such selection, the converted portion of such
Convertible Subordinated Note shall be deemed (so far as may be) to be the
portion to be selected for redemption. The Convertible Subordinated Notes (or
portion thereof) so selected shall be deemed duly selected for redemption for
all purposes hereof, notwithstanding that any such Convertible Subordinated Note
is converted in whole or in part before the mailing of the notice of redemption.
Upon any redemption of less than all the Convertible Subordinated Notes, the
Company and the Trustee may treat as outstanding any Convertible Subordinated
Notes surrendered for conversion during the period of 15 days next preceding the
mailing of a notice of redemption and need not treat as outstanding any
Convertible Subordinated Note authenticated and delivered during such period in
exchange for the unconverted portion of any Convertible Subordinated Note
converted in part during such period.
SECTION 3.04 Notice of Redemption.
At least 15 (30 in the case of a Provisional Redemption) days but not
more than 60 days before a redemption date, the Company shall mail by first
class mail a notice of redemption to each holder whose Convertible Subordinated
Notes are to be redeemed.
The notice shall identify the Convertible Subordinated Notes to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) if any Convertible Subordinated Note is being redeemed in
part, the portion of the principal amount of such Convertible Subordinated Note
to be redeemed and that, after the redemption date, upon surrender of such
Convertible Subordinated Note, a new Convertible Subordinated Note or
Convertible Subordinated Notes in principal amount equal to the unredeemed
portion will be issued in the name of the holder thereof;
(4) that Convertible Subordinated Notes called for redemption
must be surrendered to the Paying Agent to collect the redemption price;
(5) that interest and Liquidated Damages, if applicable, on
Convertible Subordinated Notes called for redemption and for which funds have
been set apart for payment, ceases to accrue on and after the redemption date
(unless the Company defaults in the payment of
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the redemption price or the Paying Agent is prohibited from making such payment
pursuant to the terms of this Indenture);
(6) the paragraph of the Convertible Subordinated Notes
pursuant to which the Convertible Subordinated Notes called for redemption are
being redeemed;
(7) the aggregate principal amount of Convertible Subordinated
Notes (if less than all) that are being redeemed;
(8) the CUSIP number of the Convertible Subordinated Notes
(provided that the disclaimer permitted by Section 2.13 may be made);
(9) the name and address of the Paying Agent;
(10) that Convertible Subordinated Notes called for redemption
may be converted at any time prior to the close of business on the last trading
day immediately preceding the redemption date and if not converted prior to the
close of business on such date, the right of conversion will be lost; and
(11) that in the case of Convertible Subordinated Notes or
portions thereof called for redemption on a date that is also an Interest
Payment Date, the interest payment and Liquidated Damages, if any, due on such
date shall be paid to the person in whose name the Convertible Subordinated Note
is registered at the close of business on the relevant Regular Record Date.
The notice if mailed in the manner herein provided shall be
conclusively presumed to have been given, whether or not the holder receives
such notice. In any case, failure to give such notice my mail or any defect in
the notice to the holder of any Convertible Subordinated Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any Convertible Subordinated Note.
At the Company's request, the Trustee shall give notice of redemption
in the Company's name and at its expense.
SECTION 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, Convertible Subordinated Notes
called for redemption become due and payable on the redemption date at the
redemption price set forth in the Convertible Subordinated Note.
SECTION 3.06 Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Trustee or with the Paying Agent money in immediately available funds sufficient
to pay the redemption price of and accrued interest (including Liquidated
Damages) on all Convertible Subordinated Notes to be
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redeemed on that date. The Trustee or the Paying Agent shall return to the
Company any money not required for that purpose.
On and after the redemption date, unless the Company shall default in
the payment of the redemption price, interest and Liquidated Damages, if
applicable, will cease to accrue on the principal amount of the Convertible
Subordinated Notes or portions thereof called for redemption and for which funds
have been set apart for payment and such Convertible Subordinated Notes, or
portions thereof, shall cease after the close of business on the business day
immediately preceding the redemption date to be convertible into Common Stock
and, except as provided in this Section 3.06 and 8.4, to be entitled to any
benefit or security under this Indenture, and the holders thereof shall have no
right in respect of such Convertible Subordinated Notes, or portions thereof,
except the right to receive the Redemption price thereof and unpaid interest and
Liquidated Damages, if any, to (but excluding) the redemption date. In the case
of Convertible Subordinated Notes or portions thereof redeemed on a redemption
date which is also an Interest Payment Date, the interest payment and Liquidated
Damages, if any, due on such date shall be paid to the person in whose name the
Convertible Subordinated Note is registered at the close of business on the
relevant Regular Record Date.
SECTION 3.07 Convertible Subordinated Notes Redeemed in Part.
Upon surrender of a Convertible Subordinated Note that is redeemed in
part only, the Company shall issue and the Trustee shall authenticate and
deliver to the holder of a Convertible Subordinated Note a new Convertible
Subordinated Note equal in principal amount to the unredeemed portion of the
Convertible Subordinated Note surrendered, at the expense of the Company, except
as specified in Section 2.06.
SECTION 3.08 Conversion Arrangement on Call for Redemption.
In connection with any redemption of Convertible Subordinated Notes,
the Company may arrange for the purchase and conversion of any Convertible
Subordinated Notes by an arrangement with one or more investment bankers or
other purchasers to purchase such Convertible Subordinated Notes by paying to
the Trustee in trust for the holders, on or before the date fixed for
redemption, an amount not less than the applicable redemption price, together
with interest and Liquidated Damages, if any, accrued to the date fixed for
redemption, of such Convertible Subordinated Notes. Notwithstanding anything to
the contrary contained in this Article 3, the obligation of the Company to pay
the redemption price of such Convertible Subordinated Notes, together with
interest and Liquidated Damages, if any, accrued to the date fixed for
redemption, shall be deemed to be satisfied and discharged to the extent such
amount is so paid by the purchasers. If such an agreement is entered into, a
copy of which will be filed with the Trustee prior to the date fixed for
redemption, any Convertible Subordinated Notes not duly surrendered for
conversion by the holders thereof may, at the option of the Company, be deemed,
to the fullest extent permitted by law, acquired by such purchasers from such
holders and (notwithstanding anything to the contrary contained in Article 12)
surrendered by such purchasers for conversion, all as of immediately prior to
the close of business on the date fixed for redemption (and the right to convert
any such Convertible Subordinated Notes shall be deemed to have been extended
through such time), subject to payment of the above amount
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as aforesaid. At the direction of the Company, the Trustee shall hold and
dispose of any such amount paid to it in the same manner as it would monies
deposited with it by the Company for the redemption of Convertible Subordinated
Notes. Without the Trustee's prior written consent, no arrangement between the
Company and such purchasers for the purchase and conversion of any Convertible
Subordinated Notes shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection with any
such arrangement for the purchase and conversion of any Convertible Subordinated
Notes between the Company and such purchasers to which the Trustee has not
consented in writing, including the costs and expenses incurred by the Trustee
in the defense of any claim or liability arising out of or in connection with
the exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Convertible Subordinated Notes.
The Company shall pay the principal of and interest (including
Liquidated Damages) on the Convertible Subordinated Notes on the dates and in
the manner provided in the Convertible Subordinated Notes. Principal, interest,
the redemption price and the Designated Event Payment and the Related
Transactions Payment shall be considered paid on the date due if the Trustee or
Paying Agent (other than the Company or a subsidiary of the Company) holds as of
10:00 a.m. New York City time on that date immediately available funds
designated for and sufficient to pay all principal, interest (including
Liquidated Damages), the redemption price and the Designated Event Payment or
the Related Transactions Payment then due, provided, however, that money held by
the Agent for the benefit of holders of Senior Debt pursuant to the provisions
of Article 11 hereof or the payment of which to the holders of the Convertible
Subordinated Notes is prohibited by Article 11 shall not be considered to be
designated for the payment of any principal of or interest on the Convertible
Subordinated Notes within the meaning of this Section 4.01.
To the extent lawful, the Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on (i)
overdue principal, at the rate borne by Convertible Subordinated Notes,
compounded semiannually; and (ii) overdue installments of interest (without
regard to any applicable grace period) at the same rate, compounded
semiannually.
SECTION 4.02 Commission Reports.
The Company shall comply with Section 314(a) of the TIA.
SECTION 4.03 Compliance Certificate.
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The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has fully performed its
obligations under this Indenture and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge, the Company
is not in default in the performance or observance of any of the terms and
conditions hereof (or, if any Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which he or she may have
knowledge) and, that to the best of his or her knowledge, no event has occurred
and remains in existence by reason of which payments on account of the principal
of or interest (including Liquidated Damages) on the Convertible Subordinated
Notes are prohibited.
The Company shall, so long as any of the Convertible Subordinated Notes
are outstanding, deliver to the Trustee, forthwith upon becoming aware of any
Default or Event of Default, an Officers' Certificate specifying such Default or
Event of Default.
SECTION 4.04 Maintenance of Office or Agency.
The Company shall maintain or cause to be maintained the office or
agency required under Section 2.03. The Company shall give prompt written notice
to the Trustee of the location, and any change in the location, of such office
or agency not maintained by the Trustee. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, presentations, surrenders, notices and demands
with respect to the Convertible Subordinated Notes may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Convertible Subordinated Notes may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designation.
SECTION 4.05 Continued Existence.
Subject to Article 5, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 4.06 Repurchase Upon Designated Event.
Following a Designated Event (the date of each such occurrence being
the "Designated Event Date"), the Company shall notify the holders of
Convertible Subordinated Notes in writing of such occurrence and shall make an
offer (the "Designated Event Offer") to repurchase all Convertible Subordinated
Notes then outstanding at a repurchase price in cash (the "Designated Event
Payment") equal to 101% of the principal amount thereof, plus accrued and unpaid
interest and Liquidated Damages, if any, to, but excluding, the Designated Event
Payment Date (as defined below).
Notice of a Designated Event shall be mailed by or at the direction of
the Company to the holders of Convertible Subordinated Notes as shown on the
Register of such holders maintained by
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the Registrar not more than 20 days after the applicable Designated Event Date
at the addresses as shown on the Register of holders maintained by the
Registrar, with a copy to the Trustee and the Paying Agent. The Designated Event
Offer shall remain open until a specified date (the "Designated Event Offer
Termination Date") which is at least 20 business days from the date such notice
is mailed. During the period specified in such notice, holders of Convertible
Subordinated Notes may elect to tender their Convertible Subordinated Notes in
whole or in part in integral multiples of $1,000 in exchange for cash. Payment
shall be made by the Company in respect of Convertible Subordinated Notes
properly tendered pursuant to this Section on a specified business day (the
"Designated Event Payment Date") which shall be no earlier than five business
days after the applicable Designated Event Offer Termination Date and no later
than 60 days after the applicable Designated Event.
The notice, which shall govern the terms of the Designated Event Offer,
shall include such disclosures as are required by law and shall state:
(a) that a Designated Event Offer is being made pursuant to this
Section 4.06 and that all Convertible Subordinated Notes will be accepted for
payment;
(b) the transaction or transactions that constitute the
Designated Event;
(c) the Designated Event Payment for each Convertible
Subordinated Note, the Designated Event Offer Termination Date and the
Designated Event Payment Date;
(d) that any Convertible Subordinated Note not accepted for
payment will continue to accrue interest and Liquidated Damages, if applicable,
in accordance with the terms thereof;
(e) that, unless the Company defaults on making the Designated
Event Payment, any Convertible Subordinated Note accepted for payment pursuant
to the Designated Event Offer shall cease to accrue interest and Liquidated
Damages, if applicable, on the Designated Event Payment Date and no further
interest or Liquidated Damages shall accrue on or after such date;
(f) that holders electing to have Convertible Subordinated Notes
repurchased pursuant to a Designated Event Offer will be required to surrender
their Convertible Subordinated Notes to the Paying Agent at the address
specified in the notice prior to 5:00 p.m., New York City time, on the
Designated Event Offer Termination Date and must complete any form letter of
transmittal proposed by the Company and acceptable to the Trustee and the Paying
Agent;
(g) that holders of Convertible Subordinated Notes will be
entitled to withdraw their election if the Paying Agent receives, not later than
5:00 p.m., New York City time, on the Designated Event Offer Termination Date, a
facsimile transmission or letter setting forth the name of the holder, the
principal amount of Convertible Subordinated Notes the holder delivered for
purchase, the Convertible Subordinated Note certificate number (if any) and a
statement that such holder is withdrawing his election to have such Convertible
Subordinated Notes purchased;
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(h) that holders whose Convertible Subordinated Notes are
repurchased only in part will be issued Convertible Subordinated Notes equal in
principal amount to the unpurchased portion of the Convertible Subordinated
Notes surrendered;
(i) the instructions that holders must follow in order to tender
their Convertible Subordinated Notes; and
(j) that in the case of a Designated Event Offer Termination Date
that is also an interest payment date, the interest payment and Liquidated
Damages, if any, due on such date shall be paid to the person in whose name the
Convertible Subordinated Note is registered at the close of business on the
relevant Designated Event Offer Termination Date.
On the Designated Event Offer Termination Date the Company shall (i)
accept for payment all Convertible Subordinated Notes or portions thereof
properly tendered pursuant to the Designated Event Offer, (ii) deposit with the
Paying Agent money sufficient to pay the Designated Event Payment with respect
to all Convertible Subordinated Notes or portions thereof so tendered and
accepted and (iii) deliver or cause to be delivered to the Trustee the
Convertible Subordinated Notes so accepted together with an Officers'
Certificate setting forth the aggregate principal amount of Convertible
Subordinated Notes or portions thereof tendered to and accepted for payment by
the Company. On the Designated Event Payment Date, the Paying Agent shall mail
or deliver to the holders of Convertible Subordinated Notes so accepted, the
Designated Event Payment, and the Trustee shall promptly authenticate and mail
or cause to be transferred by book entry to such holders a new Convertible
Subordinated Note equal in principal amount to any unpurchased portion of the
Convertible Subordinated Note surrendered, if any; provided that such new
Convertible Subordinate Notes will be in a principal amount of $1,000 or an
integral multiple thereof. Any Convertible Subordinated Notes not so accepted
shall be promptly mailed or delivered by the Company to the holder thereof.
In the case of any reclassification, change, consolidation, merger,
combination or sale or conveyance to which Section 12.06 applies, in which the
Common Stock of the Company is changed or exchanged as a result into the right
to receive stock, securities or other property or assets (including cash) which
includes shares of common stock of the Company or another person that are, or
upon issuance will be, traded on a United States national securities exchange or
approved for trading on an established automated over-the-counter trading market
in the United States and such shares constitute at the time such change or
exchange becomes effective in excess of 50% of the aggregate fair market value
of such stock, securities other property and assets (including cash) (as
determined by the Company, which determination shall be conclusive and binding),
then the person formed by such consolidation or resulting from such merger or
which acquires such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture (which shall comply with the TIA as in force at
the date of execution of such supplemental indenture) modifying the provisions
of this Indenture relating to the right of holders of Convertible Subordinated
Notes to cause the Company to repurchase Convertible Subordinated Notes
following a Designated Event, including the applicable provisions of this
Section 4.06 and the definitions of Designated Event, Change of Control and
Termination of Trading, as appropriate, as determined in good faith by the
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Company (which determination shall be conclusive and binding), to make such
provision apply to such common stock and the issuer thereof if different from
the Company and Common Stock of the Company (in lieu of the Company and the
Common Stock of the Company).
The Designated Event Offer shall be made by the Company in compliance
with all applicable provisions of the Exchange Act, and all applicable tender
offer rules promulgated thereunder, to the extent such laws and regulations are
then applicable and shall include all instructions and materials that the
Company shall reasonably deem necessary to enable such holders of Convertible
Subordinated Notes to tender their Convertible Subordinated Notes.
SECTION 4.07 Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the
office of Trustee, will appoint, in the manner provided in Section 7.08, a
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 4.08 Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter enforced, that may affect the Company's
obligation to pay the Convertible Subordinated Notes; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law insofar as such law applies to the Convertible
Subordinated Notes, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law has been enacted.
SECTION 4.09 Repurchase Upon Related Transactions Event.
If the Related Transactions are not consummated in all material
respects by August 31, 2000, or should the Related Agreement be terminated at
any time prior to such date (a "Related Transactions Event"), the Company shall
notify the holders of Convertible Subordinated Notes in writing of such
occurrence and shall make an offer (the "Related Transactions Offer") to
repurchase all Convertible Subordinated Notes then outstanding at a repurchase
price in cash (the "Related Transactions Payment") equal to 101% of the
principal amount thereof, plus accrued and unpaid interest and Liquidated
Damages, if any, to, but excluding, the Related Transactions Payment Date (as
defined below).
Notice of a Related Transactions shall be mailed by or at the direction
of the Company to the holders of Convertible Subordinated Notes as shown on the
Register of such holders maintained by the Registrar not more than 10 days after
the occurrence of the Related Transactions Event at the addresses as shown on
the Register of holders maintained by the Registrar, with a copy to the Trustee
and the Paying Agent. The Related Transactions Offer shall remain open until a
specified date (the "Related Transactions Offer Termination Date") which is at
least 30 business days from the
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date such notice is mailed. During the period specified in such notice,
beneficial holders of Convertible Subordinated Notes may elect to tender their
Convertible Subordinated Notes in whole, but not in part, in exchange for cash
(it being understood that the Depository and any direct or indirect participants
who hold interests in Convertible Subordinated Notes on behalf of beneficial
holders may tender their Convertible Subordinated Notes in part to reflect
elections to redeem in whole by some but not all of the beneficial holders of
Convertible Subordinated Notes held through such direct or indirect participant
in the Depository or the Depository). Payment shall be made by the Company in
respect of Convertible Subordinated Notes properly tendered pursuant to this
Section on a specified business day (the "Related Transactions Payment Date")
which shall be no earlier than five business days after the applicable Related
Transactions Offer Termination Date and no later than 40 days after the
applicable Related Transactions Event.
The notice, which shall govern the terms of the Related Transactions
Offer, shall include such disclosures as are required by law and shall state:
(a) that a Related Transactions Offer is being made pursuant to
this Section 4.09 and that all Convertible Subordinated Notes will be accepted
for payment;
(b) the Related Transactions Payment for each Convertible
Subordinated Note, the Related Transactions Offer Termination Date and the
Related Transactions Payment Date;
(c) that any Convertible Subordinated Note not accepted for
payment will continue to accrue interest and Liquidated Damages, if applicable,
in accordance with the terms thereof;
(d) that, unless the Company defaults on making the Related
Transactions Payment, any Convertible Subordinated Note accepted for payment
pursuant to the Related Transactions Offer shall cease to accrue interest and
Liquidated Damages, if applicable, on the Related Transactions Payment Date and
no further interest or Liquidated Damages shall accrue on or after such date;
(e) that holders electing to have Convertible Subordinated Notes
repurchased pursuant to a Related Transactions Offer will be required to
surrender their Convertible Subordinated Notes to the Paying Agent at the
address specified in the notice prior to 5:00 p.m., New York City time, on the
Related Transactions Offer Termination Date and must complete any form letter of
transmittal proposed by the Company and acceptable to the Trustee and the Paying
Agent;
(f) that holders of Convertible Subordinated Notes will be
entitled to withdraw their election if the Paying Agent receives, not later than
5:00 p.m., New York City time, on the Related Transactions Offer Termination
Date, a facsimile transmission or letter setting forth the name of the holder,
the principal amount of Convertible Subordinated Notes the holder delivered for
purchase, the Convertible Subordinated Note certificate number (if any) and a
statement that such holder is withdrawing his election to have such Convertible
Subordinated Notes purchased;
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(g) that holders may elect to tender their Convertible
Subordinated Notes in the Related Transactions Offer in whole, but not in part;
(h) the instructions that holders must follow in order to tender
their Convertible Subordinated Notes; and
(i) that in the case of a Related Transactions Offer Termination
Date that is also an interest payment date, the interest payment and Liquidated
Damages, if any, due on such date shall be paid to the person in whose name the
Convertible Subordinated Note is registered at the close of business on the
relevant Related Transactions Offer Termination Date.
On the Related Transactions Offer Termination Date the Company shall
(i) accept for payment all Convertible Subordinated Notes properly tendered
pursuant to the Related Transactions Offer, (ii) deposit with the Paying Agent
money sufficient to pay the Related Transactions Payment with respect to all
Convertible Subordinated Notes so tendered and accepted and (iii) deliver or
cause to be delivered to the Trustee the Convertible Subordinated Notes so
accepted together with an Officers' Certificate setting forth the aggregate
principal amount of Convertible Subordinated Notes tendered to and accepted for
payment by the Company. On the Related Transactions Payment Date, the Paying
Agent shall mail or deliver to the holders of Convertible Subordinated Notes so
accepted, the Related Transactions Payment. Any Convertible Subordinated Notes
not so accepted shall be promptly mailed or delivered by the Company to the
holder thereof.
In the event that, after the Related Payment Redemption Date, less than
10% of the aggregate principal amount of the Convertible Subordinated Notes
remain outstanding, the Company may, at its option, redeem the remaining
Convertible Subordinated Notes, in whole, but not in part, at a price equal to
the Related Transaction Payment, plus accrued and unpaid interest and Liquidated
Damages, if any, to the date fixed for their redemption by the Company (such
date to be a date no later than 30 days following the Related Transactions
Payment Date). The provisions of Sections 3.02, 3.04, 3.05 and 3.06 shall apply
to any such redemption.
The Related Transactions Offer shall be made by the Company in
compliance with all applicable provisions of the Exchange Act, and all
applicable tender offer rules promulgated thereunder, to the extent such laws
and regulations are then applicable and shall include all instructions and
materials that the Company shall reasonably deem necessary to enable such
holders of Convertible Subordinated Notes to tender their Convertible
Subordinated Notes.
If the Related Transactions occur on or prior to August 31, 2000, the
Company shall furnish to the Trustee an Officers' Certificate specifying the
occurrence of such event.
SECTION 4.10 Taxes.
The Company shall, and shall cause each of its subsidiaries to, pay
prior to delinquency all taxes, assessments and government levies; provided,
however, that the Company shall not be required to pay or cause to be paid any
such tax, assessment or levy (A) if the failure to do so will not, in the
aggregate, have a material adverse impact on the Company and its subsidiaries
taken as a
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whole, or (B) if the amount, applicability or validity is being contested in
good faith by appropriate proceedings.
SECTION 4.11 Cash Maintenance.
During the period from the Issue Date to and including the Put
Expiration Date, the Company shall maintain cash and cash equivalents in an
aggregate amount equal to or greater than 103% of the aggregate principal amount
of the outstanding Convertible Subordinated Notes.
ARTICLE 5
SUCCESSORS
SECTION 5.01 When the Company May Merge, Etc.
The Company may not, in a single transaction or series of related
transactions, consolidate or merge with or into (whether or not the Company is
the surviving corporation), or sell, assign, transfer, lease, convey or
otherwise dispose of all or substantially all of its properties or assets to,
any person as an entirety or substantially as an entirety unless:
(a) either
(i) the Company shall be the surviving or continuing
corporation or
(ii) the person formed by or surviving any such
consolidation or into which the Company is merged (if other than the Company) or
the person which acquires by sale, assignment, transfer, lease, conveyance or
other disposition the properties and assets of the Company substantially as an
entirety
(1) shall be a corporation organized and validly
existing under the laws of the United States or any State thereof or the
District of Columbia and
(2) shall expressly assume, by indenture in form
reasonably satisfactory to the Trustee, executed and delivered to the Trustee,
the due and punctual payment of the principal of, and premium, if any, and
interest and Liquidated Damages, if any, on all of the Convertible Subordinated
Notes and the performance of every covenant of the Convertible Subordinated
Notes and this Indenture and the Registration Agreement on the part of the
Company to be performed or observed, including, without limitation,
modifications to rights of holders to cause the repurchase of Convertible
Subordinated Notes upon a Designated Event in accordance with the penultimate
paragraph of Section 4.06 and conversion rights in accordance with Section 12.06
to the extent required by such Sections;
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(b) immediately after giving effect to such transaction no
Default and no Event of Default shall have occurred and be continuing; and
(c) the Company or such person 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 provision of this Indenture and that all conditions
precedent in this Indenture relating to such transaction have been satisfied.
For purposes of this Section 5.01, the transfer (by lease, assignment,
sale or otherwise, in a single transaction or series of transactions) of all or
substantially all of the properties or assets of one or more subsidiaries of the
Company, the capital stock of which constitutes 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.
SECTION 5.02 Successor Corporation Substituted.
Upon any such consolidation, merger, sale, assignment, conveyance,
lease, transfer or other disposition in accordance with Section 5.01, the
successor person formed by such consolidation or into which the Company is
merged or to which such assignment, conveyance, lease, transfer or other
disposition is made will 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 therein, and thereafter
(except in the case of a sale, assignment, transfer, lease, conveyance or other
disposition) the predecessor corporation will be relieved of all further
obligations and covenants under this Indenture and the Convertible Subordinated
Notes.
SECTION 5.03 Purchase Option on Change of Control.
This Article 5 does not affect the obligations of the Company
(including without limitation any successor to the Company) under Section 4.06.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
An "Event of Default" with respect to any Convertible Subordinated
Notes occurs if:
(a) the Company defaults in the payment (whether or not such
payment is prohibited by the subordination provisions set forth in Article 11 of
this Indenture) of principal of, or premium, if any, on the Convertible
Subordinated Notes when due at maturity, upon repurchase, upon acceleration or
otherwise, including, without limitation, failure of the Company to make any
optional redemption payment when required pursuant to Article 3; or
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(b) the Company defaults in the payment (whether or not such
payment is prohibited by the subordination provisions set forth in Article 11 of
this Indenture) of any installment of interest or Liquidated Damages on the
Convertible Subordinated Notes when due (including any interest or Liquidated
Damages payable in connection with a repurchase pursuant to Section 4.06 or in
connection with any optional redemption payment pursuant to Article 3) and
continuance of such default for 30 days or more; or
(c) the Company defaults (other than a default set forth in
clauses (a) and (b) above and clauses (d) and (e) below) in the performance of,
or breaches, any other covenant or warranty of the Company set forth in this
Indenture or the Convertible Subordinated Notes and fails to remedy such default
or breach within a period of 60 days after the receipt of written notice from
the Trustee or the holders of at least 25% in aggregate principal amount of the
then outstanding Convertible Subordinated Notes; or
(d) the Company defaults in the payment of the Designated Event
Payment or the Related Transactions Payment in respect of the Convertible
Subordinated Notes on the date therefor, whether or not such payment is
prohibited by the subordination provisions set forth in Article 11 of this
Indenture; or
(e) the Company fails to comply with Section 4.11 or to provide
timely notice of any Designated Event in accordance with Section 4.06 or any
Related Transactions Event in accordance with Section 4.09; or
(f) failure of the Company or any Material Subsidiary to make any
payment at maturity, including any applicable grace period, in respect of
indebtedness for borrowed money of, or guaranteed or assumed by, the Company or
any Material Subsidiary, which payment is in an amount in excess of $20,000,000,
and continuance of such failure for 30 days after notice thereof from the
Trustee or the holders of at least 25% in aggregate principal amount of the then
outstanding Convertible Subordinated Notes; or
(g) default by the Company or any Material Subsidiary with
respect to any indebtedness referred to in clause (f) above, which default
results in the acceleration of any such indebtedness of an amount in excess of
$20,000,000 without such indebtedness having been paid or discharged or such
acceleration having been cured, waived, rescinded or annulled for 30 days after
notice thereof from the Trustee or the holders of at least 25% in aggregate
principal amount of the then outstanding Convertible Subordinated Notes; or
(h) the Company or any Material Subsidiary, pursuant to or within
the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against
it in an involuntary case,
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(iii) consents to the appointment of a Custodian of it or
for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors;
(v) makes the admission in writing that it generally is
unable to pay its debts as the same become due; or
(i) a court of competent jurisdiction enters a judgment, order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company or any Material
Subsidiary in an involuntary case,
(ii) appoints a Custodian of the Company or any Material
Subsidiary, and the order or decree remains unstayed
and in effect for 90 days.
(iii) orders the liquidation of the Company or any
Material Subsidiary, and the order or decree remains
unstayed and in effect for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
In the case of any Event of Default, pursuant to the provisions of this
Section 6.01, occurring by reason of any willful action (or inaction) taken (or
not taken) by or on behalf of the Company with the intention of avoiding payment
of the premium which the Company would have had to pay if the Company then had
elected to redeem the Convertible Subordinated Notes pursuant to Paragraph 5 of
the Convertible Subordinated Notes, an equivalent premium shall also become and
be immediately due and payable to the extent permitted by law, upon the
acceleration of the Convertible Subordinated Notes notwithstanding anything
contained in this Indenture or in the Convertible Subordinated Notes to the
contrary.
If an Event of Default occurs prior to any date on which the Company is
prohibited from redeeming the Convertible Subordinated Notes, pursuant to
Paragraph 5 of the Convertible Subordinated Notes, by reason of any willful
action (or inaction) taken (or not taken) by or on behalf of the Company with
the intention of avoiding the prohibition on redemption of the Convertible
Subordinated Notes prior to such date, then the premium specified in this
Indenture shall also become immediately due and payable to the extent permitted
by law upon the acceleration of the Convertible Subordinated Notes.
SECTION 6.02 Acceleration.
If an Event of Default (other than an Event of Default with respect to
the Company specified in clauses (h) and (i) of Section 6.01) occurs and is
continuing, then and in every such case the
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Trustee, by written notice to the Company, or the holders of at least 25% in
aggregate principal amount of the then outstanding Convertible Subordinated
Notes, by written notice to the Company and the Trustee, may declare the unpaid
principal of, premium, if any, and accrued and unpaid interest and Liquidated
Damages, if any, on all the Convertible Subordinated Notes to be due and
payable. Upon such declaration such principal amount, premium, if any, and
accrued and unpaid interest and Liquidated Damages, if any, shall become
immediately due and payable, notwithstanding anything contained in this
Indenture or the Convertible Subordinated Notes to the contrary, but subject to
the provisions of Article 11 hereof. If any Event of Default with respect to the
Company specified in clauses (h) or (i) of Section 6.01 occurs, all unpaid
principal of and premium, if any, and accrued and unpaid interest and Liquidated
Damages, if any, on the Convertible Subordinated Notes then outstanding shall
become automatically due and payable subject to the provisions of Article 11
hereof, without any declaration or other act on the part of the Trustee or any
holder of Convertible Subordinated Notes.
The holders of a majority in aggregate principal amount of the then
outstanding Convertible Subordinated Notes by notice to the Trustee may rescind
an acceleration of the Convertible Subordinated Notes and its consequences if
all existing Events of Default (other than nonpayment of principal of or
premium, if any, and interest and Liquidated Damages, if any, on the Convertible
Subordinated Notes which has become due solely by virtue of such acceleration)
have been cured or waived and if the rescission would not conflict with any
judgment or decree of any court of competent jurisdiction. No such rescission
shall affect any subsequent Default or Event of Default or impair any right
consequent thereto.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue
any available remedy by proceeding at law or in equity to collect the payment of
principal of or interest or Liquidated Damages, if applicable, on the
Convertible Subordinated Notes or to enforce the performance of any provision of
the Convertible Subordinated Notes or this Indenture. The Trustee may maintain a
proceeding even if it does not possess any of the Convertible Subordinated Notes
or does not produce any of them in the proceeding. A delay or omission by the
Trustee or any holder of a Convertible Subordinated Note in exercising any right
or remedy occurring upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults.
The holders of a majority in aggregate principal amount of the
Convertible Subordinated Notes then outstanding may, on behalf of the holders of
all the Convertible Subordinated Notes, waive an existing Default or Event of
Default and its consequences, except a Default or Event of Default in the
payment of the principal of, premium, if any, or interest or Liquidated Damages,
if applicable, on the Convertible Subordinated Notes (other than the non-payment
of principal of and premium, if any, and interest and Liquidated Damages, if
any, on the Convertible Subordinated Notes which has become due solely by virtue
of an acceleration which has been duly rescinded as provided above), or in
respect of a covenant or provision of this Indenture which cannot be modified
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or amended without the consent of all holders of Convertible Subordinated Notes.
When a Default or Event of Default is waived, it is cured and stops continuing.
No waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereon.
SECTION 6.05 Control by Majority.
The holders of a majority in aggregate principal amount of the then
outstanding Convertible Subordinated Notes may direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Indenture that the
Trustee determines may be unduly prejudicial to the rights of other holders of
Convertible Subordinated Notes or that may involve the Trustee in personal
liability; provided that the Trustee shall have no duty or obligation (subject
to Section 7.01) to ascertain whether or not such actions of forebearances are
unduly prejudicial to such holders; provided, further, that the Trustee may take
any other action the Trustee deems proper that is not inconsistent with such
directions.
SECTION 6.06 Limitation on Suits.
A holder of a Convertible Subordinated Note may not pursue any remedy
with respect to this Indenture or the Convertible Subordinated Notes unless:
(1) the holder gives to the Trustee notice of a continuing Event
of Default;
(2) the holders of at least 25% in principal amount of the then
outstanding Convertible Subordinated Notes make a request to the
Trustee to pursue the remedy;
(3) such holder or holders offer and, if requested, provide to
the Trustee 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 the request and the offer and, if requested, the
provision of indemnity; and
(5) during such 60-day period the holders of a majority in
principal amount of the then outstanding Convertible Subordinated Notes
do not give the Trustee a direction inconsistent with the request.
A holder of a Convertible Subordinated Note may not use this Indenture
to prejudice the rights of another holder or to obtain a preference or priority
over another holder.
SECTION 6.07 Rights of Holders To Receive Payment.
Subject to the provisions of Article 11 hereof, notwithstanding any
other provision of this Indenture, the right of any holder of a Convertible
Subordinated Note to receive payment of principal, premium, if any, and interest
and Liquidated Damages, if any, on the Convertible Subordinated Note, on or
after the respective due dates expressed in the Convertible Subordinated
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Note, or to bring suit for the enforcement of any such payment on or after such
respective dates, or to bring suit for the enforcement of the right to convert
the Convertible Subordinated Note shall not be impaired or affected without the
consent of the holder of a Convertible Subordinated Note.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(a), (b) or (d) 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 of
principal and interest and Liquidated Damages, if any, remaining unpaid on the
Convertible Subordinated Notes and interest on overdue principal and interest
and Liquidated Damages, if any, and such further amount as shall be sufficient
to cover the costs and, to the extent lawful, expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
the holders of Convertible Subordinated Notes allowed in any judicial
proceedings relative to the Company, its creditors or its property. Nothing
contained herein shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any holder of a Convertible
Subordinated Note any plan of reorganization, arrangement, adjustment or
composition affecting the Convertible Subordinated Notes 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, it shall
pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07,
including payment of all compensation, expenses and liabilities
incurred, and all advances made, by the Trustee, and the costs and
expenses of collection;
Second: to holders of Senior Debt to the extent required by
Article 11;
Third: to holders of Convertible Subordinated Notes for amounts
due and unpaid on the Convertible Subordinated Notes for principal,
premium, if any, and interest and Liquidated Damages, if any, ratably,
without preference or priority of any kind, according to the amounts
due and payable on the Convertible Subordinated Notes for principal,
premium, if any, and interest and Liquidated Damages, if any,
respectively; and
Fourth: to the Company.
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Except as otherwise provided in Section 2.012, the Trustee may fix a
record date and payment date for any payment to holders of Convertible
Subordinated Notes.
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 a Trustee, a court in its discretion may require the filing by any party
litigant in the suit, other than the Trustee, of an undertaking to pay the costs
of the suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys fees, 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 does not apply to a suit by the Trustee, a suit
by a holder pursuant to Section 6.07 or a suit by holders of more than 10% in
principal amount of the then outstanding Convertible Subordinated Notes.
ARTICLE 7
THE TRUSTEE
The Trustee hereby accepts the trust imposed upon it by this Indenture
and covenants and agrees to perform the same, as herein expressed. Whether or
not herein expressly so provided, every provision of this Indenture relating to
the conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article 7.
SECTION 7.01 Duties of the Trustee.
(a) If an Event of Default known to the Trustee has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested
in it by this Indenture and use the same degree of care and skill in their
exercise as a prudent person would exercise or use under the circumstances in
the conduct of his or her own affairs.
(b) Except during the continuance of an Event of Default known to
the Trustee:
(1) The duties of the Trustee shall be determined solely by
the express provisions of this Indenture and the Trustee need perform only those
duties that are specifically set forth in this Indenture and no others and no
implied covenants or obligations shall be read into this Indenture against the
Trustee; 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 any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the form required by this Indenture.
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(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph
(b) of this Section;
(2) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every provision
of this Indenture that is in any way related to the Trustee is subject to
paragraphs (a), (b) and (c) of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any financial liability in the performance
of any of its duties or the exercise of any of its rights and powers hereunder,
if it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk of liability is not reasonably assured
to it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02 Rights of the Trustee.
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate, or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, security or other document believed by it to be genuine and to have been
signed or presented by the proper person. The Trustee need not investigate any
fact or matter contained therein.
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof is herein specifically prescribed). In
addition, before the Trustee acts or refrains from acting, it may require an
Officers' Certificate, an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
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(c) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through its attorneys
and agents and other persons not regularly in its employ and shall not be
responsible for the misconduct or negligence of any attorney or agent appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith without negligence or willful misconduct which it
believes to be authorized or within its discretion, rights or powers.
(e) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be sufficient if
signed by Officers of the Company.
(f) The Trustee shall not be required to give any bond or surety
in respect of the performance of its powers and duties hereunder.
(g) 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
discretion of any of the holders of Convertible Subordinated Notes pursuant to
the provisions of this Indenture, unless such holders have offered to the
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities which might be incurred therein or thereby.
(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, consent, order, security or other
document unless requested in writing to do so by the holders of not less than a
majority in aggregate principal amount of the Convertible Subordinated Notes
then outstanding, provided that if the Trustee determines in its discretion to
make any such investigation, then it shall be entitled, upon reasonable prior
notice and during normal business hours, to examine the books and records and
the premises of the Company, personally or by agent or attorney, and the
reasonable expenses of every such examination shall be paid by the Company or,
if paid by the Trustee or any predecessor Trustee, shall be reimbursed by the
Company upon demand.
(i) The permissive rights of the Trustee to do things enumerated
in this Indenture shall not be construed as a duty and the Trustee shall not be
answerable for other than its negligence or willful misconduct
(j) The Trustee shall not be responsible for the computation of
any adjustment to the Conversion Price or for any determination as to whether an
adjustment is required and shall not be deemed to have knowledge of any
adjustment unless and until it shall have received the notice from the Company
contemplated by Section 12.05(j).
SECTION 7.03 Individual Rights of the Trustee.
Subject to Sections 7.10 and 7.11, the Trustee in its individual or any
other capacity may become the owner or pledgee of Convertible Subordinated Notes
with the same rights it would have if it were not the Trustee and may otherwise
deal with the Company or an Affiliate of the Company
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and receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights.
SECTION 7.04 Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Indenture or the Convertible Subordinated
Notes. It shall not be accountable for the Company's use of the proceeds from
the Convertible Subordinated Notes or any money paid to the Company or upon the
Company's direction under any provision of this Indenture. It shall not be
responsible for the use or application of any money received by any Paying Agent
other than the Trustee, and it shall not be responsible for any statement or
recital herein or any statement in the Convertible Subordinated Notes or any
other document in connection with the sale of the Convertible Subordinated Notes
or pursuant to this Indenture other than its certificate of authentication.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
known to the Trustee, the Trustee shall mail to each holder of a Convertible
Subordinated Note a notice of the Default or Event of Default within 60 days
after it occurs. A Default or an Event of Default shall not be considered known
to the Trustee unless it is a Default or Event of Default in the payment of
principal or interest when due under Section 6.01(a), (b) or (d) or the Trustee
shall have received notice thereof, in accordance with this Indenture, from the
Company or from the holders of a majority in principal amount of the outstanding
Convertible Subordinated Notes. Except in the case of a Default or Event of
Default in payment of principal of, premium, if any, or interest or Liquidated
Damages, if any, on any Convertible Subordinated Note, the Trustee may withhold
the notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interest of the holders of the
Convertible Subordinated Notes.
SECTION 7.06 Reports by the Trustee to Holders.
Within 60 days after the reporting date stated in Section 10.10, the
Trustee shall mail to holders of Convertible Subordinated Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to holders of
Convertible Subordinated Notes shall be filed, at the expense of the Company, by
the Trustee with the Commission and each stock exchange or securities market, if
any, on which the Convertible Subordinated Notes are listed. The Company shall
timely notify the Trustee when the Convertible Subordinated Notes are listed or
quoted on any stock exchange or securities market.
SECTION 7.07 Compensation and Indemnity.
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The Company shall pay to the Trustee from time to time and the Trustee
shall be entitled to reasonable compensation for its acceptance of this
Indenture and its services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Company
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by or on behalf of it in
addition to the compensation for its services. Such expenses may include the
reasonable compensation, disbursements and expenses of the Trustee's agents,
counsel and other persons not regularly in its employ.
The Company shall indemnify the Trustee against any loss, liability or
expense incurred by it arising out of or in connection with the acceptance or
administration of its duties under this Indenture and the trusts hereunder,
including the costs and expenses of defending itself against or investigating
any claim of liability in the premises, except as set forth in the next
paragraph. The Trustee shall notify the Company promptly of any claim for which
it may seek indemnity. Failure by the Trustee to so notify the Company shall not
relieve the Company of its obligations hereunder. The Company shall defend the
claim with counsel designated by the Company, who may be outside counsel to the
Company but shall in all events be reasonably satisfactory to the Trustee, and
the Trustee shall cooperate in the defense. In addition, the Trustee may retain
one separate counsel and, if deemed advisable by such counsel, local counsel,
and the Company shall pay the reasonable fees and expenses of such separate
counsel and local counsel. The indemnification herein extends to any settlement,
provided that the Company will not be liable for any settlement made without its
consent, provided, further, that such consent will not be unreasonably withheld.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its own negligence or willful
misconduct.
The Trustee shall have a lien prior to the Convertible Subordinated
Notes on all money or property held or collected by the Trustee to secure the
Company's payment obligations in this Section 7.07, except that held in trust to
pay principal and interest and Liquidated Damages, if any, on Convertible
Subordinated Notes. Such liens and the Company's obligations under this Section
7.07 shall survive the satisfaction and discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(h) or (i) occurs, the expenses and the
compensation for the services (including the fees and expenses of its agents and
counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08 Replacement of the Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign at any time and be discharged from the trust
hereby created by so notifying the Company. The holders of a majority in
principal amount of the then outstanding
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Convertible Subordinated Notes may remove the Trustee by so notifying the
Trustee and the Company in writing and may appoint a successor Trustee. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any Bankruptcy
Law;
(3) a Custodian or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the holders
of a majority in principal amount of the then outstanding Convertible
Subordinated Notes may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
holders of at least 10% in principal amount of the then outstanding Convertible
Subordinated Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee after written request by any holder of a Convertible
Subordinated Note who has been a holder for at least six months fails to comply
with Section 7.10, such holder may petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. 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 holders of Convertible Subordinated Notes. The retiring Trustee
shall promptly transfer all property held by it as Trustee to the successor
Trustee, provided that all sums owing to the retiring Trustee hereunder have
been paid and subject to the lien provided for in Section 7.07. Notwithstanding
the replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee with respect to expenses and liabilities incurred by it prior to such
replacement.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
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SECTION 7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or transfers
all or substantially all of its corporate trust business (including the trust
created by this Indenture) to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10 Eligibility, Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall always have a combined
capital and surplus as stated in Section 10.10. The Trustee is subject to TIA
Section 310(b) regarding the disqualification of a trustee upon acquiring a
conflicting interest.
SECTION 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship set forth 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 8
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Indenture.
When (a) the Company delivers to the Trustee for cancellation all
Convertible Subordinated Notes theretofore authenticated (other than any other
Convertible Subordinated Notes which have been destroyed, lost or stolen and in
lieu of or in substitution for which other Convertible Subordinated Notes have
been authenticated and delivered) and not theretofore canceled, or (b) all the
Convertible Subordinated Notes not theretofore canceled or delivered to the
Trustee for cancellation have become due and payable, or are by their terms will
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and the Company deposits with the Trustee, in trust, amounts
sufficient to pay at maturity or upon redemption of all of the Convertible
Subordinated Notes (other than any Convertible Subordinated Notes which have
been mutilated, destroyed, lost or stolen and in lieu of or in substitution for
which other Convertible Subordinated Notes have been authenticated and
delivered) not theretofore canceled or delivered to the Trustee for
cancellation, including principal and premium, if any, and interest and
Liquidated Damages, if any, due or to become due to such date of maturity or
redemption date, as the case may be, and if in either case the Company also
pays, or causes to be paid, all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect (except as to (i) rights
of registration of transfer, substitution, replacement and exchange and
conversion of Convertible Subordinated Notes,
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(ii) rights hereunder of holders of Convertible Subordinated Notes to receive
payments of principal of and premium, if any, and interest, and Liquidated
Damages, if any, on, the Convertible Subordinated Notes, (iii) the obligations
under Sections 2.03 and 8.05 hereof and (iv) the rights, obligations and
immunities of the Trustee hereunder), and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel as required by
Section 10.04 and at the Company's cost and expense, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture; the
Company, however, hereby agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Convertible
Subordinated Notes.
SECTION 8.02 Deposited Monies to be Held in Trust by Trustee.
Subject to Section 8.04, all monies deposited with the Trustee pursuant
to Section 8.01 shall be held in trust and applied by it to the payment,
notwithstanding the provisions of Article 11, either directly or through the
Paying Agent, to the holders of the particular Convertible Subordinated Notes
for the payment or redemption of which such monies have been deposited with the
Trustee, of all sums due and to become due thereon for principal and interest,
and Liquidated Damages, if any, and premium, if any.
SECTION 8.03 Paying Agent to Repay Monies Held.
Upon the satisfaction and discharge of this Indenture, all monies then
held by any Paying Agent (other than the Trustee) shall, upon the Company's
demand, be repaid to it or paid to the Trustee, and thereupon such Paying Agent
shall be released from all further liability with respect to such monies.
SECTION 8.04 Return of Unclaimed Monies.
Subject to the requirements of applicable law, any monies deposited
with or paid to the Trustee for payment of the principal of, premium, if any, or
interest (including Liquidated Damages) on Convertible Subordinated Notes and
not applied but remaining unclaimed by the holders thereof for two years after
the date upon which the principal of, premium, if any, or interest (including
Liquidated Damages) on such Convertible Subordinated Notes, as the case may be,
have become due and payable, shall be repaid to the Company by the Trustee on
demand; provided, however, that the Company, or the Trustee at the request of
the Company, shall have first caused notice of such payment to the Company to be
mailed to each holder of a Convertible Subordinated Note entitled thereto no
less than 30 days prior to such payment and all liability of the Trustee shall
thereupon cease with respect to such monies; and the holder of any of the
Convertible Subordinated Notes shall thereafter look only to the Company for any
payment which such holder may be entitled to collect unless an applicable
abandoned property law designates another person.
SECTION 8.05 Reinstatement.
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If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 8.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's obligations under this Indenture and the Convertible
Subordinated Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee or the Paying
Agent is permitted to apply all such money in accordance with Section 8.02;
provided, however, that if the Company makes any payment of interest (including
Liquidated Damages) on or principal of any Convertible Subordinated Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the holders thereof to receive such payment from the money held
by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without the Consent of Holders.
The Company and the Trustee may amend this Indenture or the Convertible
Subordinated Notes without notice to or the consent of any holder of a
Convertible Subordinated Note for the purposes of:
(a) curing any ambiguity or correcting or supplementing any
defective or inconsistent provision contained in this Indenture or making any
other changes in the provisions of this Indenture which the Company and the
Trustee may deem necessary or desirable provided such amendment does not
materially and adversely affect the legal rights under the Indenture of the
holders of Convertible Subordinated Notes.
(b) providing for uncertificated Convertible Subordinated Notes
in addition to or in place of certificated Convertible Subordinated Notes;
(c) evidencing the succession of another person to the Company
and providing for the assumption by such successor of the covenants and
obligations of the Company thereunder and in the Convertible Subordinated Notes
as permitted by Section 5.01;
(d) providing for conversion rights and/or repurchase rights of
holders of Convertible Subordinated Notes in the event of consolidation, merger
or sale of all or substantially all of the assets of the Company as required to
comply with Sections 5.01 and/or 12.06;
(e) reducing the Conversion Price;
(f) making any changes that would provide the holders of the
Convertible Subordinated Notes with any additional rights or benefits or that
does not adversely affect the legal rights under this Indenture of any such
holder; or
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(g) complying with the requirements of the Commission in order to
effect or maintain the qualification of the Indenture under the TIA.
SECTION 9.02 With the Consent of Holders.
Subject to Section 6.07, the Company and the Trustee may amend this
Indenture or the Convertible Subordinated Notes with the written consent of the
holders of at least a majority in principal amount of the then outstanding
Convertible Subordinated Notes (including consents obtained in connection with a
tender offer or exchange offer for Convertible Subordinated Notes).
Subject to Sections 6.04 and 6.07, the holders of a majority in
principal amount of the Convertible Subordinated Notes then outstanding may also
waive compliance in a particular instance by the Company with any provision of
this Indenture or the Convertible Subordinated Notes.
However, without the consent of each holder of a Convertible
Subordinated Note affected, an amendment or waiver under this Section may not
(with respect to any Convertible Subordinated Notes held by a non-consenting
holder):
(a) reduce the principal amount of Convertible Subordinated Notes
whose holders must consent to an amendment, supplement or waiver;
(b) reduce the principal of or premium on or change the fixed
maturity of any Convertible Subordinated Note or, except as permitted pursuant
to Section 9.01(a), alter the redemption provisions with respect thereto;
(c) reduce the rate of, or change the time for payment of,
interest, including defaulted interest, or Liquidated Damages on any Convertible
Subordinated Note;
(d) waive a Default or Event of Default in the payment of
principal of or premium, if any, or interest or Liquidated Damages on the
Convertible Subordinated Notes (except a rescission of acceleration of the
Convertible Subordinated Notes by the holders of at least a majority in
aggregate principal amount of the Convertible Subordinated Notes then
outstanding and a waiver of the payment default that resulted from such
acceleration);
(e) make the principal of, or premium, if any, or interest or
Liquidated Damages on, any Convertible Subordinated Note payable in money other
than as provided for herein and in the Convertible Subordinated Notes;
(f) make any change in the provisions of this Indenture relating
to waivers of past Defaults or Events of Default or the rights of holders of
Convertible Subordinated Notes to receive payments of principal of, premium, if
any, or interest or Liquidated Damages on the Convertible Subordinated Notes;
(g) waive a redemption payment with respect to any Convertible
Subordinated Notes;
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(h) except as permitted herein (including Section 9.01(a)),
increase the Conversion Price or modify the provisions contained herein relating
to conversion of the Convertible Subordinated Notes in a manner adverse to the
holders thereof; or
(i) make any change to the abilities of holders of Convertible
Subordinated Notes to enforce their rights hereunder or the provisions of
clauses (a) through (i) of this Section 9.02.
To secure a consent of the holders of Convertible Subordinated Notes
under this Section, it shall not be necessary for such holders to approve the
particular form of any proposed amendment or waiver, but it shall be sufficient
if such consent approves the substance thereof.
After an amendment or waiver under this Section becomes effective, the
Company shall mail to holders of Convertible Subordinated Notes a notice briefly
describing the amendment or waiver.
In order to amend any provisions of Article 11, holders of at least 75%
in aggregate principal amount of Convertible Subordinated Notes then outstanding
must consent to such amendment if such amendment would adversely affect the
rights of holders of Convertible Subordinated Notes.
SECTION 9.03 Compliance with the Trust Indenture Act.
Every amendment to this Indenture or the Convertible Subordinated Notes
shall be set forth in a supplemental indenture that complies with the TIA as
then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
holder of a Convertible Subordinated Note is a continuing consent by the holder
and every subsequent holder of a Convertible Subordinated Note or portion of a
Convertible Subordinated Note that evidences the same debt as the consenting
holder's Convertible Subordinated Note, even if notation of the consent is not
made on any Convertible Subordinated Note. However, any such holder or
subsequent holder may revoke the consent as to his or her Convertible
Subordinated Note or portion of a Convertible Subordinated Note if the Trustee
receives the notice of revocation before the date on which the Trustee receives
an Officers' Certificate certifying that the holders of the requisite principal
amount of Convertible Subordinated Notes have consented to the amendment or
waiver.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the holders of Convertible Subordinated Notes
entitled to consent to any amendment or waiver. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
persons who were holders of Convertible Subordinated Notes at such record date
(or their duly designated proxies), and only those persons, shall be entitled to
consent to such amendment or waiver or to revoke any consent previously given,
whether or not such persons continue to be holders after such record date. No
consent shall be valid or effective for more than 90 days after such record date
unless consents from holders of the principal amount of Convertible Subordinated
Notes required hereunder for such amendment or waiver to be effective shall have
also been given and not revoked within such 90-day period.
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After an amendment or waiver becomes effective it shall bind every
holder of a Convertible Subordinated Note, unless it is of the type described in
clauses (a) - (i) of Section 9.02. In such case, the amendment or waiver shall
bind each holder of a Convertible Subordinated Note who has consented to it and
every subsequent holder of a Convertible Subordinated Note or portion of a
Convertible Subordinated Note that evidences the same debt as the consenting
holder's Convertible Subordinated Note.
SECTION 9.05 Notation on or Exchange of Convertible Subordinated Notes.
Convertible Subordinated Notes authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article 9 may, and
shall if required by the Trustee, bear a notation in the form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Convertible Subordinated Notes so modified as to
conform, in the opinion of the Company and the Trustee, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for outstanding Convertible Subordinated
Notes without charge to the holders of the Convertible Subordinated Notes,
except as specified in Section 2.06.
SECTION 9.06 Trustee Protected.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article 9 if such amendment or supplemental
indenture does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign it.
In signing such amendment or supplemental indenture, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that such amendment
or supplemental indenture is authorized or permitted by this Indenture, that it
is not inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
ARTICLE 10
GENERAL PROVISIONS
SECTION 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), such duties imposed by such section of
the TIA shall control. If any provision of this Indenture expressly modifies or
excludes any provision of the TIA that may be so modified or excluded, the
Indenture provision so modifying or excluding such provision of the TIA shall be
deemed to apply.
SECTION 10.02 Notices.
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Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail, with postage prepaid (registered or certified, return receipt requested),
or sent by facsimile or overnight air couriers guaranteeing next day delivery,
to the other's address as stated in Section 10.10. The Company or the Trustee by
notice to the other may designate additional or different addresses for
subsequent notices or communications.
All notices and communications (other than those sent to holders of
Convertible Subordinated Notes) shall be deemed to have been duly given at the
time delivered by hand, if personally delivered; five business days after being
deposited in the mail, postage prepaid, if mailed; when transmission is
confirmed, if transmitted by facsimile; and the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next day
delivery. Notwithstanding the foregoing, all notices to the Trustee shall be
effective only upon receipt by a Trust Officer.
Any notice or communication to a holder of a Convertible Subordinated
Note shall be mailed by first-class mail, with postage prepaid, to his or her
address shown on the Register kept by the Registrar. Failure to mail a notice or
communication to a holder or any defect in it shall not affect its sufficiency
with respect to other holders.
If a notice or communication is sent in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company sends a notice or communication to holders of
Convertible Subordinated Notes, it shall send a copy to the Trustee and each
Agent at the same time.
All notices or communications shall be in writing.
SECTION 10.03 Communication by Holders With Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
holders with respect to their rights under this Indenture or the Convertible
Subordinated Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
SECTION 10.04 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 in form and substance
reasonably satisfactory to the Trustee (which shall include the statements set
forth in Section 10.05) stating that, in the opinion of such person, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
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(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05) stating that, in the opinion of such counsel, all such conditions
precedent and covenants have been complied with.
SECTION 10.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he or she
has made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such Officer knows that the opinion
with respect to the matters upon which his or her certificate may be based as
aforesaid is erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters, upon certificates, statements or opinions of, or
representations by an officer or officers of the Company, or other persons or
firms deemed appropriate by such counsel, unless such counsel knows that the
certificates, statements or opinions or representations with respect to the
matters upon which his or her opinion may be based as aforesaid are erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be
based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representation by an accountant (who may be an employee of the
Company), or firm of accountants, unless such Officer or counsel, as the case
may be, knows that the certificate or opinion or representation with respect to
the accounting matters upon which his or her certificate, statement or opinion
may be based as aforesaid is erroneous.
SECTION 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by, or a meeting of,
holders of Convertible Subordinated Notes. The Registrar or Paying Agent may
make reasonable rules and set reasonable requirements for its functions.
SECTION 10.07 Legal Holidays.
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A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in the City of New York, the city in which the Corporate Trust
Office of the Trustee is located or the City of San Jose, California are not
required to be open, and a "business day" is any day that is not a Legal
Holiday. If a payment date is a Legal Holiday at a place of payment, payment may
be made at that place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period. If any date specified
in this Indenture, including, without limitation, a redemption date under
Paragraph 5 of Convertible Subordinated Notes, is a Legal Holiday, then such
date shall be the next succeeding business day.
SECTION 10.08 No Recourse Against Others.
No director, officer, employee or stockholder, as such, of the Company
from time to time shall have any liability for any obligations of the Company
under the Convertible Subordinated Notes or this Indenture or for any claim
based on, in respect of, or by reason of such obligations or their creation.
Each holder by accepting a Convertible Subordinated Note waives and releases all
such liability. This waiver and release are part of the consideration for the
Convertible Subordinated Notes. Each of such directors, officers, employees and
stockholders is a third party beneficiary of this Section 10.08.
SECTION 10.09 Counterparts.
This Indenture may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.
SECTION 10.10 Other Provisions.
The Company initially appoints the Trustee as Paying Agent, Registrar
and authenticating agent.
The reporting date for Section 7.06 is March 1 of each year. The first
reporting date is the March 1 following the issuance of Convertible Subordinated
Notes hereunder.
The Trustee shall always have, or shall be a subsidiary of a bank or
bank holding company which has, a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition.
The Company's address is:
Amkor Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Attention: General Counsel's Office
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
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The Trustee's address is:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
attention: Corporate Trust Department (Amkor Technology, Inc.
5% Convertible Notes due 2007)
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
SECTION 10.11 Governing Law.
The internal laws of the State of New York shall govern this Indenture
and the Convertible Subordinated Notes, without regard to the conflict of laws
provisions thereof.
SECTION 10.12 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a subsidiary. Any such other indenture, loan or
debt agreement may not be used to interpret this Indenture.
SECTION 10.13 Successors.
All agreements of the Company in this Indenture and the Convertible
Subordinated Notes shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 10.14 Severability.
In case any provision in this Indenture or in the Convertible
Subordinated Notes 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 10.15 Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
ARTICLE 11
SUBORDINATION
SECTION 11.01 Agreement to Subordinate.
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The Company agrees, and each holder of Convertible Subordinated Notes
by accepting a Convertible Subordinated Note agrees, that the indebtedness
evidenced by the Convertible Subordinated Note is subordinated in right of
payment, to the extent and in the manner provided in this Article 11, to the
prior payment in full in cash or payment satisfactory to holders of Senior Debt
of all Senior Debt (whether outstanding on the date hereof or hereafter created,
incurred, assumed or guaranteed), and that the subordination is for the benefit
of the holders of Senior Debt.
SECTION 11.02 Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or
dissolution of the Company or in a bankruptcy, reorganization, insolvency,
receivership or similar proceeding relating to the Company or its property, in
an assignment for the benefit of creditors or any marshaling of the Company's
assets and liabilities:
(1) holders of Senior Debt shall be entitled to receive
payment in full of all Obligations due in respect of such Senior Debt (including
interest and Liquidated Damages, if any, after the commencement of any such
proceeding at the rate specified in the applicable Senior Debt) in cash or other
payment satisfactory to the holders of the Senior Debt before holders of
Convertible Subordinated Notes shall be entitled to receive any payment with
respect to the Convertible Subordinated Notes; and
(2) until all Senior Debt is paid in full in cash or other
payment satisfactory to the holders of the Senior Debt, any distribution to
which holders of Convertible Subordinated Notes would be entitled but for this
Article 11 shall be made to holders of Senior Debt, as their interests may
appear.
SECTION 11.03 Default on Senior Debt and/or Designated Senior Debt.
The Company may not make any payment or distribution to the Trustee or
any holder of Convertible Subordinated Notes in respect of Obligations with
respect to the Convertible Subordinated Notes and may not acquire from the
Trustee or any holder of Convertible Subordinated Notes any Convertible
Subordinated Notes until all Senior Debt has been paid in full in cash or other
payment satisfactory to the holders of the Senior Debt if:
(i) a default in the payment of any principal of, premium, if
any, interest, rent or other Obligations in respect of Senior Debt occurs and is
continuing beyond any applicable grace period in the agreement, indenture or
other document governing such Senior Debt; or
(ii) a default, other than a payment default, on Designated
Senior Debt occurs and is continuing that then permits holders of such
Designated Senior Debt to accelerate its maturity and the Trustee receives a
notice of the default (a "Payment Blockage Notice") from a person who may give
it pursuant to Section 11.11 hereof.
If the Trustee receives any Payment Blockage Notice pursuant to Section
11.03 (ii) hereof, no subsequent Payment Blockage Notice shall be effective for
purposes of such Section unless and
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until at least 365 days shall have elapsed since the effectiveness of the
immediately prior Payment Blockage Notice. No nonpayment default that existed or
was continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice.
The Company may and shall resume payments on and distributions in
respect of the Convertible Subordinated Notes and may acquire them upon the
earlier of:
(1) in the case of a payment default, upon the date upon which
the default is cured or waived or ceases to exist, or
(2) in the case of a nonpayment default referred to in Section
11.03(ii) hereof, the earlier of the date upon which the default is cured or
waived ceases to exist or 179 days after notice is received if the maturity of
such Designated Senior Debt has not been accelerated,
if this Article otherwise permits the payment, distribution or acquisition at
the time of such payment or acquisition.
SECTION 11.04 Acceleration of Convertible Subordinated Notes
In the event of the acceleration of the Convertible Subordinated Notes
because of an Event of Default, the Company may not make any payment or
distribution to the Trustee or any holder of Convertible Subordinated Notes in
respect of Obligations with respect to Convertible Subordinated Notes and may
not acquire or purchase from the Trustee or any holder of Convertible
Subordinated Notes any Convertible Subordinated Notes until all Senior Debt has
been paid in full in cash or other payment satisfactory to the holders of Senior
Debt or such acceleration is rescinded in accordance with the terms of this
Indenture.
If payment of the Convertible Subordinated Notes is accelerated because
of an Event of Default, the Company or the Trustee shall promptly notify holders
of Senior Debt or trustee(s) of such Senior Debt of the acceleration.
SECTION 11.05 When Distribution Must Be Paid Over.
In the event that the Trustee, any holder of Convertible Subordinated
Notes or any other person receives any payment or distributions of assets of the
Company of any kind with respect to the Convertible Subordinated Notes in
contravention of any terms contained in this Indenture, whether in cash,
property or securities, including, without limitation by way of set-off or
otherwise, then such payment shall be held by the recipient in trust for the
benefit of holders of Senior Debt, and shall be immediately paid over and
delivered to the holders of Senior Debt or the representative(s), to the extent
necessary to make payment in full of all Senior Debt remaining unpaid, after
giving effect to any concurrent payment or distribution or provision therefor,
to or for the holders of Senior Debt; provided that the foregoing shall apply to
the Trustee only if the Trustee
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has actual knowledge (as determined in accordance with Section 11.11) that such
payment or distribution is prohibited by this Indenture.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform only such obligations on the part of the Trustee as are specifically set
forth in this Article 11, and no implied covenants or obligations with respect
to the holders of Senior Debt shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt, and shall not be liable to any such holders if the
Trustee shall pay over or distribute to or on behalf of holders of Convertible
Subordinated Notes or the Company or any other person money or assets to which
any holders of Senior Debt shall be entitled by virtue of this Article 11,
except if such payment is made as a result of the willful misconduct or gross
negligence of the Trustee.
SECTION 11.06 Notice by Company.
The Company shall promptly notify the Trustee of any facts known to the
Company that would cause a payment of any Obligations with respect to the
Convertible Subordinated Notes or the purchase of any Convertible Subordinated
Notes by the Company to violate this Article, but failure to give such notice
shall not affect the subordination of the Convertible Subordinated Notes to the
Senior Debt as provided in this Article.
SECTION 11.07 Subrogation.
After all Senior Debt is paid in full and until the Convertible
Subordinated Notes are paid in full, holders of Convertible Subordinated Notes
shall be subrogated (equally and ratably with all other indebtedness pari passu
with the Convertible Subordinated Notes) to the rights of holders of Senior Debt
to receive distributions applicable to Senior Debt to the extent that
distributions otherwise payable to the holders of Convertible Subordinated Notes
have been applied to the payment of Senior Debt. A distribution made under this
Article to holders of Senior Debt that otherwise would have been made to holders
of Convertible Subordinated Notes is not, as between the Company and holders of
Convertible Subordinated Notes, a payment by the Company on the Convertible
Subordinated Notes.
SECTION 11.08 Relative Rights.
This Article defines the relative rights of holders of Convertible
Subordinated Notes and holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and holders of Convertible
Subordinated Notes, the obligation of the Company, which is absolute and
unconditional, to pay principal of, premium, if any, and interest (including
Liquidated Damages) on the Convertible Subordinated Notes in accordance with
their terms;
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(2) affect the relative rights of holders of Convertible
Subordinated Notes and creditors (other than with respect to Senior Debt) of the
Company, other than their rights in relation to holders of Senior Debt; or
(3) prevent the Trustee or any holder of Convertible
Subordinated Notes from exercising its available remedies upon a Default or
Event of Default, subject to the rights of holders and owners of Senior Debt to
receive distributions and payments otherwise payable to holders of Convertible
Subordinated Notes.
If the Company fails because of this Article to pay principal of or
interest (including Liquidated Damages) on a Convertible Subordinated Note on
the due date, the failure is still a Default or Event of Default.
SECTION 11.09 Subordination May Not Be Impaired by Company.
No right of any holder of Senior Debt to enforce the subordination of
the indebtedness evidenced by the Convertible Subordinated Notes shall be
impaired by any act or failure to act by the Company or any holder of
Convertible Subordinated Notes or by the failure of the Company or any such
holder to comply with this Indenture.
SECTION 11.10 Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of
Senior Debt, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article 11, the Trustee and the holders of Convertible Subordinated
Notes shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction or upon any certificate of such Representative or of the
liquidating trustee or agent or other person making any distribution to the
Trustee or to the holders of Convertible Subordinated Notes for the purpose of
ascertaining the persons entitled to participate in such distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 11.
SECTION 11.11 Rights of Trustee and Paying Agent.
Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that would prohibit the making of any payment or
distribution by the Trustee (other than pursuant to Section 11.04), and the
Trustee may continue to make payments on the Convertible Subordinated Notes,
unless a Trust Officer shall have received at least two business days prior to
the date of such payment or distribution written notice of facts that would
cause such payment or distribution with respect to the Convertible Subordinated
Notes to violate this Article. Only the Company or a Representative may give the
notice.
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Nothing in this Article 11 shall impair the claims of, or payments to,
the Trustee under or pursuant to Section 7.07 hereof.
The Trustee in its individual or any other capacity may hold Senior
Debt with the same rights it would have if it were not Trustee. Any Agent may do
the same with like rights.
SECTION 11.12 Authorization to Effect Subordination.
Each holder of a Convertible Subordinated Note by the holder's
acceptance thereof authorizes and directs the Trustee on the holder's behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article 11, and appoints the Trustee to act as
the holder's attorney-in-fact for any and all such purposes. If the Trustee does
not file a proper proof of claim or proof of debt in the form required in any
proceeding referred to in Section 6.09 hereof at least 30 days before the
expiration of the time to file such claim, the holders of any Senior Debt or
their Representatives are hereby authorized to file an appropriate claim for and
on behalf of the holders of the Convertible Subordinated Notes.
SECTION 11.13 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that the second and third paragraphs of Section 11.11 shall not apply
to the Company or any subsidiary of the Company if it or such subsidiary acts as
Paying Agent.
SECTION 11.14 Senior Debt Entitled to Rely.
The holders of Senior Debt shall have the right to rely upon this
Article 11, and no amendment or modification of the provisions contained herein
shall diminish the rights of such holders unless such holders shall have agreed
in writing thereto.
SECTION 11.15 Permitted Payments.
Notwithstanding anything to the contrary in this Article 11, the
holders of Convertible Subordinated Notes may receive and retain at any time on
or prior to the Maturity Date (i) securities that are subordinated to at least
the same extent as the Convertible Subordinated Notes to (a) Senior Debt and (b)
any securities issued in exchange for Senior Debt and (ii) payments and other
distributions made from any trust created pursuant to Section 8.01 hereof.
SECTION 11.16 Seniority Prior to Put Expiration Date.
Notwithstanding anything to the contrary in this Article 11, on or
prior to the Put Expiration Date, the Convertible Subordinated Notes shall be
senior debt of the Company and shall rank equally
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in right of payment to all of the Company's existing and future unsecured Senior
Debt and senior in right of payment to all of the Company's existing and future
debt that provides that it is subordinated to the Convertible Subordinated
Notes. Without limiting the generality of the foregoing, payments made by the
Company to repurchase Convertible Subordinated Notes pursuant to a Related
Transactions Offer shall not be subordinated in right of payment to the prior
payment of Senior Debt.
ARTICLE 12
CONVERSION OF CONVERTIBLE SUBORDINATED NOTES
SECTION 12.01 Right to Convert.
Subject to and upon compliance with the provisions of this Indenture,
each holder of Convertible Subordinated Notes shall have the right, at his or
her option, at any time on or before the close of business on the last trading
day prior to the Maturity Date (except that, (a) with respect to any Convertible
Subordinated Note or portion thereof which is called for redemption prior to
such date, such right shall terminate, except as provided in the fourth
paragraph of Section 12.02, before the close of business on the last trading day
preceding the date fixed for redemption (unless the Company defaults in payment
of the redemption price in which case the conversion right will terminate at the
close of business on the date such default is cured) and (b) with respect to any
Convertible Subordinated Note or portion thereof subject to a duly completed
election for repurchase, such right shall terminate on or before the close of
business on the Designated Event Offer Termination Date or the Related
Transactions Offer Termination Date (unless the Company defaults in the payment
due upon repurchase or such holder elects to withdraw the submission of such
election to repurchase)) to convert the principal amount of any Convertible
Subordinated Note held by such holder, or any portion of such principal amount
which is $1,000 or an integral multiple thereof, into that number of fully paid
and non-assessable shares of Common Stock (as such shares shall then be
constituted) obtained by dividing the principal amount of the Convertible
Subordinated Note or portion thereof to be converted by the Conversion Price in
effect at such time, by surrender of the Convertible Subordinated Note so to be
converted in whole or in part in the manner provided in Section 12.02. A holder
of Convertible Subordinated Notes is not entitled to any rights of a holder of
Common Stock until such holder of Convertible Subordinated Notes has converted
his or her Convertible Subordinated Notes to Common Stock, and only to the
extent such Convertible Subordinated Notes are deemed to have been converted to
Common Stock under this Article 12.
SECTION 12.02 Exercise of Conversion Privilege; Issuance of Common Stock on
Conversion; No Adjustment for Interest or Dividends.
To exercise, in whole or in part, the conversion privilege with respect
to any Convertible Subordinated Note, the holder of such Convertible
Subordinated Note shall surrender such Convertible Subordinated Note, duly
endorsed, at an office or agency maintained by the Company pursuant to Section
4.04, accompanied by the funds, if any, required by the penultimate paragraph of
this Section 12.02, and shall give written notice of conversion in the form
provided on the
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Convertible Subordinated Notes (or such other notice which is acceptable to the
Company) to the office or agency that the holder of Convertible Subordinated
Notes elects to convert such Convertible Subordinated Note or such portion
thereof specified in said notice. Such notice shall also state the name or names
(with address or addresses) in which the certificate or certificates for shares
of Common Stock which are issuable on such conversion shall be issued, and shall
be accompanied by transfer taxes, if required pursuant to Section 12.07. Each
such Convertible Subordinated Note surrendered for conversion shall, unless the
shares issuable on conversion are to be issued in the same name as the
registration of such Convertible Subordinated Note, be duly endorsed by, or be
accompanied by instruments of transfer in form satisfactory to the Company duly
executed by, the holder of Convertible Subordinated Notes or his or her duly
authorized attorney. The holder of such Convertible Subordinated Notes will not
be required to pay any tax or duty which may be payable in respect of the issue
or delivery of Common Stock on conversion, but will be required to pay any tax
or duty which may be payable in respect of any transfer involved in the issue or
delivery of Common Stock in a name other than the same name as the registration
of such Convertible Subordinated Note.
As promptly as practicable after satisfaction of the requirements for
conversion set forth above, the Company shall issue and shall deliver to such
holder at the office or agency maintained by the Company for such purpose
pursuant to Section 4.04, a certificate or certificates for the number of full
shares of Common Stock issuable upon the conversion of such Convertible
Subordinated Note or portion thereof in accordance with the provisions of this
Article 12 and a check or cash in respect of any fractional interest in respect
of a share of Common Stock arising upon such conversion, as provided in Section
12.03 (which payment, if any, shall be paid no later than five business days
after satisfaction of the requirements for conversion set forth above).
Certificates representing shares of Common Stock will not be issued or delivered
unless all taxes and duties, if any, payable by the holder have been paid. In
case any Convertible Subordinated Note of a denomination of an integral multiple
greater than $1,000 is surrendered for partial conversion, and subject to
Section 2.02, the Company shall execute, and the Trustee shall authenticate and
deliver to the holder of the Convertible Subordinated Note so surrendered,
without charge to him or her, a new Convertible Subordinated Note or Convertible
Subordinated Notes in authorized denominations in an aggregate principal amount
equal to the unconverted portion of the surrendered Convertible Subordinated
Note.
Each conversion shall be deemed to have been effected as to any such
Convertible Subordinated Note (or portion thereof) on the date on which the
requirements set forth above in this Section 12.02 have been satisfied as to
such Convertible Subordinated Note (or portion thereof), and the person in whose
name any certificate or certificates for shares of Common Stock are issuable
upon such conversion shall be deemed to have become on said date the holder of
record of the shares represented thereby; provided, however, that any such
surrender on any date when the Company's stock transfer books are closed shall
constitute the person in whose name the certificates are to be issued as the
record holder thereof for all purposes on the next succeeding day on which such
stock transfer books are open, but such conversion shall be at the Conversion
Price in effect on the date upon which such Convertible Subordinated Note is
surrendered.
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Any Convertible Subordinated Note or portion thereof surrendered for
conversion during the period from the close of business on the record date for
any interest payment through the close of business on the last trading day
immediately preceding such interest payment date shall (unless such Convertible
Subordinated Note or portion thereof being converted has been called for
redemption pursuant to a notice of redemption mailed by the Company to the
holders in accordance with the provisions of Section 3.04) be accompanied by
payment, in funds acceptable to the Company, of an amount equal to the interest
and Liquidated Damages, if any, otherwise payable on such interest payment date
on the principal amount being converted; provided however, that no such payment
need be made if there exists at the time of conversion a default in the payment
of interest or Liquidated Damages, if applicable, on the Convertible
Subordinated Notes. An amount equal to such payment shall be paid by the Company
on such interest payment date to the holder of such Convertible Subordinated
Note at the close of business on such record date; provided, however, that if
the Company defaults in the payment of interest or Liquidated Damages, if
applicable, on such interest payment date, such amount shall be paid to the
person who made such required payment. Except as provided above in this Section
12.02, no adjustment shall be made for interest and Liquidated Damages, if any,
accrued on any Convertible Subordinated Note converted or for dividends on any
shares issued upon the conversion of such Convertible Subordinated Note as
provided in this Article 12.
SECTION 12.03 Cash Payments in Lieu of Fractional Shares.
No fractional shares of Common Stock or scrip representing fractional
shares shall be issued upon conversion of Convertible Subordinated Notes. If
more than one Convertible Subordinated Note shall be surrendered for conversion
at one time by the same holder, the number of full shares which shall be
issuable upon conversion shall be computed on the basis of the aggregate
principal amount of the Convertible Subordinated Notes (or specified portions
thereof to the extent permitted hereby) so surrendered for conversion. If any
fractional share of stock otherwise would be issuable upon the conversion of any
Convertible Subordinated Note or Convertible Subordinated Notes, the Company
shall make an adjustment therefor in cash based upon the Current Market Price of
the Common Stock on the last trading day prior to the date of conversion.
SECTION 12.04 Conversion Price.
The conversion price shall be as specified in the form of Convertible
Subordinated Note attached as Exhibit A hereto, subject to adjustment as
provided in this Article 12.
SECTION 12.05 Adjustment of Conversion Price.
The Conversion Price shall be adjusted from time to time by the Company
as follows:
(a) If the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Price in effect at the opening of business on the date
following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be the number of
shares of
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Common Stock outstanding at the close of business on the Record Date (as defined
in Section 12.05(g)) fixed for such determination and the denominator shall be
the sum of such number of shares and the total number of shares constituting
such dividend or other distribution, such reduction to become effective
immediately after the opening of business on the day following the Record Date.
If any dividend or distribution of the type described in this Section 12.05(a)
is declared but not so paid or made, the Conversion Price shall again be
adjusted to the Conversion Price which would then be in effect if such dividend
or distribution had not been declared.
(b) If the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Price
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately reduced, and,
conversely, if the outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in effect at the
opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
(c) If the Company shall issue rights or warrants to all or
substantially all holders of its outstanding shares of Common Stock entitling
them to subscribe for or purchase shares of Common Stock at a price per share
less than the Current Market Price (as defined in Section 12.05(g)) on the
Record Date fixed for the determination of stockholders entitled to receive such
rights or warrants, the Conversion Price shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion Price in effect
at the opening of business on the date after such Record Date by a fraction of
which the numerator shall be the number of shares of Common Stock outstanding at
the close of business on the Record Date plus the number of shares which the
aggregate offering price of the total number of shares so offered would purchase
at such Current Market Price, and of which the denominator shall be the number
of shares of Common Stock outstanding on the close of business on the Record
Date plus the total number of additional shares of Common Stock so offered for
subscription or purchase. Such adjustment shall become effective immediately
after the opening of business on the day following the Record Date fixed for
determination of stockholders entitled to receive such rights or warrants. To
the extent that 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 Price shall be readjusted to be the Conversion Price which would then
be in effect had the adjustments made upon the issuance of such rights or
warrants been made on the basis of delivery of only the number of shares of
Common Stock actually delivered. If such rights or warrants are not so issued,
the Conversion Price shall again be adjusted to be the Conversion Price which
would then be in effect if such 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 Current Market 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, with the value of such consideration, if other than cash, to be
determined by the Board of Directors.
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(d) If the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock shares of any class of capital stock of the
Company (other than any dividends or distributions to which Section 12.05(a)
applies) or evidences of its indebtedness, cash or other assets (including
securities, but excluding (i) any rights or warrants of a type referred to in
Section 12.05(c) and (ii) dividends and distributions paid exclusively in cash)
(the foregoing hereinafter in this Section 12.05(d) called the "Securities"),
then, in each such case, the Conversion Price shall be reduced so that the same
shall be equal to the price determined by multiplying the Conversion Price in
effect immediately prior to the close of business on the Record Date (as defined
in Section 12.05(g)) with respect to such distribution by a fraction of which
the numerator shall be the Current Market Price (determined as provided in
Section 12.05(g)) on such date less the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) on such date of the portion of the
Securities so distributed applicable to one share of Common Stock and the
denominator shall be such Current Market Price, such reduction to become
effective immediately prior to the opening of business on the day following the
Record Date; provided, however, that in the event the then fair market value (as
so determined) of the portion of the Securities 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 of Convertible Subordinated Notes shall have the
right to receive upon conversion of a Convertible Subordinated Note (or any
portion thereof) the amount of Securities such holder would have received had
such holder converted such Convertible Subordinated Note (or portion thereof)
immediately prior to such Record Date. If such dividend or distribution is not
so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or distribution
had not been declared. If the Board of Directors determines the fair market
value of any distribution for purposes of this Section 12.05(d) by reference to
the actual or when issued trading market for any securities comprising all or
part of such distribution, it must in doing so consider the prices in such
market over the same period used in computing the Current Market Price pursuant
to Section 12.05(g) to the extent possible.
Notwithstanding any other provision of this Section 12.05(d) to the
contrary, rights, warrants, evidences of indebtedness, other securities, cash or
other assets (including, without limitation, any rights distributed pursuant to
any stockholder rights plan) shall be deemed not to have been distributed for
purposes of this Section 12.05(d) if the Company makes proper provision so that
each holder of Convertible Subordinated Notes who converts a Convertible
Subordinated Note (or any portion thereof) after the date fixed for
determination of stockholders entitled to receive such distribution shall be
entitled to receive upon such conversion, in addition to the shares of Common
Stock issuable upon such conversion, the amount and kind of such distributions
that such holder would have been entitled to receive if such holder had,
immediately prior to such determination date, converted such Convertible
Subordinated Note into Common Stock.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("Trigger Event"): (i) are deemed to be transferred with such shares of Common
Stock;
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(ii) are not exercisable; and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 12.05(d) (and no adjustment to the Conversion Price
under this Section 12.05(d) shall be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to
have been distributed and an appropriate adjustment to the Conversion Price
under this Section 12.05(d) shall be made. If any such rights or warrants,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to subsequent events, upon the occurrence of each of
which such rights or warrants shall become exercisable to purchase different
securities, evidences of indebtedness or other assets, then the occurrence of
each such event shall be deemed to be such date of issuance and record date with
respect to new rights or warrants (and a termination or expiration of the
existing rights or warrants 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 with respect thereto, that was counted for
purposes of calculating a distribution amount for which an adjustment to the
Conversion Price under this Section 12.05 was made, (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 Price 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 or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Stock as of
the date of such redemption or repurchase, and (2) in the case of such rights or
warrants which shall have expired or been terminated without exercise by any
holders thereof, the Conversion Price shall be readjusted as if such rights and
warrants had not been issued.
For purposes of this Section 12.05(d) and Sections 12.05(a) and (c),
any dividend or distribution to which this Section 12.05(d) is applicable that
also includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock to which Section 12.05(c) applies (or both),
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 or rights or warrants to which Section 12.05(c)
applies (and any Conversion Price reduction required by this Section 12.05(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 or
such rights or warrants (and any further Conversion Price reduction required by
Sections 12.05(a) and (c) with respect to such dividend or distribution shall
then be made, except that (A) the Record Date of such dividend or distribution
shall be substituted as "the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution", "Record Date fixed for
such determination" and "Record Date" within the meaning of Section 12.05(a) and
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 12.05(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 12.05(a)).
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(e) If the Company shall, by dividend or otherwise, distribute
cash to all holders of its Common Stock (excluding any cash that is distributed
upon a merger or consolidation to which Section 12.06 applies or as part of a
distribution referred to in Section 12.05(d)) in an aggregate amount that,
combined together with (1) the aggregate amount of any other such all-cash
distributions to all holders of its Common Stock within the 12 months preceding
the date of payment of such distribution, and in respect of which no adjustment
pursuant to this Section 12.05(e) has been made, and (2) the aggregate of any
cash plus the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of 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 Common Stock
concluded within the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to Section 12.05(f)
has been made, exceeds 15% of the product of the Current Market Price
(determined as provided in Section 12.05(g)) 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 Price shall be reduced so that the same shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the close of business on such Record Date by a fraction (i) 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 combined amount
over such 15% and (y) the number of shares of Common Stock outstanding on the
Record Date and (ii) the denominator of which shall be equal to the Current
Market Price on such Record Date; provided, however, that if the portion of the
cash so distributed applicable to one share of Common Stock is equal to or
greater than the Current Market Price of the Common Stock on the Record Date, in
lieu of the foregoing adjustment, adequate provision shall be made so that each
holder of Convertible Subordinated Notes shall have the right to receive upon
conversion of a Convertible Subordinated Note (or any portion thereof) the
amount of cash such holder would have received had such holder converted such
Convertible Subordinated Note (or portion thereof) immediately prior to such
Record Date. If such dividend or distribution is not so paid or made, the
Conversion Price shall again be adjusted to be the Conversion Price which would
then be in effect if such dividend or distribution had not been declared. Any
cash distribution to all holders of Common Stock as to which the Company makes
the election permitted by Section 12.05(m) and as to which the Company has
complied with the requirements of such Section shall be treated as not having
been made for all purposes of this Section 12.05(e).
(f) If a tender offer made by the Company or any of its
subsidiaries for all or any portion of the Common Stock expires and such tender
offer (as amended upon the expiration thereof) requires the payment to
stockholders (based on the acceptance (up to any maximum specified in the terms
of the tender offer) of Purchased Shares (as defined below)) of an aggregate
consideration having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors) that, combined together with (1) the aggregate of the
cash plus the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a resolution of 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 Common Stock, expiring within the 12 months
preceding the expiration of such tender offer and in
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respect of which no adjustment pursuant to this Section 12.05(f) has been made
and (2) the aggregate amount of any such all-cash distributions to all holders
of the Common Stock within 12 months preceding the expiration of such tender
offer and in respect of which no adjustment pursuant to Section 12.05(e) has
been made, exceeds 15% of the product of the Current Market Price (determined as
provided in Section 12.05(g)) 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, 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 Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in effect
immediately prior to close of business on the date of the Expiration Time by a
fraction of which the numerator shall be the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration Time multiplied by
the Current Market Price of the Common Stock on the trading day next succeeding
the Expiration Time and the denominator shall be the sum of (x) the fair market
value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the terms
of the tender offer) of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y) the product of the number of
shares of Common Stock outstanding (less any Purchased Shares) on the Expiration
Time and the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, such reduction (if any) to become effective
immediately prior to the opening of business on the day following the Expiration
Time. If 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 such purchases are rescinded, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in effect
if such tender offer had not been made. If the application of this Section
12.05(f) to any tender offer would result in an increase in the Conversion
Price, no adjustment shall be made for such tender offer under this Section
12.05(f).
(g) For purposes of this Section 12.05, the following terms
shall have the meaning indicated:
(1) "closing price" with respect to any securities on
any day means the closing price on such day or, if no such sale takes place on
such day, the average of the reported high and low prices on such day, in each
case on the Nasdaq National Market or New York Stock Exchange, as applicable,
or, if such security is not listed or admitted to trading on such national
market or exchange, on the principal national securities exchange or quotation
system on which such security is quoted or listed or admitted to trading, or, if
not quoted or listed or admitted to trading on any national securities exchange
or quotation system, the average of the high and low prices of such security on
the over-the-counter market on the day in question as reported by the National
Quotation Bureau Incorporated, or a similar generally accepted reporting
service, or, if not so available, in such manner as furnished by any New York
Stock Exchange member firm selected from time to time by the Board of Directors
for that purpose, or a price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors.
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(2) "Current Market Price" means the average of the
daily closing prices per share of Common Stock for the 10 consecutive trading
days immediately prior to the date in question; provided, however, that (1) if
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 Price pursuant to Sections 12.05(a), (b), (c), (d), (e) or (f) occurs
during such 10 consecutive trading days, the closing price for each trading day
prior to the "ex" date for such other event shall be adjusted by multiplying
such closing price by the same fraction by which the Conversion Price is so
required to be adjusted as a result of such other event, (2) if the "ex" date
for any event (other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion Price pursuant to
Section 12.05(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 multiplying such closing price by the
reciprocal of the fraction by which the Conversion Price is so required to be
adjusted as a result of such other event, and (3) if 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 Sections
12.05(d) or (f), whose determination shall be conclusive and described in a
resolution of the Board of Directors) of the evidences of 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 12.05(f), the Current Market Price on any date
shall be deemed to be the average of the daily closing prices per share of
Common Stock for such day and the next two succeeding trading days; provided,
however, that if the "ex" date for any event (other than the tender offer
requiring such computation) that requires an adjustment to the Conversion Price
pursuant to Section 12.05(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 multiplying such
Closing Price by the reciprocal of the fraction by which the Conversion Price is
so required to be adjusted as a result of such other event. For purposes of this
paragraph, the term "ex" date, (1) when used with respect to any issuance or
distribution, means the first date on which the Common Stock trades 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)
when used with respect to any subdivision or combination of shares of Common
Stock, means the first date on which the Common Stock trades regular way on such
exchange or in such market after the time at which such subdivision or
combination becomes effective, and (3) when used with respect to any tender or
exchange offer means the first date on which the Common Stock trades 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
Price are called for pursuant to this Section 12.05, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 12.05 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
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(3) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's length transaction.
(4) "Record Date" shall mean, with respect to any
dividend, distribution or other transaction or event in which the holders of
Common Stock have the right to receive any cash, securities or other property or
in which the Common Stock (or other applicable security) is exchanged for or
converted into any combination of cash, securities or other property, the date
fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of
Directors or by statute, contract or otherwise).
(5) "trading day" shall mean (x) if the applicable
security is listed or admitted for trading on the New York Stock Exchange or
another national securities exchange, a day on which the New York Stock Exchange
or another national securities exchange is open for business or (y) if the
applicable security is quoted on the Nasdaq National Market, a day on which
trades may be made thereon or (z) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a Saturday or Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
(h) The Company may make such reductions in the Conversion
Price, in addition to those required by Sections 12.05(a), (b), (c), (d), (e)
and (f), as the Board of Directors considers to be advisable to avoid or
diminish any income tax to holders of Common Stock or rights to purchase Common
Stock resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
The Company from time to time may, to the extent permitted by law,
reduce the Conversion Price by any amount for any period of at least 20 days, if
the Board of Directors has made a determination that such reduction would be in
the Company's best interests, which determination shall be conclusive and
described in a resolution of the Board of Directors. The reduction in Conversion
Price shall be irrevocable during this period. Whenever the Conversion Price is
reduced pursuant to the preceding sentence, the Company shall mail to the
holders of Convertible Subordinated Notes at his or her last address appearing
on the Register of holders maintained for that purpose a notice of the reduction
at least 15 days prior to the date the reduced Conversion Price takes effect,
and such notice shall state the reduced Conversion Price and the period during
which it will be in effect.
(i) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that any adjustments which by reason of this
Section 12.05(i) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
12 shall be made by the Company and shall be made to the nearest cent or to the
nearest one hundredth of a share, as the case may be.
No adjustment need be made for a change in the par value or no par
value of the Common Stock.
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(j) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly file with the Trustee and any Conversion
Agent other than the Trustee an Officers' Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief statement of
the facts requiring such adjustment. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Price setting forth the adjusted Conversion Price and the date on
which each adjustment becomes effective and shall mail such notice of such
adjustment of the Conversion Price to each holder of Convertible Subordinated
Notes at his or her last address appearing on the Register of holders maintained
for that purpose within 20 days of the effective date of such adjustment.
Failure to deliver such notice shall not affect the legality or validity of any
such adjustment.
(k) In any case in which this Section 12.05 provides that an
adjustment shall become effective immediately after a Record Date for an event,
the Company may defer until the occurrence of such event issuing to the holder
of any Convertible Subordinated Note converted after such Record Date and before
the occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving effect to
such adjustment.
(l) For purposes of this Section 12.05, the number of shares
of Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
shall not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.
(m) In lieu of making any adjustment to the Conversion Price
pursuant to Section 12.05(e), the Company may elect to reserve an amount of cash
for distribution to the holders of Convertible Subordinated Notes upon the
conversion of the Convertible Subordinated Notes so that any such holder
converting Convertible Subordinated Notes will receive upon such conversion, in
addition to the shares of Common Stock and other items to which such holder is
entitled, the full amount of cash which such holder would have received if such
holder had, immediately prior to the Record Date for such distribution of cash,
converted its Convertible Subordinated Notes into Common Stock, together with
any interest accrued with respect to such amount, in accordance with this
Section 12.05(m). The Company may make such election by providing an Officers'
Certificate to the Trustee to such effect on or prior to the payment date for
any such distribution and depositing with the Trustee on or prior to such date
an amount of cash equal to the aggregate amount that the holders of Convertible
Subordinated Notes would have received if such holders had, immediately prior to
the Record Date for such distribution, converted all of the Convertible
Subordinated Notes into Common Stock. Any such funds so deposited by the Company
with the Trustee shall be invested by the Trustee in U.S. Government Obligations
with a maturity not more than three (3) months from the date of issuance. Upon
conversion of Convertible Subordinated Notes by a holder thereof, such holder
shall be entitled to receive, in addition to the Common Stock issuable upon
conversion, an amount of cash equal to the amount such holder would have
received if such holder had, immediately prior to the Record Date for such
distribution, converted its Convertible Subordinated Note into Common Stock,
along with such holder's pro-rata share of any accrued
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interest earned as a consequence of the investment of such funds. Promptly after
making an election pursuant to this Section 12.05(m), the Company shall give or
shall cause to be given notice to all holders of Convertible Subordinated Notes
of such election, which notice shall state the amount of cash per $1,000
principal amount of Convertible Subordinated Notes such holders shall be
entitled to receive (excluding interest) upon conversion of the Convertible
Subordinated Notes as a consequence of the Company having made such election.
SECTION 12.06 Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur: (i) any reclassification or
change of the outstanding shares of 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), (ii) any consolidation, merger 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 (iii) any sale or conveyance of the properties and assets of the Company as
an entirety 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, then 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 TIA as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required to so
comply) providing that the Convertible Subordinated Notes shall be convertible
into the kind and amount of shares of stock and other securities or property or
assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance by a holder of a number
of shares of Common Stock issuable upon conversion of the Convertible
Subordinated Notes (assuming, for such purposes, a sufficient number of
authorized shares of Common Stock available to convert all such Convertible
Subordinated Notes) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance assuming such holder of
Common Stock did not exercise his or her rights of election, if any, as to the
kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance (provided that, if
the kind or amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance is not the same
for each share of Common Stock in respect of which such rights of election have
not been exercised ("non-electing share"), then, for the purposes of this
Section 12.06, the kind and amount of securities, cash or other property
receivable upon such consolidation, merger, statutory 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
12. If, in the case of any such reclassification, change, consolidation, merger,
combination, sale or conveyance, the stock or other securities and assets
receivable thereupon by a holder of shares 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,
consolidation, merger, combination, sale or conveyance, then such supplemental
indenture shall also be executed by such other corporation and shall contain
such
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additional provisions to protect the interests of the holders of the Convertible
Subordinated Notes as the Board of Directors shall reasonably consider necessary
by reason of the foregoing.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Convertible Subordinated Notes at his
or her address appearing on the Register of holders for that purpose within 20
days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.
The above provisions of this Section 12.06 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 12.06 applies to any event or occurrence, Section 12.05
shall not apply.
SECTION 12.07 Taxes on Shares Issued.
The issue of stock certificates on conversions of Convertible
Subordinated Notes shall be made without charge to the converting holder for any
tax in respect of the issue thereof. The Company shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved in the
issue and delivery of stock in any name other than that of the holder of any
Convertible Subordinated Note converted, and the Company shall not be required
to issue or deliver any such stock certificate unless and until the person or
persons requesting the issue thereof shall have paid to the Company the amount
of such tax or shall have established to the satisfaction of the Company that
such tax has been paid.
SECTION 12.08 Reservation of Shares; Shares to Be Fully Paid; Listing of Common
Stock.
The Company shall provide, free from preemptive rights, out of its
authorized but unissued shares or shares held in treasury, sufficient shares to
provide for the conversion of the Convertible Subordinated Notes from time to
time as such Convertible Subordinated Notes are presented for conversion.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the shares of Common Stock
issuable upon conversion of the Convertible Subordinated Notes, the Company
shall take all corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue shares of such
Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock issued upon
conversion of Convertible Subordinated Notes will be fully paid and
non-assessable by the Company and free from all taxes, liens and charges with
respect to the issue thereof.
The Company further covenants that as long as the Common Stock is
quoted on the Nasdaq National Market, or its successor, the Company shall cause
all Common Stock issuable upon conversion of the Convertible Subordinated Notes
to be eligible for such quotation in accordance with, and at the times required
under, the requirements of such market, and if at any time the
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Common Stock becomes listed on the New York Stock Exchange or any other national
securities exchange, the Company shall cause all Common Stock issuable upon
conversion of the Convertible Subordinated Notes to be so listed and kept
listed.
SECTION 12.09 Responsibility of Trustee.
The Trustee shall not at any time be under any duty of responsibility
to any holders of Convertible Subordinated Notes to determine whether any facts
exist which may require any adjustment of the Conversion Price, or with respect
to the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee shall not be
accountable with respect to the validity or value (or the kind or amount) of any
shares of Common Stock, or of any securities or property, which may at any time
be issued or delivered upon the conversion of any Convertible Subordinated Note;
and the Trustee makes no representations with respect thereto. Subject to the
provisions of Section 7.01, the Trustee shall not be responsible for any failure
of the Company to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or cash upon the surrender of any
Convertible Subordinated Note for the purpose of conversion or to comply with
any of the duties, responsibilities or covenants of the Company contained in
this Article 12. Without limiting the generality of the foregoing, the Trustee
shall not have any responsibility to determine the correctness of any provisions
contained in any supplemental indenture entered into pursuant to Section 12.06
relating either to the kind or amount of shares of stock or securities or
property (including cash) receivable by holders of Convertible Subordinated
Notes upon the conversion of their Convertible Subordinated Notes after any
event referred to in such Section 12.06 or to any adjustment to be made with
respect thereto, but, subject to the provisions of Section 7.01, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, the Officers' Certificate and Opinion of Counsel
(which the Company shall be obligated to file with the Trustee prior to the
execution of any such supplemental indenture) with respect thereto.
SECTION 12.10 Notice to Holders Prior to Certain Actions.
If
(a) the Company declares a dividend (or any other distribution) on
its Common Stock (other than in cash out of retained earnings or other than a
dividend that results in an adjustment in the Conversion Price pursuant to
Section 12.05 as to which the Company has made an election in accordance with
Section 12.05(m)); or
(b) the Company authorizes the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any share of any
class of Common Stock or any other rights or warrants; or
(c) there is any reclassification of the Common Stock (other than a
subdivision or combination of outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value), or
of any consolidation or merger to which the Company is
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a party and for which approval of any stockholders of the Company is required,
or of the sale or transfer of all or substantially all of the assets of the
Company; or
(d) there is any voluntary or involuntary dissolution, liquidation
or winding-up of the Company;
then the Company shall cause to be filed with the Trustee and to be mailed to
each holder of Convertible Subordinated Notes at his or her address appearing on
the Register maintained for that purpose as promptly as possible but in any
event at least 15 days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become effective or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding-up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up.
SECTION 12.11 Restriction on Common Stock Issuable Upon Conversion
(a) Shares of Common Stock to be issued upon conversion of
Convertible Subordinated Notes prior to the effectiveness of a Shelf
Registration Statement shall be physically delivered in certificated form to the
holders converting such Securities and the certificate representing such shares
of Common Stock shall bear the Restricted Common Stock Legend unless removed in
accordance with section 12.11(c).
(b) If (i) shares of Common Stock to be issued upon conversion of a
Convertible Subordinated Note prior to the effectiveness of a Shelf Registration
Statement are to be registered in a name other than that of the holder of such
Convertible Subordinated Note or (ii) shares of Common Stock represented by a
certificate bearing the Restricted Common Stock Legend are transferred
subsequently by such holder, then, unless the Shelf Registration Statement has
become effective and such shares are being transferred pursuant to the Shelf
Registration Statement, the holder must deliver to the transfer agent for the
Common Stock a certificate in substantially the form of Exhibit E as to
compliance with the restrictions on transfer applicable to such shares of Common
Stock and neither the transfer agent nor the registrar for the Common Stock
shall be required to register any transfer of such Common Stock not so
accompanied by a properly completed certificate.
(c) Except in connection with a Shelf Registration Statement, if
certificates representing shares of Common Stock are issued upon the
registration of transfer, exchange or replacement of any other certificate
representing shares of Common Stock bearing the Restricted Common Stock Legend,
or if a request is made to remove such Restricted Common Stock Legend from
certificates representing shares of Common Stock, the certificates so issued
shall bear the Restricted Common Stock Legend, or the Restricted Common Stock
Legend shall not be removed,
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as the case may be, unless there is delivered to the Company such satisfactory
evidence, which, in the case of a transfer made pursuant to Rule 144 under the
Securities Act, may include an opinion of counsel pursuant to the laws in the
State of New York, as may be reasonably required by the Company, that 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, Rule 144
or Regulation S under the Securities Act or that such shares of Common Stock are
securities that are not "restricted" within the meaning of Rule 144 under the
Securities Act. Upon provision to the Company of such reasonably satisfactory
evidence, the Company shall cause the transfer agent for the Common Stock to
countersign and deliver certificates representing shares of Common Stock that do
not bear the legend.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed and attested, all as of the date first above written, signifying their
agreements contained in this Indenture.
AMKOR TECHNOLOGY, INC.
By /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
STATE STREET BANK AND TRUST COMPANY
By /s/ Xxxxxxx X'Xxxxxx
------------------------------------
Name: Xxxxxxx X'Xxxxxx
Title: Vice President
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EXHIBIT A
(Face of Security)
[Global Securities Legend]
[The following legend shall appear on the face of each Global Security:
THIS CONVERTIBLE SUBORDINATED NOTE IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE
COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
CONVERTIBLE SUBORDINATED NOTE FOR ALL PURPOSES.]
[The following legend shall appear on the face of each Global Security
for which The Depository Trust Company is to be the Depositary:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY THE AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OR DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR REGISTERED
CONVERTIBLE SUBORDINATED NOTES IN DEFINITIVE REGISTERED FORM IN THE LIMITED
CIRCUMSTANCES REFERRED TO IN THE INDENTURE, THIS GLOBAL SECURITY MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR
A NOMINEE OR SUCH SUCCESSOR DEPOSITARY.]
[Restricted Securities Legend]
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT
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THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO
THE SECOND ANNIVERSARY OF THE ISSUE HEREOF (OR ANY PREDECESSOR SECURITY HEREOF)
OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144
UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE
COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION
(AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (4) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION AND THAT, PRIOR TO
SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER MAY BE
OBTAINED FROM THE TRUSTEE), (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT
OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS
AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER OR (2) AN INSTITUTIONAL ACCREDITED INVESTOR AND THAT IT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3)
NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER)
REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS
SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT AS
PERMITTED BY THE SECURITIES ACT.
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No. _______ $ _________
CUSIP ______*
AMKOR TECHNOLOGY, INC.
5% CONVERTIBLE SUBORDINATED NOTE DUE 2007
promises to pay to
or registered assigns,
the principal sum of Dollars on March 15, 2007
Interest Payment Dates: March 15 and September 15, commencing September 15, 2000
Regular Record Dates: March 1 and September 1
Certificate of Authentication
This is one of the Convertible Subordinated Notes
described in the within-mentioned Indenture.
State Street Bank and Trust Company, AMKOR TECHNOLOGY,
as Trustee
By By
Authorized Signatory Title:
Dated:
(SEAL)
-------------------------------
*Global Security: 031652 AF7
Definitive Security: 031652 AG5
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(Back of Security)
AMKOR TECHNOLOGY, INC.
5% CONVERTIBLE SUBORDINATED NOTE DUE 2007
1. INTEREST. Amkor Technology, Inc., a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Convertible
Subordinated Note at the rate per annum shown above. The Company will pay
interest semi-annually in arrears on March 15 and September 15 of each year,
beginning September 15, 2000. Interest on the Convertible Subordinated Notes
will accrue from the most recent interest payment date to which interest has
been paid or, if no interest has been paid, from March 22, 2000. Interest
(including any Liquidated Damages) will be computed on the basis of a 360-day
year composed of twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest (and Liquidated
Damages, if any) on the Convertible Subordinated Notes (except defaulted
interest) to the person in whose name each Convertible Subordinated Note is
registered at the close of business on the March 1 or September 1 immediately
preceding the relevant interest payment date (each a "Regular Record Date")
(other than with respect to a Convertible Subordinated Note or portion thereof
called for redemption on a redemption date, or repurchased in connection with a
Designated Event on a repurchase date, during the period from the close of
business on a Regular Record Date to (but excluding) the next succeeding
interest payment date, in which case accrued interest (and Liquidated Damages,
if any) shall be payable (unless such Convertible Subordinated Note or portion
thereof is converted) to the holder of the Convertible Subordinated Note or
portion thereof redeemed or repurchased in accordance with the applicable
redemption or repurchase provisions of the Indenture). Holder must surrender
Convertible Subordinated Notes to a Paying Agent to collect principal payments.
The Company will pay the principal of, premium, if any, and interest (including
Liquidated Damages, if any) on the Convertible Subordinated Notes at the office
or agency of the Company maintained for such purpose, in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. Until otherwise designated by the Company, the Company's office
or agency maintained for such purpose will be the principal Corporate Trust
Office of the Trustee (as defined below). However, the Company may pay
principal, premium, if any, and interest (including Liquidated Damages, if any)
by check payable in such money, and may mail such check to the holders of the
Convertible Subordinated Notes at their respective addresses as set forth in the
Register of holders of Convertible Subordinated Notes.
3. PAYING AGENT AND REGISTRAR. State Street Bank and Trust Company
(together with any successor Trustee under the Indenture referred to below, the
"Trustee"), will act as Paying Agent and Registrar. The Company may change the
Paying Agent, Registrar or co-registrar without prior notice. Subject to certain
limitations in the Indenture, the Company or any of its subsidiaries may act in
any such capacity.
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0. INDENTURE. The Company issued the Convertible Subordinated Notes
under an Indenture dated as of March 22, 2000 (the "Indenture") between the
Company and the Trustee. The terms of the Convertible Subordinated Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code Sections 77aaa-77bbbb)
(the "TIA") as in effect on the date of the Indenture. The Convertible
Subordinated Notes are subject to, and qualified by, all such terms, certain of
which are summarized hereon, and holders are referred to the Indenture and the
TIA for a statement of such terms. The Convertible Subordinated Notes are
unsecured general obligations of the Company limited to (except as otherwise
provided in the Indenture) up to $225,000,000 in aggregate principal amount,
unless an election has been made as set forth in Article 2 of the Indenture to
increase such aggregate principal amount by an amount not to exceed $33,750,000.
Capitalized terms not defined below have the same meaning as is given to them in
the Indenture.
5. OPTIONAL AND PROVISIONAL REDEMPTION. On or after March 20, 2003, the
Company shall have the option to redeem the Convertible Subordinated Notes, in
whole or from time to time in part, at the following redemption prices
(expressed as percentages of principal amount), if redeemed during the twelve
month period beginning March 15 of each year indicated (March 20, 2003 through
March 14, 2004, in the case of the first such year) plus accrued and unpaid
interest (and Liquidated Damages, if any) to, but excluding, the date fixed for
redemption:
Year Redemption Price
---- ----------------
2003........................................................ 102.857%
2004........................................................ 102.143%
2005........................................................ 101.429%
2006........................................................ 100.714%
and 100% at March 15, 2007.
After September 20, 2001 and prior to March 20, 2003, the Company may
redeem the Convertible Subordinated Notes at the Company's option in whole or in
part (in any integral multiple of $1,000), at any time from time to time (a
"Provisional Redemption") at a redemption price equal to 103.571% of the
principal amount of the Convertible Subordinated Notes redeemed plus accrued and
unpaid interest (including Liquidated Damages), if any, to but excluding the
date of redemption (the "Provisional Redemption Date") if the closing price of
the Common Stock has equaled or exceeded 150% of the Conversion Price then in
effect for at least 20 trading days within a period of 30 consecutive trading
days prior to the date of mailing of the notice of Provisional Redemption (the
"Notice Date").
Upon any such Provisional Redemption, the Company shall make an
additional payment in cash (the "Make-Whole Payment") with respect to the
Convertible Subordinated Notes called for
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redemption in an amount equal to the present value of the aggregate value of the
interest payments and Liquidated Damages, if any, that would thereafter have
been payable on the Convertible Subordinated Notes from the Provisional
Redemption Date to but excluding March 20, 2003 (the "Additional Period"). The
present value will be calculated by the Company (which determination shall be
conclusive absent manifest error) using the bond equivalent yield on U.S.
Treasury notes or bills having a term nearest in length to that of the
Additional Period as of the day immediately preceding Notice Date. The Company
shall make the Make-Whole Payment on all Convertible Subordinated Notes called
for Provisional Redemption, including those Convertible Subordinated Notes
converted into Common Stock between the Notice Date and the Provisional
Redemption Date.
Notice of redemption will be mailed by first class mail at least 15
days (in the case of a Provisional Redemption at least 30 days) but not more
than 60 days before the date fixed for redemption to each holder of Convertible
Subordinated Notes to be redeemed at his or her registered address. Convertible
Subordinated Notes in denominations larger than $1,000 may be redeemed in part
but only in integral multiples of $1,000. If less than all the Convertible
Subordinated Notes are to be redeemed, the Trustee shall select the Convertible
Subordinated Notes to be redeemed by a method that complies with the
requirements of the principal national securities exchange, if any, on which the
Convertible Subordinated Notes are listed or quoted, or, if the Convertible
Subordinated Notes are not so listed, on a pro rata basis by lot or by any other
method that the Trustee considers fair and appropriate. On and after the
redemption date, interest (and Liquidated Damages, if any) ceases to accrue on
Convertible Subordinated Notes or portions thereof called for redemption (unless
the Company defaults in the payment of the redemption price). If this
Convertible Subordinated Note is redeemed on a date which is also an Interest
Payment Date, the interest payment (and Liquidated Damages, if any) due on such
date will be paid to the person in whose name this Convertible Subordinated Note
is registered at the close of business on such record date.
6. DESIGNATED EVENT. Upon a Designated Event, the Company shall make a
Designated Event Offer to repurchase all outstanding Convertible Subordinated
Notes at a price equal to 101% of the aggregate principal amount of the
Convertible Subordinated Notes, plus accrued and unpaid interest (and Liquidated
Damages, if any) to, but excluding, the date of repurchase, such offer to be
made as provided in the Indenture. To accept the Designated Event Offer, the
holder hereof must comply with the terms thereof, including surrendering this
Convertible Subordinated Note, with the "Option of Holder to Elect Repurchase"
portion hereof completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent, at the address specified in the notice of the
Designated Event Offer mailed to holders as provided in the Indenture, prior to
termination of the Designated Event Offer.
7. RELATED TRANSACTIONS EVENT. Upon a Related Transactions Event, the
Company shall make a Related Transactions Offer to repurchase all outstanding
Convertible Subordinated Notes at a price equal to 101% of the aggregate
principal amount of the Convertible Subordinated Notes, plus accrued and unpaid
interest (and Liquidated Damages, if any) to, but excluding, the date of
repurchase, such offer to be made as provided in the Indenture. To accept the
Related Transactions Offer, the holder hereof must comply with the terms
thereof, including surrendering this Convertible Subordinated Note, with the
"Option of Holder to Elect Repurchase"
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portion hereof completed, to the Company, a depositary, if appointed by the
Company, or a Paying Agent, at the address specified in the notice of the
Related Transactions Offer mailed to holders as provided in the Indenture, prior
to termination of the Related Transactions Offer.
8. SUBORDINATION. The Company's payment of the principal of, premium,
if any, and interest (including Liquidated Damages, if any) on the Convertible
Subordinated Notes is subordinated to the prior payment in full of the Company's
Senior Debt as set forth in the Indenture. Each holder of Convertible
Subordinated Notes by his or her acceptance hereof covenants and agrees that all
payments of the principal of, premium, if any, and interest (including
Liquidated Damages, if any) on the Convertible Subordinated Notes by the Company
shall be subordinated in accordance with the provisions of Article 11 of the
Indenture, and each holder of Convertible Subordinated Notes accepts and agrees
to be bound by such provisions.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Convertible Subordinated
Notes are in registered form without coupons in denominations of $1,000 and
integral multiples of $1,000. The transfer of Convertible Subordinated Notes may
be registered and Convertible Subordinated Notes may be exchanged as provided in
the Indenture. As a condition of transfer, the Registrar and the Trustee may
require a holder, among other things, to furnish appropriate endorsements and
transfer documents and the Company may require a holder to pay any taxes and
fees required by law or permitted by the Indenture. The Company or the Registrar
need not exchange or register the transfer of any Convertible Subordinated Note
or portion of a Convertible Subordinated Note selected for redemption or
submitted for repurchase. Also, the Company or the Registrar need not exchange
or register the transfer of any Convertible Subordinated Note for a period of 15
days before a selection of Convertible Subordinated Notes to be redeemed.
10. PERSONS DEEMED OWNERS. The registered holder of a Convertible
Subordinated Note may be treated as its owner for all purposes.
11. AMENDMENTS AND WAIVERS. Subject to certain exceptions, the
Indenture or the Convertible Subordinated Notes may be amended or supplemented
with the consent of the holders of at least a majority in principal amount of
the then outstanding Convertible Subordinated Notes and any existing default may
be waived with the consent of the holders of a majority in principal amount of
the then outstanding Convertible Subordinated Notes.
Without the consent of any holder, the Indenture or the Convertible
Subordinated Notes may be amended to: (a) cure any ambiguity or correct or
supplement any defective or inconsistent provision contained in the Indenture,
or make any other changes in the provisions of the Indenture which the Company
and the Trustee may deem necessary or desirable provided such amendment does not
materially and adversely affect the legal rights under the Indenture of the
holders of Convertible Subordinated Notes; (b) provide for uncertificated
Convertible Subordinated Notes in addition to or in place of certificated
Convertible Subordinated Notes; (c) evidence the succession of another person to
the Company and providing for the assumption by such successor of the covenants
and obligations of the Company thereunder and in the Convertible Subordinated
Notes as permitted by Section 5.01 of the Indenture; (d) provide for conversion
rights and/or repurchase rights of holders of Convertible Subordinated Notes in
the event of consolidation, merger or sale of all or
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substantially all of the assets of the Company as required to comply with
Sections 5.01 and/or 12.06 of the Indenture; (e) reduce the Conversion Price;
(f) make any change that would provide any additional rights or benefits to the
holders of Convertible Subordinated Notes or that does not adversely affect the
legal rights under the Indenture of any such holder; or (g) comply with the
requirements of the Commission in order to effect or maintain the qualification
of the Indenture under the TIA.
Without the consent of each holder affected, an amendment or waiver may
not (with respect to any Convertible Subordinated Notes held by a non-consenting
holder): (a) reduce the principal amount of Convertible Subordinated Notes whose
holders must consent to an amendment, supplement or waiver; (b) reduce the
principal of, or premium on, or change the fixed maturity of any Convertible
Subordinated Note or, except as permitted pursuant to clause (a) of the
immediately preceding paragraph, alter the provisions with respect to the
redemption of the Convertible Subordinated Notes; (c) reduce the rate of or
change the time for payment of interest, including defaulted interest, or
Liquidated Damages on any Convertible Subordinated Notes; (d) waive a Default or
Event of Default in the payment of principal of or premium, if any, or interest
or Liquidated Damages on the Convertible Subordinated Notes (except a rescission
of acceleration of the Convertible Subordinated Notes by the holders of at least
a majority in aggregate principal amount of the Convertible Subordinated Notes
and a waiver of the payment default that resulted from such acceleration); (e)
make the principal of, or premium, if any, or interest or Liquidated Damages on,
any Convertible Subordinated Note payable in money other than as provided for in
the Indenture and in the Convertible Subordinated Notes; (f) make any change in
the provisions of the Indenture relating to waivers of past Defaults or the
rights of holders of Convertible Subordinated Notes to receive payments of
principal of, premium, if any, or interest or Liquidated Damages on the
Convertible Subordinated Notes; (g) waive a redemption payment with respect to
any Convertible Subordinated Note; (h) make any change in the foregoing
amendment and waiver provisions, or (i) except as permitted by the Indenture
(including Section 9.01(a)), increase the Conversion Price or modify the
provisions of the Indenture relating to conversion of the Convertible
Subordinated Notes in a manner adverse to the holders thereof. In addition, any
amendment to the provisions of Article 11 of the Indenture (which relate to
subordination) will require the consent of the holders of at least 75% in
aggregate principal amount of the Convertible Subordinated Notes then
outstanding if such amendment would adversely affect the rights of holders of
Convertible Subordinated Notes.
12. DEFAULTS AND REMEDIES. An Event of Default is: (a) default in
payment of the principal of, or premium, if any, on the Convertible Subordinated
Notes, when due at maturity, upon repurchase, upon acceleration or otherwise,
whether or not such payment is prohibited by the subordination provisions of the
Indenture; (b) default for 30 days or more in payment of any installment of
interest or Liquidated Damages on the Convertible Subordinated Notes, whether or
not such payment is prohibited by the subordination provisions of the Indenture;
(c) default by the Company for 60 days or more after notice in the observance or
performance of any other covenants in the Indenture; (d) default in the payment
of the Designated Event Payment or the Related Transactions Payment in respect
of the Convertible Subordinated Notes on the date therefor, whether or not such
payment is prohibited by the subordination provisions of the Indenture; (e)
failure to maintain cash and cash equivalents in accordance with the Indenture
or to provide timely notice of a
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Designated Event or a Related Transactions Event; (f) failure of the Company or
any Material Subsidiary to make any payment at maturity, including any
applicable grace period, in respect of indebtedness for borrowed money of, or
guaranteed or assumed by, the Company or any Material Subsidiary which payment
is in an amount in excess of $20,000,000 and continuance of such failure for 30
days after notice; (g) default by the Company or any Material Subsidiary with
respect to any such indebtedness, which default results in the acceleration of
such indebtedness of an amount in excess of $20,000,000 without such
indebtedness having been paid or discharged or such acceleration having been
cured, waived, rescinded, or annulled for 30 days after notice; or (h) certain
events involving bankruptcy, insolvency or reorganization of the Company or any
Material Subsidiary. If an Event of Default occurs and is continuing, the
Trustee or the holders of at least 25% in principal amount of the then
outstanding Convertible Subordinated Notes may declare the unpaid principal of,
premium, if any, and accrued and unpaid interest and Liquidated Damages, if any,
on all Convertible Subordinated Notes then outstanding to be due and payable
immediately, except that in the case of an Event of Default arising from certain
events of bankruptcy, insolvency, or reorganization with respect to the Company
all outstanding Convertible Subordinated Notes become due and payable without
further action or notice. Holders of Convertible Subordinated Notes may not
enforce the Indenture or the Convertible Subordinated Notes except as provided
in the Indenture. The Trustee may require an indemnity satisfactory to it before
it enforces the Indenture or the Convertible Subordinated Notes. Subject to
certain limitations, holders of a majority in principal amount of the then
outstanding Convertible Subordinated Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from holders notice of
any continuing default (except a default in payment of principal, premium, if
any, or interest or Liquidated Damages, if applicable) if it determines that
withholding notice is in their interests. The Company must furnish annual
compliance certificates to the Trustee.
13. TRUSTEE DEALINGS WITH THE COMPANY. The Trustee or any of its
Affiliates, in their individual or any other capacities, may make or continue
loans to or guaranteed by, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not Trustee.
14. NO RECOURSE AGAINST OTHERS. No director, officer, employee or
stockholder, as such, of the Company shall have any liability for any
obligations of the Company under the Convertible Subordinated Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each holder by accepting a Convertible
Subordinated Note waives and releases all such liability. The waiver and release
are part of the consideration for the Convertible Subordinated Notes.
15. AUTHENTICATION. This Convertible Subordinated Note shall not be
valid until authenticated by the manual signature of the Trustee or an
authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name of a
holder or an assignee, such as: TEN CO = 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 Gifts to Minors Act.
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00. CONVERSION. Subject to and upon compliance with the provisions of
the Indenture, the registered holder of this Convertible Subordinated Note has
the right at any time on or before the close of business on the last trading day
prior to the Maturity Date (or in case this Convertible Subordinated Note or any
portion hereof is (a) called for redemption prior to such date, before the close
of business on the last trading day preceding the date fixed for redemption
(unless the Company defaults in payment of the redemption price in which case
the conversion right will terminate at the close of business on the date such
default is cured) or (b) subject to a duly completed election for repurchase, on
or before the close of business on the Designated Event Offer Termination Date
(unless the Company defaults in payment due upon repurchase or such holder
elects to withdraw the submission of such election to repurchase ) to convert
the principal amount hereof, or any portion of such principal amount which is
$1,000 or an integral multiple thereof, into that number of fully paid and
non-assessable shares of common stock of the Company ("Common Stock") obtained
by dividing the principal amount of the Convertible Subordinated Note or portion
thereof to be converted by the conversion price of $57.34 per share, as adjusted
from time to time as provided in the Indenture (the "Conversion Price"), upon
surrender of this Convertible Subordinated Note to the Company at the office or
agency maintained for such purpose (and at such other offices or agencies
designated for such purpose by the Company), accompanied by written notice of
conversion duly executed (and if the shares of Common Stock to be issued on
conversion are to be issued in any name other than that of the registered holder
of this Convertible Subordinated Note by instruments of transfer, in form
satisfactory to the Company, duly executed by the registered holder or its duly
authorized attorney) and, in case such surrender shall be made during the period
from the close of business on the Regular Record Date immediately preceding any
Interest Payment Date through the close of business on the last trading day
immediately preceding such Interest Payment Date (unless this Convertible
Subordinated Note or the portion thereof being converted has been called for
redemption on a date in such period), also accompanied by payment, in funds
acceptable to the Company, of an amount equal to the interest and Liquidated
Damages, if any, otherwise payable on such Interest Payment Date on the
principal amount of this Convertible Subordinated Note then being converted.
Subject to the aforesaid requirement for a payment in the event of conversion
after the close of business on a Regular Record Date immediately preceding an
Interest Payment Date, no adjustment shall be made on conversion for interest or
Liquidated Damages accrued hereon or for dividends on Common Stock delivered on
conversion. The right to convert this Convertible Subordinated Note is subject
to the provisions of the Indenture relating to conversion rights in the case of
certain consolidations, mergers, or sales or transfers of substantially all the
Company's assets.
The Company shall not issue fractional shares or scrip representing
fractions of shares of Common Stock upon any such conversion, but shall make an
adjustment therefor in cash based upon the current market price of the Common
Stock on the last trading day prior to the date of conversion.
18. REGISTRATION AGREEMENT. The holder of this Convertible Subordinated
Note is entitled to the benefits of a Registration Agreement, dated March 22,
2000, between the Company and the Initial Purchasers (the "Registration
Agreement"). Pursuant to the Registration Agreement the Company has agreed for
the benefit of the holders of the Convertible Subordinated Notes and the Common
Stock issued and issuable upon conversion of the Convertible Subordinated Notes,
that
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(i) it will, at its cost, within 90 days after the Issue Date, file a shelf
registration statement (the "Shelf Registration Statement") with the Securities
and Exchange Commission (the "Commission") with respect to resales of the
Convertible Subordinated Notes and the Common Stock issuable upon conversion
thereof, (ii) the Company will use its best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission under the
Securities Act within 180 days after the Issue Date and (iii) the Company will
keep such Shelf Registration Statement continuously effective under the
Securities Act until the earliest of (a) the second anniversary of the Issue
Date or, if later, the second anniversary of the last date on which any
Convertible Subordinated Notes are issued upon exercise of the Initial
Purchasers' over-allotment option, (b) the date on which the Convertible
Subordinated Notes or the Common Stock issuable upon conversion thereof may be
sold to Persons who are not "affiliates" (as defined in Rule 144) of the Company
pursuant to paragraph (k) of Rule 144 (or any successor provision) promulgated
by the Commission under the Securities Act, (c) the date as of which the
Convertible Subordinated Notes or the Common Stock issuable upon conversion
thereof have been transferred pursuant to Rule 144 under the Securities Act (or
any similar provision then in force) and (d) the date as of which all the
Convertible Subordinated Notes or the Common Stock issuable upon conversion
thereof have been sold pursuant to such Shelf Registration Statement.
If the Shelf Registration Statement (i) is not filed with the
Commission on or prior to 90 days, or has not been declared effective by the
Commission within 180 days, after the Issue Date or (ii) is filed and declared
effective but shall thereafter cease to be effective (without being succeeded
immediately by a replacement shelf registration statement filed and declared
effective) or cease to be usable (including, without limitation, as a result of
a Suspension Period as defined below) for the offer and sale of Transfer
Restricted Securities (as defined below) for a period of time (including any
Suspension Period) which shall exceed 60 days in the aggregate in any 12-month
period during the period beginning on the Issue Date and ending on the second
anniversary of the Issue Date or, if later, the second anniversary of the last
date on which any Convertible Subordinated Notes are issued upon exercise of the
Initial Purchasers' over-allotment option (each such event referred to in
clauses (i) and (ii) being referred to herein as a "Registration Default"), the
Company will pay liquidated damages ("Liquidated Damages") to each holder of
Transfer Restricted Securities which has complied with its obligations under the
Registration Agreement. The amount of Liquidated Damages payable during any
period in which a Registration Default shall have occurred and be continuing is
that amount which is equal to one-quarter of one percent (25 basis points) per
annum per $1,000 principal amount of Securities and $2.50 per annum per 17.4398
shares of Common Stock (subject to adjustment from time to time in the event of
a stock split, stock recombination, stock dividend and the like) constituting
Transfer Restricted Securities for the first 90 days during which a Registration
Default has occurred and is continuing and one-half of one percent (50 basis
points) per annum per $1,000 principal amount of Securities and $5.00 per annum
per 17.4398 shares of Common Stock (subject to adjustment as set forth above)
constituting Transfer Restricted Securities for any additional days during which
such Registration Default has occurred and is continuing. The Company will pay
all accrued Liquidated Damages by wire transfer of immediately available funds
or by federal funds check on each Damages Payment Date (as defined in the
Registration Agreement), and Liquidated Damages will be calculated on the basis
of a 360-day year
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consisting of twelve 30-day months. Following the cure of a Registration
Default, Liquidated Damages will cease to accrue with respect to such
Registration Default.
"Transfer Restricted Securities" means each Convertible Subordinated
Note and each share of Common Stock issued on conversion thereof until the date
on which such Convertible Subordinated Note or share, as the case may be, (i)
has been transferred pursuant to the Shelf Registration Statement or another
registration statement covering such Convertible Subordinated Note or share
which has been filed with the Commission pursuant to the Securities Act, in
either case after such registration statement has become and while such
registration statement is effective under the Securities Act, (ii) has been
transferred pursuant to Rule 144 under the Securities Act (or any similar
provision then in force), or (iii) may be sold or transferred pursuant to Rule
144(k) under the Securities Act (or any similar provision then in force).
Pursuant to the Registration Agreement, the Company may suspend the use
of the prospectus which is a part of the Shelf Registration Statement for a
period not to exceed 30 days in any three-month period or for three periods not
to exceed an aggregate of 90 days in any twelve-month period under certain
circumstances (each, a "Suspension Period"); provided that the existence of a
Suspension Period will not prevent the occurrence of a Registration Default or
otherwise limit the obligation of the Company to pay Liquidated Damages.
The above description of certain provisions of the Registration
Agreement is qualified by reference to, and is subject in its entirety to, the
more complete description thereof contained in the Registration Agreement.
The Company will furnish to any holder upon written request and without
charge a copy of the Indenture and the Registration Agreement. Requests may be
made to: Corporate Secretary, Amkor Technology, Inc., 0000 Xxxxxxxxxx Xxxxx,
Xxxx Xxxxxxx, XX 00000.
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FORM OF CONVERSION NOTICE
To: AMKOR TECHNOLOGY, INC.
The undersigned registered owner of the Convertible Subordinated Note
hereby irrevocably exercises the option to convert this Convertible Subordinated
Note, or portion hereof (which is $1,000 or an integral multiple thereof) below
designated, into shares of Common Stock of Amkor Technology, Inc. in accordance
with the terms of the Indenture referred to in this Convertible Subordinated
Note, and directs that the shares issuable and deliverable upon the conversion,
together with any check in payment for fractional shares and Convertible
Subordinated Notes representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name has
been indicated below. If shares or any portion of this Convertible Subordinated
Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid by the undersigned on account of
interest, Liquidated Damages and taxes accompanies this Convertible Subordinated
Note.
Dated:
Fill in for registration of shares if to be delivered, and
Convertible Subordinated Notes if to be issued, other than
to and in the name of the registered holder
(Please Print):
______________________________________
(Name)
______________________________________
(Xxxxxx Xxxxxxx)
______________________________________
(City, State and Zip Code)
Signature Guarantee:___________________________
_______________________________________________
_______________________________________________
_______________________________________________
Signature(s)
Principal amount to be converted (if less than all):
$___,000
_______________________________________________________
Social Security or other Taxpayer Identification Number
[Signatures must be guaranteed by an eligible Guarantor Institution (banks,
brokers, dealers, savings and loan associations and credit unions) with
membership in an approved signature guarantee medallion program pursuant to
Securities and Exchange Commission Rule 17Ad-15 if shares are to be issued, or
Convertible Subordinated Notes are to be delivered, other than to and in the
name of the registered holder(s).]
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ASSIGNMENT FORM
To assign this Convertible Subordinated Note, fill in the form below:
(I) or (we) assign and transfer this Convertible Subordinated Note to
___________________________________________________
(Insert assignee's social security or tax I.D. no.)
___________________________________________________
___________________________________________________
___________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ agent to transfer
this Convertible Subordinated Note on the books of the Company. The agent may
substitute another to act for him.
Your Signature: ______________________________________________
(Sign exactly as your name appears on the
other side of this Convertible Subordinated Note)
Date: __________________________
Medallion Signature Guarantee: _________________________________
[FOR INCLUSION ONLY IF THIS CONVERTIBLE SUBORDINATED NOTE BEARS A RESTRICTED
SECURITIES LEGEND] In connection with any transfer of any of the Convertible
Subordinated Notes evidenced by this certificate which are "restricted
securities" (as defined in Rule 144 (or any successor thereto) under the
Securities Act), the undersigned confirms that such Convertible Subordinated
Notes are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
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(3) [ ] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933) that has furnished to the Trustee a signed letter
containing certain representations and agreements (the
form of which letter can be obtained from the Trustee); or
(5) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the Registrar will refuse to
register any of the Convertible Subordinated Notes evidenced by this
certificate in the name of any person other than the registered holder
thereof; provided, however, that if box (3), (4) or (5) is checked, the
Trustee may require, prior to registering any such transfer of the
Convertible Subordinated Notes, such certifications and other
information, and if box (5) is checked such legal opinions, as the
Company has reasonably requested in writing, by delivery to the Trustee
of a standing letter of instruction, to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of
1933; provided that this paragraph shall not be applicable to any
Convertible Subordinated Notes which are not "restricted securities"
(as defined in Rule 144 (or any successor thereto) under the Securities
Act).
Your Signature: ______________________________________________
(Sign exactly as your name appears on the
other side of this Convertible Subordinated Note)
Date: __________________________
Medallion Signature Guarantee: _________________________________
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OPTION OF HOLDER TO ELECT REPURCHASE
If you wish to have this Convertible Subordinated Note repurchased by
the Company pursuant to Section 4.06 or 4.09 of the Indenture, as the case may
be, check the Box:
If you wish to have a portion of this Convertible Subordinated Note
purchased by the Company pursuant to Section 4.06 of the Indenture, state the
amount (in multiples of $1,000): $_____.
Date: Your Signature:
(Sign exactly as your name appears on the other side of this Convertible
Subordinated Note)
Medallion Signature Guarantee:
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EXHIBIT B
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
FROM GLOBAL SECURITY OR DEFINITIVE SECURITY
TO DEFINITIVE SECURITY
(Transfers pursuant to ss. 2.06(a)(i) or ss. 2.06(a)(ii) of the Indenture)
State Street Bank and Trust Company, as Registrar
Attn: Corporate Trust Department
Re: Amkor Technology, Inc. 5% Convertible Subordinated Notes
Due 2007 (the "Convertible Subordinated Notes)
Reference is hereby made to the Indenture dated as of March 22, 2000
(the "Indenture") between Amkor Technology, Inc. and State Street Bank and Trust
Company, as Trustee. Capitalized terms used but not defined herein shall have
the meanings given them in the Indenture.
This letter relates to U.S. $__________ aggregate principal amount of
Convertible Subordinated Notes which are held [in the form of a [Definitive]
[Global Security (CUSIP No. _____________)]* in the name of [name of transferor]
(the "Transferor") to effect the transfer of the Convertible Subordinated Notes.
In connection with such request, and in respect of such Convertible
Subordinated Notes, the Transferor does hereby certify that such Convertible
Subordinated Notes are being transferred in accordance with (i) the transfer
restrictions set forth in the Convertible Subordinated Notes and the Indenture
and (ii) to a transferee that the Transferor reasonably believes is an
institutional "accredited investor" (as defined in Rule 501(a)(1), (2), (3) or
(7) of Regulation D under the U.S. Securities Act of 1933, as amended) (an
"Institutional Accredited Investor") which is acquiring such Convertible
Subordinated Notes for its own account or for one or more accounts, each of
which is an Institutional Accredited Investors, over which it exercises sole
investment discretion and (iii) in accordance with applicable securities laws of
any state of the United States.
[Name of Transferor],
By:
Name:
Title:
Dated:
--------------------
*Insert, if appropriate.
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EXHIBIT C
FORM OF ACCREDITED INVESTOR TRANSFEREE CERTIFICATE
(Transfers pursuant to ss. 2.06(a)(i) and ss. 2.06(a)(ii))
State Street Bank and Trust Company, as Registrar
Attn: Corporate Trust Department
Re: Amkor Technology, Inc. 5% Convertible Subordinated Notes
Due 2007 (the "Convertible Subordinated Notes")
Reference is hereby made to the Indenture dated as of March 22, 2000
(the "Indenture") between Amkor Technology, Inc., a Delaware corporation (the
"Company"), and State Street Bank and Trust Company, as Trustee (the "Trustee").
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
In connection with our proposed purchase of $___________________
aggregate principal amount of the Convertible Subordinated Notes, which are
convertible into shares of common stock ("Common Stock") of the Company, we
confirm that:
We understand that the Convertible Subordinated Notes and the Common Stock
issuable upon conversion thereof have not been registered under the Securities
Act of 1933, as amended (the "Securities Act"), and may not be sold except as
permitted in the following sentence. We understand and agree, on our own behalf
and on behalf of any accounts for which we are acting as hereinafter stated, (x)
that such Convertible Subordinated Notes are being transferred to us in a
transaction not involving any public offering within the meaning of the
Securities Act, (y) that if we should resell, pledge or otherwise transfer any
such Convertible Subordinated Notes or any shares of Common Stock issuable upon
conversion thereof prior to the later of (I) the expiration of the holding
period under Rule 144(k) (or any successor thereto) under the Securities Act
which is applicable to such Convertible Subordinated Notes or shares of Common
Stock, as the case may be, or (II) within three months after we cease to be an
affiliate (within the meaning of Rule 144 under the Securities Act) of the
Company, such Convertible Subordinated Notes or the Common Stock issuable upon
conversion thereof may be resold, pledged or transferred only (i) to the
Company, (ii) so long as such Convertible Subordinated Notes are eligible for
resale pursuant to Rule 144A under the Securities Act ("Rule 144A"), to a person
whom we reasonably believe is a "qualified institutional buyer" (as defined in
Rule 144A) ("QIB") that purchases for its own account or for the account of a
QIB to whom notice is given that the resale, pledge or transfer is being made in
reliance on Rule 144A (as indicated by the box checked by the transferor on the
Assignment Form on the reverse of the certificate for the Convertible
Subordinated Notes), it being understood that the Common Stock is not eligible
for resale pursuant to Rule 144A, (iii) in an offshore transaction (as defined
in Regulation S under the Securities Act) in accordance with Regulation S under
the Securities Act (as indicated by the box checked by the transferor on the
Assignment Form on the reverse of the certificate for the Convertible
Subordinated Notes or on a comparable Assignment Form for the Common Stock
issuable upon conversion thereof), (iv) to an institution that is an
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"accredited investor" as defined in Rule 501 (a) (1), (2), (3) or (7) under the
Securities Act (an "Institutional Accredited Investor") (as indicated by the box
checked by the transferor on the Assignment Form on the reverse of the
certificate for the Convertible Subordinated Notes or on a comparable Assignment
Form for the Common Stock issuable upon conversion thereof) that is acquiring
the securities for its own account or for the account of one or more other
Institutional Accredited Investors over which it exercises sole investment
discretion and that prior to such transfer, delivers a signed letter to the
Company and the Trustee (or the transfer agent in the case of Common Stock
issuable upon conversion thereof) certifying that it and each such account is
such an Institutional Accredited Investor and is acquiring the Convertible
Subordinated Notes or the Common Stock issuable upon conversion thereof for
investment purposes and not for distribution and agreeing to the restrictions on
transfer of the Convertible Subordinated Notes or the Common Stock issuable upon
conversion thereof, (v) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 (if applicable) under the Securities Act (as
indicated by the box checked transferor on the Assignment Form on the reverse of
the certificate for the Convertible Subordinated Notes or a comparable
Assignment Form for the Common Stock issuable upon conversion thereof), or (vi)
pursuant to an effective registration statement under the Securities Act, in
each case in accordance with any applicable securities laws of any state of the
United States, and we will notify any purchaser of the Convertible Subordinated
Notes or the Common Stock issuable upon conversion thereof from us of the above
resale restrictions, if then applicable. We further understand that in
connection with any transfer of the Convertible Subordinated Notes or the Common
Stock issuable upon conversion thereof (other than a transfer pursuant to clause
(vi) above) by us that the Company and the Trustee (or the transfer agent in the
case of Common Stock issuable upon conversion thereof) may request, and if so
requested we will furnish, such certificates and other information and, in the
case of a transfer pursuant to clause (v) above, a legal opinion as they may
reasonably require to confirm that any such transfer complies with the foregoing
restrictions. Finally, we understand that in any case we will not directly or
indirectly engage in any hedging transactions with regard to the Convertible
Subordinated Notes or the Common Stock issuable upon conversion of the
Convertible Subordinated Notes except as permitted by the Securities Act.
2. We are able to fend for ourselves in connection with our purchase of
the Convertible Subordinated Notes, we have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Convertible Subordinated Notes, and we and any
accounts for which we are acting are each able to bear the economic risk of our
or its investment and can afford the complete loss of such investment.
3. We understand that the Company and others will rely upon the truth
and accuracy of the foregoing acknowledgments, representations, agreements and
warranties and we agree that if any of the acknowledgments, representations,
agreements or warranties made or deemed to have been made by us by our purchase
of the Convertible Subordinated Notes, for our own account or for one or more
accounts as to each of which we exercise sole investment discretion, are no
longer accurate, we shall promptly notify the Company.
4. With respect to the certificates representing Convertible
Subordinated Notes we are purchasing, we understand that such certificates will
be in definitive registered form and that the
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notification requirement referred to in 1 above requires that, until the
expiration of the holding period with respect to sales of the Convertible
Subordinated Notes under clause (k) of Rule 144 under the Securities Act, such
Convertible Subordinated Notes will bear a legend substantially to the following
effect:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE EXPIRATION OF THE
SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO)
OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144
UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE
COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION
(AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (4) TO AN INSTITUTION THAT IS AN
"ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1), (2), (3) OR (7) UNDER THE
SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR") THAT IS ACQUIRING THIS
SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION AND THAT, PRIOR TO
SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE TRUSTEE A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS
ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER MAY BE
OBTAINED FROM THE TRUSTEE), (5) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT
OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS
AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A QUALIFIED
INSTITUTIONAL BUYER OR (2) AN INSTITUTIONAL ACCREDITED INVESTOR AND THAT IT IS
HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION OR (3)
NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER)
REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT,
DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THIS
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SECURITY OR ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT AS
PERMITTED BY THE SECURITIES ACT."
5. With respect to certificates representing shares of Common Stock
issuable upon conversion of the Convertible Subordinated Notes, we understand
that the notification requirement referred to in 1 above requires that, until
the expiration of the holding period with respect to sales of such Common Stock
under clause (k) of Rule 144 under the Securities Act, such certificates will
bear a legend substantially to the effect set forth as Exhibit D to the
Indenture and that a copy of such legend may be obtained from the Trustee.
6. We are acquiring the Convertible Subordinated Notes purchased by us
for investment purposes, and not for distribution, for our own account or for
one or more accounts as to each of which we exercise sole investment discretion
and we are and each such account is an Institutional Accredited Investor.
7. You and the Company are entitled to rely on this letter and you and
the Company are irrevocably authorized to produce this letter or a copy hereof
to any interested party in any administrative or legal proceeding or official
inquiry with respect to the matters covered hereby.
Very truly yours,
(Name of Purchaser)
By:
Dated:
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XXXXXXX X
XXXX XX XXXXXXXXXX XXXXXX STOCK LEGEND
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE EXPIRATION OF THE
SECOND ANNIVERSARY OF THE ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO)
OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF RULE 144
UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE MONTHS
PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE, OTHER THAN (1) TO THE
COMPANY, (2) IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE
SECURITIES ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (3) TO
AN INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a)(1),
(2), (3) OR (7) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED
INVESTOR") THAT IS ACQUIRING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT FOR
DISTRIBUTION, AND THAT, PRIOR TO SUCH TRANSFER, DELIVERS TO THE COMPANY AND THE
TRANSFER AGENT A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED HEREBY (THE
FORM OF WHICH LETTER MAY BE OBTAINED FROM THE COMPANY OR THE TRANSFER AGENT),
(4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED
BY RULE 144 (IF APPLICABLE) UNDER THE SECURITIES ACT OR (5) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES
FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) AN INSTITUTIONAL ACCREDITED
INVESTOR AND THAT IT IS HOLDING THIS SECURITY FOR INVESTMENT PURPOSES AND NOT
FOR DISTRIBUTION OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED STATES
WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH
(k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE THE
HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY HEDGING
TRANSACTION WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES
ACT."
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EXHIBIT E
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OF RESTRICTED COMMON STOCK
(Transfers pursuant to ss. 12.11(c) of the Indenture)
[NAME AND ADDRESS OF COMMON STOCK TRANSFER AGENT]
Re: Amkor Technology, Inc. 5% Convertible Subordinated Notes
Due 2007 (the "Convertible Subordinated Notes")
Reference is hereby made to the Indenture dated as of March 22, 2000
(the "Indenture") between Amkor Technology, Inc. and State Street Bank and Trust
Company, as Trustee. Capitalized terms used but not defined herein shall have
the meanings given them in the Indenture.
This letter relates to _________ shares of Common Stock represented by
the accompanying certificate(s) that were issued upon conversion of Convertible
Subordinated Notes and which are held in the name of [name of transferor] (the
"Transferor") to effect the transfer of such Common Stock.
In connection with the transfer of such shares of Common Stock, the
undersigned confirms that such shares of Common Stock are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(3) [ ] to an institutional "accredited investor" (as defined in
Rule 501(a)(1), (2), (3) or (7) under the Securities Act
of 1933) that has furnished to the transfer agent a signed
letter containing certain representations and agreements
(the form of which letter can be obtained from the Company
or transfer agent); or
(4) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
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Unless one of the boxes is checked, the transfer agent will refuse to
register any of the Common Stock evidenced by this certificate in the name of
any person other than the registered holder thereof; provided, however, that if
box (2), (3) or (4) is checked, the transfer agent may require, prior to
registering any such transfer of the Common Stock such certifications and other
information, and if box (4) is checked such legal opinions, as the Company has
reasonably requested in writing, by delivery to the transfer agent of a standing
letter of instruction, to confirm that such transfer is being made pursuant to
an exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
[Name of Transferor],
By
Name:
Title:
Dated:
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